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2017 DIGILAW 636 (GUJ)

Pradeep Radheshyam Vyas v. State of Gujarat

2017-03-21

SONIA GOKANI

body2017
JUDGMENT : Sonia Gokani, J. 1. By way of present petition preferred by the petitioner under Article 226 of the Constitution of India, the petitioner has prayed for issuing directions against the respondent No. 5-Central Bureau of Investigation, to conduct the investigation qua the illegal obtaining of Call Detail Records (for short 'CDRs') by the Gujarat Police in respect of the mobile phone of the petitioner in connection with the investigation of the crime alleged to have been committed in the State of Maharashtra. 2. The facts of the case if put in a nutshell are as under : 2.1 The petitioner is a cardiologist by profession having his clinic at Mumbai. Mrs. Meenakshi Narsimha Moorthy, mother of the respondent No. 3, was referred to the petitioner by the patient's family doctor in the month of June, 2010. She was admitted to the petitioner's nursing home in the month of May, 2011 and she suffered a cardiac arrest resulting into her natural death on May 06, 2011. 2.2 The respondent No. 3 made a complaint against her own brother, her brother's wife and her own daughter as well as against the present petitioner. By letters dated May 26, 2011 and May 31, 2011, sent by her advocate, she called upon the Borivali Police Station, to conduct the investigation in the matter and register her complaint. It is the say of the petitioner that on June 13, 2011, the respondent No. 3 addressed a letter to the Senior Inspector making allegations against her family members and the petitioner and in the said letter, the respondent No. 3 stated that she is the wife of the then Additional Director General of Police (Prisons). In addition to various allegations made by her, she has stated that an inquiry was conducted by the police at Ahmedabad and a report detailing the cellphone analysis and data has been sent by the Deputy Commissioner of Police (Crimes), Ahmedabad, to the Police Officer at Mumbai. The letter mentions that the Gujarat Police had called for CDRs of the petitioner and submitted on June 15, 2011, stating that the CDRs of the certain number were required to be collected and investigated. In subsequent correspondence, she called for call details, duration of calls, location of persons against whom she has made allegations and has also given her own analysis of the CDRs. In subsequent correspondence, she called for call details, duration of calls, location of persons against whom she has made allegations and has also given her own analysis of the CDRs. The same had been shared by the Gujarat Police. The petitioner has stated that the allegations made by the respondent No. 3 in the complaint concerns the crime alleged to have been committed in the State of Maharashtra. The investigation has been carried out by Maharashtra Police. In the first information report lodged with Borivali Police Station at Mumbai, Maharashtra and the Courts of Maharashtra have jurisdiction to adjudicate the issue. The issue that has been raised by the petitioner is as to under what authority and for what purpose the Gujarat Police conducted inquiry into the matter by getting themselves involved in the investigation carried out by Maharashtra Police. The petitioner also submitted that the nature of inquiry conducted by the Gujarat Police and the purpose under which it was conducted and under whose orders it was done, are the issues, which require investigation. 2.3 Secondly, the petitioner has raised the issue with regard to the procedure followed by the Gujarat Police for obtaining CDRs, which includes personal data, such as phone number of calling and called parties, duration of call, the time and date of the call, location of the parties and other such personal information. According to the petitioner, telecommunication companies maintain records to comply with the Government regulations and for internal reporting purpose. The CDRs contain personal data of individuals and any illegal use of the same would be a serious intrusion of an individual's right to privacy under Article 21 of the Constitution of India. No person should be deprived of his right to privacy, except by the established procedure of law. It is further submitted that if an officer in-charge of a Police Station considers the procurement of CDRs necessary or desirable for the purposes of any investigation or inquiry before such officer, he may issue a written order calling upon the CDRs to be produced. However, the same cannot be obtained by the Police, except in a situation where an officer in-charge of a Police Station considers the procurement of CDRs necessary or desirable for the purpose of any investigation or inquiry before such officer. However, the same cannot be obtained by the Police, except in a situation where an officer in-charge of a Police Station considers the procurement of CDRs necessary or desirable for the purpose of any investigation or inquiry before such officer. There again, he is required to follow section 91 of the Code of Criminal Procedure, which permits to issue the summon to produce the document. According to him, a copy of the Circular dated October 15, 2010 issued by the office of the Director General of Police, Gujarat State, prescribes the procedure to be followed by the Police for obtaining the CDRs. His grievance is that the Gujarat Police procured the CDRs before the first information report was lodged in the State of Maharashtra. The said Circular dated October 15, 2010, necessitates giving the first information report particulars like station diary number, etc. Not only the Gujarat Police illegally obtained the CDRs, but they appear to have shared the same with the respondent No. 3 and she, in turn, has used the same for filing the complaint with Borivali Police Station. 