The High Court of Punjab and Haryana directed the trial Court to preserve the call details of the policemen who arrested the accused, observing that the right to a fair trial of the accused will prevail over the right to privacy of policemen and held that denial of an adequate opportunity to the accused by non-production of the electronic record, which is permissible under Sections 65-A and 65-B of the Indian Evidence Act in a criminal trial, would amount to a miscarriage of justice.
Brief Facts:
The petitioner filed the present petition challenging the order passed by the Additional Sessions Judge whereby the plea application filed by the petitioner under Section 91 CrPC for preserving the call details records with location chart was dismissed.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the husband of the petitioner had made a complaint against the police officials, on the account of which they started nurturing a grudge against him. It was contended by the petitioner that her husband was falsely implicated in a drug case under the NDPS Act because he had complained against police officials. Further, it was contended that the call details and the tower locations are extremely vital for proving that the husband of the petitioner was not arrested at the time and place alleged by the investigating agency. Any denial of these details would seriously prejudice the case of the husband of the petitioner to prove his innocence. Moreover, the electronic record is admissible in terms of Sections 65-A and 65-B of the Indian Evidence Act.
Contentions of the Respondent:
The learned counsel appearing on behalf of the state contended that the production of the call details and the tower location of the police officials would expose the secret informers, who help the investigating agency in intercepting the anti-social elements and these details cannot be made available for the public in routine matter. It would put the witnesses in danger also and the learned trial Court has rightly rejected the application filed by the petitioner on cogent grounds.
Observations of the court:
The court after considering the submissions observed that preserving and requisitioning of the call details and tower location details would be necessary, otherwise the same would be lost forever. The right of the accused to invoke the provisions of Section 91 Cr.P.C. for obtaining documents in support of his defence has been recognized by the Constitutional Courts.
It was stated that the legislative intent behind the enactment of Section 91 Cr.P.C. is to ensure that no cogent material or evidence involved in the issue remains undiscovered in unearthing the true facts during the investigation, enquiry, trial or other proceedings and further no doubt while passing the appropriate direction for preserving and production of call details/tower location details under Section 91 Cr.P.C. would violate the right to privacy of the police officials but the right of the accused under Article 21 of the Constitution of India in ensuring free and fair investigation/trial would prevail over the right to privacy of the police officials and some the accused under Article 21 of the Constitution of India in ensuring free and fair investigation/trial would prevail over the right to privacy of the police officials.
The Court further said that the denial of an adequate opportunity to the accused by non-production of the electronic record, which is admissible under Sections 65-A and 65-B of the Indian Evidence Act in a criminal trial, would amount to a miscarriage of justice.
The decision of the Court:
The court directed the trial court to pass necessary directions under Section 91 Cr.P.C. for preserving and producing the phone numbers' call details/tower location details.
Case Title: Paramjit Kaur vs State of Haryana
Coram: Hon’ble Mr. Justice Harpreet Singh Brar
Case No.: CRR No.2605 of 2023 (O&M)
Advocate for the Petitioner: Mr. Amit Chaudhary
Advocate for the Respondent: Ms. Geeta Sharma
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