Punjab & Haryana High Court: In a challenge against the impugned order dated 11-09-2023 whereby the application filed by the petitioner under Section 91 of the Code of Criminal Procedure (‘Cr.P.C.’) for preserving call details records with location chart of the police officials who arrested the Petitioner was rejected by the Additional Sessions Judge, Harpreet Singh Brar, J., set aside the order and passed necessary orders for preserving and production of such details.
BRIEF FACTS
The petitioner contends that the husband of the petitioner, Satnam Singh made a complaint against the police officials on 12-09-2020 due to which they held a grudge against him. Satnam Singh was arrested and allegedly 4 grams 85 milligrams of heroin were planted on him, and a First Information Report (‘FIR’) was registered on 03-12-2021 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (‘NDPS Act’) at Police Station Sadar, Hisar.
It is further contended by the petitioner that her husband was lifted from her house on 03-12-2021 at 10 a.m. in presence of the co-villagers and the recovery of alleged contraband was shown at a different location. The petitioner moved an application under Section 91 Cr.P.C. before the trial court for issuance of necessary direction to preserve call details and tower location details of the police officials at the relevant point of time. These details were extremely vital for proving that petitioner’s husband was not arrested at the time and place alleged by the investigating agency.
The counsel for the state contended that production of call details and tower location of the police officials would expose the secret informers who help them by intercepting the anti-social elements and these details could not be made available for public in routine manner and it would put the witnesses in danger. They contended that the trial court has rightly rejected the application filed by the petitioner on cogent grounds.
ANALYSIS OF THE JUDGMENT
Purpose of such details
The High Court noted that the trial court dismissed the application on the ground that the petitioner has not mentioned the purpose of collecting such details and hence without disclosing the necessity of such evidence, the application cannot be allowed.
The court further said that a perusal of application filed by the petitioner suggests that the petitioner took a specific ground that her husband was taken by the police from their house in Village Peerawali on 03-12-2021 at 10 a.m. in the presence of the co-villagers and the necessity of the details requested was to prove that the prosecution witnesses were not present at the place and time of alleged recovery. Therefore, summoning of call details records of witnesses is essential.
The Supreme Court in Suresh Kumar v. Union of India, 2015 (3) RCR (Criminal) 340, held that electronics records are admissible evidence in criminal trials and Section 65A and 65B of the Indian Evidence Act (‘IEA’) make such records admissible subject to the fulfilment of the requirements stipulated in 65B(4) of the said act. The court further said that “To that extent the appellant has every right to summon whatever is relevant and admissible in his defence including electronic record relevant to finding out the location of the officers effecting the arrest.”
Issue of proper Adjudication
For this issue the court analysed section 91(1) of Cr.P.C. which is as under:-
“91. Summons to produce document or other thing.
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
The court said that the legislative intent behind this Section is to ensure that no cogent material or evidence involved in the issue remains undiscovered in unearthing the true facts during investigation, enquiry, trial or other proceedings. And in this case preserving of the details was necessary, otherwise the same would be lost forever.
Right to Privacy vs. Right to life
The court said that while passing the appropriate direction for preserving and production of the details requested under Section 91, Cr.P.C., Right to Privacy of the police officials would be violated but the rights of the accused under Article 21 of the Constitution of India which ensures free and fair trial would prevail over the right to privacy of the police officials. Further, some extent of privacy can be breached for discovering the truth and rendering justice, which is fair to all stakeholders, the court said.
Denial of records amounts to miscarriage of justice
The court said that the denial of records to the accused by non-production of electronic records which is admissible under Section 65-A and 65-B of IEA would amount to miscarriage of justice. Section 91, Cr.P.C. helps in facilitating a fair and just resolution by ensuring relevant evidence is made available to the court for making informed decisions and arriving at a just and fair outcome and it empowers the Court to obtain vital documentary evidence from individuals or organizations, safeguarding against potential destruction, tampering, or loss of such crucial documents. This process is crucial in upholding the integrity of the judicial proceedings.”
The court further said that the power granted by Section 91 of the Cr.P.C. aims to procure evidence crucial for uncovering the truth and achieving justice. However, accessing call details or tower locations must not violate the privacy rights of police officials solely based on the accused’s claim. Prior to ordering the production of such information, the accused must demonstrate the necessity and relevance of this evidence to establish their innocence or guilt in the case.
The court added that as principles of natural justice are integral part of fair trial under Article 21 of the Constitution of India, any denial of the best available evidence or effective and substantial hearing to accused in proving defence would amount to denial of free and fair trial.
DECISION
In view of the observations made, without going into the merits of the case, the impugned order dated 11-09-23, was set aside by the court. The trial court was directed to pass necessary directions under Section 91 Cr.P.C. for preserving and production of the call details/tower location details of the phone numbers mentioned in Annexure A-1 attached with the application filed under Section 91 Cr.P.C. The petition stood disposed of.
[Paramjit Kaur v. State of Haryana, 2023 SCC OnLine P&H 3534, Decided on 04-12-2023]
Advocates who appeared in this case :
Counsel for the Petitioner: Advocate Amit Choudhary
Counsel for the State: Ms. Geeta Sharma
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