2.4 It is also the grievance of the petitioner that the respondent No. 3 ought not to have been provided the CDRs either by the Gujarat Police or she, in turn, to any other authority in spite of the well laid down procedure and their action has made a breach of right of privacy, which encompasses within it freedom from unwarranted interference by the State and the right to prevent the unauthorized procurement of personal information. The petitioner's allegations are against the Gujarat Police. He has alleged that it would be desirable that the investigation is not done by the Gujarat Police, but the independent agency as husband of the respondent No. 3 at the time of filing of the petition was the head of the Gujarat Police. If the investigation is done by the Gujarat Police, the same would not be fair and independent investigation. If the investigation is done by the Gujarat Police, the same would not be fair and independent investigation. The petitioner in the above background has sought for the following substantial reliefs : "11(A) That the Hon'ble Court be pleased to issue a writ, order or direction declaring that the action of the police of the State of Gujarat in procuring Call Data Records and the action of the police in sharing the same with Respondent No. 3 are arbitrary, illegal and violative of Articles 14 and 21 of the Constitution of India; (B) That the Hon'ble Court be pleased to issue an appropriate writ, order or direction directing the Central Bureau of Investigation or any other independent agency/body to conduct an inquiry/investigation into the matters stated in paragraphs 3.3 to 3.6 above and all other matters relating to the procurement, sharing or use of Call Data Records and file a report before this Hon'ble Court; (C) That the Hon'ble Court be pleased to issue an appropriate writ, order or direction directing that appropriate action including departmental proceedings and criminal proceedings be initiated against the erring police officers of the State of Gujarat and all others involved in illegally procuring, sharing or using the Call Data Records; (D) That the Hon'ble Court be pleased to direct the respondents to pay damages to the petitioner for the injury caused to the petitioner by his right to privacy under Article 21 of the Constitution of India having been violated;" 3. The petitioner proposed an amendment in the memorandum of the petition, wherein he has added that the CDRs shared by the Gujarat Police with the respondent No. 3 gets confirmed from the contents of the charge sheet filed by Borivali Police Station on March, 2014 and from the order passed by the learned Additional Chief Metropolitan Magistrate dated June 08, 2015, granting permission to the concerned officer to carry out further investigation. It is further urged that the action of the Gujarat Police is in violation of Article 12 of the Universal Declaration of Human Rights, 1948, and Article 17 of the International Covenant on Civil and Political Rights, 1966, to which India is a party, which has been ratified by India in the year 1979. It is further urged that the action of the Gujarat Police is in violation of Article 12 of the Universal Declaration of Human Rights, 1948, and Article 17 of the International Covenant on Civil and Political Rights, 1966, to which India is a party, which has been ratified by India in the year 1979. It is further alleged that the Gujarat Police has illegally and without any authority carried out the interception, monitoring and decryption of the petitioner's data and also illegally shared it with the respondent No. 3. Likewise, it is urged that the respondent No. 4 is a telecommunication company, has inherent public duty to maintain confidentiality of customer information and it is also under its statutory obligation to comply with the terms and conditions of the licence granted to it by the Central Government. The petitioner has also prayed for amendment in the prayer clauses, which read as under : "A-1 That the Hon'ble Court be pleased to issue a writ, order or direction prohibiting Respondent No. 2 from sharing the petitioner's Call Detail Records already procured by it with any other person henceforth and prohibiting Respondent No. 2 from procuring Call Detail Records except according to procedure established by law and except where necessary for the purpose of an investigation before Respondent No. 2 and from subjecting the petitioner to any unlawful or arbitrary interference with his privacy or correspondence. (A-2) That the Hon'ble Court be pleased to issue a writ, order or direction