In a case arising from allegations of stalking and sexual harassment, the Delhi High Court was called upon to decide whether an accused can seek preservation of electronic records, such as call detail records, online transactions, and travel data, before the charge stage, despite objections of privacy and claims of irrelevance. At the heart of the matter was the interplay between the accused’s right to secure potentially exculpatory evidence and the statutory limits under Section 91 Criminal Procedure Code, 1973 (Cr.P.C.) Read on to see how the Court balanced these competing claims and interpreted the scope of its inherent powers.
Brief facts:
The case stems from allegations of stalking and sexual harassment by the complainant against the petitioner, leading to registration of an FIR under sections 201/204/354/354-D/506/509 of the Indian Penal Code, 1860 (IPC) and section 67 of the Information Technology Act, 2000. The complainant alleged persistent unwanted advances since 2020, while the petitioner maintained they had a long-term consensual relationship that deteriorated after her husband learned of it. During the trial, the petitioner sought preservation of slot deposit pulsa call detail records of certain mobile numbers, online transaction data indicating gifts and services sent by the complainant, CCTV footage from Delhi Airport, and airline records, asserting these would establish the consensual nature of their relationship. The trial court first permitted the preservation of the requested material but subsequently withdrew this order, citing lack of necessity, privacy concerns, and the petitioner’s alleged tampering with evidence. The petitioner approached the High Court, which granted interim directions for preservation. The complainant’s appeal against these interim directions before the Supreme Court was unsuccessful, and the matter returned to the High Court for adjudication on the merits.
Contentions of the Petitioner:
The petitioner argued that his limited request was for preservation, not production, of CDRs and electronic data over a defined period to establish an intimate relationship with the complainant, thereby discrediting the allegations and constituting exculpatory evidence under Sections 6, 7, and 8 of the Evidence Act, 1872. He claimed the material, including online transactions and airport records, was perishable and risked becoming irretrievable if not preserved. Alleging that the complainant’s husband had assaulted him and deleted data from his phone, he denied any destruction of evidence on his part. He submitted that the right to a fair trial under Article 21 of the Constitution outweighs privacy concerns, faulted the Magistrate for reviewing an earlier preservation order, and maintained that complete CDRs were essential despite partial records already being available.
Contentions of the Respondent:
The State argued that the request under Section 91 Cr.P.C. was beyond scope, lacking necessity or relevance at the charge-framing stage, and could only be considered during defence evidence. It contended that the petitioner, already facing a Section 201 IPC charge for destroying evidence, sought material that would only confirm acquaintance, not the nature of the relationship. The Investigating Officer had obtained limited CDRs, deemed earlier records unnecessary, and pointed to the petitioner’s post-FIR conduct and concealment of facts. The complainant asserted that the data was irrelevant to the alleged offence period, would breach her privacy, and risk harassment, while any such request amounted to impermissible further investigation at the pre-charge stage, with remedies available during defence evidence.
Observation of the Court:
The Court emphasized the sanctity of preserving exculpatory evidence to ensure a fair trial under Article 21 of the Constitution, noting that "fair investigation and fair trial are concomitants to preservation of fundamental right of an accused under Article 21 of the Constitution of India." It observed that the petitioner's prayer was limited to preservation, not link slot 5k production or disclosure, and that CDRs could reveal communication patterns (e.g., call frequency, duration) relevant to interpreting the partie's relationship, potentially inculpatory or exculpatory when examined with other evidence.
The Court rejected the allegation of evidence destruction as a bar to preservation, given the petitioner's counter-complaint of forcible deletion, and highlighted the perishable nature of electronic records, stating that "if data and information such as CDRs and other electronic records, are not preserved at this stage, they would quite definitely be weeded-out by the service providers or be over-written in their information technology systems; and would therefore subsequently become completely irretrievable and unavailable." Applying the tests under section 91 Cr.P.C., it held the data met necessity and desirability, as it might be required for trial, even at the defence stage, and declining preservation despite awareness of dissipation would prejudice fairness, amounting to "a travesty of justice."
While invoking res gestae under sections 6, 7, and 8 of the Indian Evidence Act, 1872, the Court noted that past conduct could be relevant to facts in issue, refusing to prejudge relevance or admissibility at this stage. Addressing privacy concerns, it balanced rights by limiting preservation to the petitioner's CDRs and complainant-related transactions with him/his family, with in-camera proceedings possible later. The Court critiqued the criminal justice system's lack of mechanisms for the accused to collect exculpatory evidence, warning against investigative biases, and affirmed its inherent powers under section 528 BNSS to direct preservation ex-debito justitiae.
The decision of the Court:
In light of the above discussion, the Court partly allowed the petition, setting aside the impugned orders and restoring the earlier preservation order with modifications. It directed retention of the accused’s CDRs and other specified electronic records, along with Section 65B Evidence Act certificates, confined to transactions between the complainant and the accused or his family. The Court further ordered destruction of the complainant’s CDRs, instructed the Magistrate to secure complete responses from relevant entities, verify data accessibility, and keep the preserved material in custody without disclosure at this stage, while leaving it open to the parties to seek production or disclosure at the appropriate stage of trial in accordance with law.
Case Title: Sohail Malik Vs. State Nct Of Delhi & Anr.
Case No: CRL.M.C. 6745/2024
Coram: Justice Anup Jairam Bhambhani
Advocate for Petitioner: Sr. Adv. N. Hariharan, Advs. Subhash Gulati, Punya, Aman Akhtar, Vasundhara N., Vinayak Gautam, Vasundhra Raj Tyagi, Sima Gulati, Sharian Mukherji, Rekha Angara, Sana Singh, Pankaj Yadav and Diskha Narula.
Advocate for Respondent: APPs Utkarsh and Digam Singh Dagar Advs. Kumud Nijhawan, Kunal Bhardwaj, Paras, Mohit Rathee, Garima Saini, Abhay Kumar, A. K. Sharma, Shagum Ruhil, Karan Chopra, and Insp. Sunil Kumar
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