Punjab-Haryana High Court
Satnam @ Sattu vs State Of Haryana on 10 January, 2024
Neutral Citation No:=2024:PHHC:002991
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244 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR-1264-2020
Date of Decision: 10.01.2024
Satnam @ Sattu .....Petitioner
Versus
State of Haryana .....Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Lajpat Rai Sharma, Advocate for
Mr. Vivek Khatri, Advocate,
for the petitioner.
Mr. Rajiv Sidhu, DAG, Haryana.
****
HARKESH MANUJA, J.(Oral)
1. By way of present revision petition, prayer has been made for setting
aside the order dated 11.11.2020 passed by the Court of Additional Sessions
Judge, Hisar, whereby an application filed at the instance of petitioner-
accused for summoning/preserving call record/tower record of mobile
phones of the investigating officer, besides few other officials as well as of
some private individuals, stood dismissed.
2. In the present case, the petitioner was arrayed as an accused in FIR
No.30 dated 25.01.2020, registered under Section 21-B of the Narcotic
Drugs and Psychotropic Substances Act, 1985, at Police Station Sadar,
Hisar, wherein the final report was presented before the Illaqa Magistrate on
12.05.2020, followed by framing of charges by the Court of Additional
Sessions Judge, Hisar, vide order dated 29.10.2021.
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3. During the interregnum, the petitioner moved an application before
the Trial Court on 16.10.2020 invoking Section 91 Cr.P.C. for
summoning/preserving call record/tower record of mobile phones of the
investigating officer besides few other police officials as well as certain
other private individuals. The prayer made in the said application was
vehemently opposed at the instance of prosecution.
4. The Trial Court vide order dated 11.11.2020, declined the prayer
made on behalf of the petitioner while recording that the application was
vague as no reason/justification was specified for the purpose of preserving
the call details/tower location of mobile numbers pertaining to the police
officials or the private individuals, besides relying upon the decision made
by the Hon'ble Supreme Court in case of "Justice K.S. Puttaswamy and
another vs. Union of India" reported as (2017) 10 SCC 1, regarding right
to privacy.
5. Impugning the aforesaid order, learned counsel for the petitioner
submits that a serious dispute has been raised by the petitioner as regards the
place and time of his arrest by the investigating agency, which can only be
corroborated from the call details/tower location of the mobile phones of the
investigating officer/arresting officer and thus, the same being relevant for
the purpose of adjudication of the trial, is required to be preserved.
6. On the other hand, learned State counsel submits that a detailed and
reasoned order has been passed by the Trial Court, warranting no
interference by this Court. He also points out that relevant details
whatsoever were given in the application relating to the date, time and place
were not sufficient.
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7. I have heard learned counsel for the parties and gone through the
paper book.
8. In the present case, a serious dispute has been raised by the petitioner-
accused as regards the time and place of arrest by the arresting
team/investigating officer, which being part of his defence goes to the root
of the matter related to his implication or innocence in the FIR. Though, no
doubt relevant details have not been provided in the application filed at the
instance of petitioner, however, at the same time, the predicament of the
petitioner can also not be ignored that giving detailed reasons may also
expose his defence. In view of the categorical stand by the petitioner
regarding disputing the time and place of arrest by the police officials,
purpose and relevance of seeking call details/ tower location, are obvious for
the purpose of disputing the claim of the police officials in this regard by
making an effort to establish it by way of electronic evidence.
9. Therefore, learned Session Judge should not have out rightly rejected
the application of the petitioner in this regard. However, It cannot also be
denied that petitioner in application filed before the Trial Court invoking
Section 91 Cr.P.C, has sought records in an unbounded manner and right of
petitioner cannot be given a scope which intrudes into the right to privacy of
others which has to be given a protection as envisaged in Puttaswamy's case
(supra). Accordingly, a balancing exercise is necessitated as at one hand
there is the right of the petitioner to summon relevant electronic records
required for his defence, on the other hand, police officials' daily activities
can also not be exposed. Reference in this regard can also be made to
judgment passed by the Hon'ble Supreme Court in case titled as "Suresh
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Kumar vs. Union of India" 2015 (3) RCR (Criminal) 340. Relevant paras
No.7 and 8 of the aforesaid judgment are reproduced hereunder:-
8. That electronic records are admissible evidence in criminal
trials is not in dispute. Sections 65A and 65B of the Indian Evidence
Act make such records admissible subject to the fulfilment of the
requirements stipulated therein which includes a certificate in terms
of Section 65B(4) of the said Act. 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. Be that as it may we do not
at this stage wish to pre-judge the issue which would eventually fall
for the consideration of the Trial Court.
9. All that we are concerned with is whether call details which the
appellant is demanding can be denied to him on the ground that such
details are likely to prejudice the case of the prosecution by exposing
their activities in relation to similar other cases and individuals. It is
not however in dispute that the call details are being summoned only
for purposes of determining the exact location of the officers
concerned at the time of the alleged arrest of the appellant from
Yashica Palace hotel near the bus stand. Ms. Makhija made a candid
concession that any other information contained in the call details
will be of no use to the appellant and that the appellant would not
insist upon disclosure of such information. That in our opinion
simplifies the matter inasmuch as while the call details demanded by
the appellant can be summoned in terms of Section 65B of the Indian
Evidence Act such details being relevant only to the extent of
determining the location of officers concerned need not contain other
information concerning such calls received or made from the
telephone numbers concerned. In other words if the mobile telephone
numbers called or details of the callers are blacked out of the
information summoned from the companies concerned it will protect
the respondent against any possible prejudice in terms of exposure of
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sources of information available to the Bureau. Interest of justice
would in our opinion be sufficiently served if we direct the Trial Court
to summon from the Companies concerned call details of Sim
telephone No. 9039520407 and 7415593902 of Tata Docomo
company and in regard to Sim No. 9165077714 of Airtel company for
the period 24.02.2013 between 4.30 to 8.30 p.m.. We further direct
that calling numbers and the numbers called from the said mobile
phone shall be blacked out by the companies while furnishing such
details."
10. Judgement in Suresh Kumar's case (Supra) was also followed by a
coordinate bench of this Court in "Amit Vasudev vs State Of Punjab",
reported as 2018(4) Law Herald (P&H) 3383, and it was observed that:
"Every criminal trial is a process of discovery of truth. It is the duty
of a presiding Judge to explore every avenue open to him in order to
discover the reality and to advance the cause of justice."
11. I have also given due consideration to the judgements cited by learned
State Counsel in his support but they are not applicable in the facts and
circumstances of the present case. Observation in "Sucha Singh v. State of
Punjab", reported as 2015(4) R.C.R.(Criminal) 25 that only on the basis of
mobile phone calls details it cannot be held that the police officials were not
present in the area in question at the time of recovery, is not applicable in the
present case as relevant electronic records are required to be examined by
the trial court and finding regarding their admissibility or relevancy has to be
adjudged during trial and it cannot be commented upon at this stage. Also,
unlike in "Gurmeet Ram eRahim v. Central Bureau of Investigation",
reported as 2019(1) R.C.R.(Criminal) 561, charges have already been
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framed and more importantly, at this stage prayer is only for preservation of
electronic records, which gains significance in view of the fact that in
accordance with directions issued by the Central Government, electronic
records are preserved by the telecom companies only for a limited period
and therefore, timely preservation of these records is necessary.
12. Accordingly, considering the facts and circumstances of the present
case, wherein, the petitioner was allegedly arrested on 25.01.2020 at around
5 p.m. from near H.P. Petrol Pump, Bagla Road, T-Point, Hisar by the
investigating team comprising of ASI Naresh Kumar, HC Naveen Kumar,
Constable Virender, ASI Rajesh, ESI Purshotam and DSP Joginder Sharma;
let the call details pertaining to mobile numbers of the aforesaid officials
mentioned in the application along with the mobile tower location w.e.f.
24.01.2020 to 27.01.2020 be preserved as piece of evidence so that the same
can be referred to by the petitioner in his defence.
13. In view of the discussion made herein above, the present petition is
allowed and the order dated 11.11.2020 is set aside and it is directed that
electronic records as specified in the above para shall be preserved by the
telecom companies.
10.01.2024 (HARKESH MANUJA)
sonika JUDGE
Whether speaking/reasoned: yes/no
Whether reportable? yes/no
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