prohibiting Respondent No. 3 from sharing or using the petitioner's Call Detail Records obtained by Respondent No. 3 with any person; (A-3) That the Hon'ble Court be pleased to issue a writ, order or direction prohibiting Respondent No. 4 from parting with or sharing the petitioner's Call Detail Records or other personal information generated by it or lying with it with any person henceforth except upon a lawful requisition from the competent authority and directing Respondent No. 4 to maintain customer confidentiality and privacy of communications in accordance with law." 4. This Court has heard in detail Shri Salil Thakore, learned counsel appearing with Ms. Amrita Thakore. A fortiori, he has argued on the line of memorandum of the petition. It is further urged that this Court also would have jurisdiction to entertain the present petition as the cause of action has also arisen within the jurisdiction of this Court. This Court has heard in detail Shri Salil Thakore, learned counsel appearing with Ms. Amrita Thakore. A fortiori, he has argued on the line of memorandum of the petition. It is further urged that this Court also would have jurisdiction to entertain the present petition as the cause of action has also arisen within the jurisdiction of this Court. It is strenuously urged before this Court that even though the Court at Mumbai would have jurisdiction, that may not be a ground for this Court not to entertain the present petition. 5. The learned Additional Public Prosecutor appearing for the respondent-State has objected to the entertainment of the present petition. As according to her, the Court at Mumbai is in seisin with the criminal case, where the charge sheet has already been laid. All the prayers which have been sought for can be asked from the concerned Court, which would be far more equipped to comprehend all the aspects. 6. Considering the detailed pleadings, so also the pleadings in the amended petition and the rival submissions of the parties, it could be noticed at the outset that the principal objection in this petition is of the Gujarat Police obtaining CDRs of the petitioner from the respondent No. 4, a telecommunication company, which is one of the largest mobile network operators in the country. Raising the issue of confidentiality of the customers' information and the right to privacy and linking the same to the fundamental right of an individual, the sharing of the data is objected to, more particularly because no complaint is lodged in the State of Gujarat. It is also objected that the calling for the data is contrary to the Circular dated October 15, 2010 issued by the Director General of Police, Gujarat State. 7. The challenge is also made on the ground that the respondent No. 4 when was granted licence, there is an express condition for it to observe extreme confidentiality and to ensure that the information is secured and protected. Sharing of the data by the Gujarat Police to the respondent No. 3 is also severely objected to on the ground that the respondent No. 3 is a private person, who has no authority to have such access. Sharing of the data by the Gujarat Police to the respondent No. 3 is also severely objected to on the ground that the respondent No. 3 is a private person, who has no authority to have such access. Again it is also severely objected to on the ground that she, in turn, had shared the data to the Investigating Agency of Maharashtra, which not only formed a part of the papers of charge sheet but eventually has been made the basis for directing further investigation by the concerned Court. 8. This petition is preferred under Article 226 of the Constitution of India, where the petitioner has sought for declaration that the action of the Gujarat Police in procuring the CDRs of the petitioner and sharing them with the respondent No. 3, be declared an act of arbitrariness, illegality and violative of Articles 12, 14 and 21 of the Constitution of India. Direction is also sought that the Central Bureau of Investigation or other independent agency be directed to conduct an inquiry or investigation in the matter; with a further request to issue direction to initiate departmental proceedings against the erring police officers. He has also sought for compensation and damages. 9. This Court needs to bear in mind that the respondent No. 3 is the complainant of the first information report being I-C.R. No. 106 of 2011 registered on June 13, 2011 with Borivali Police Station, where the accused are alleged of committing offences punishable under sections 323, 341, 352, 420, 468 and 34 of the Indian Penal Code. The present petitioner, in his capacity as a Cardiologist is arraigned as one of the accused and is alleged to have connived with the other accused in committing the crime alleged. 10. The criminal proceedings are pending in the State of Maharashtra, that per se may not be a bar for availing the writ remedy as the violation alleged is of the fundamental right and also of other right. It is also maintainable qua the respondent No. 4 who is though not a 'State', but is discharging vital public function. For enforcement of rights protected under Part III of the Constitution of India and for any other purpose writ jurisdiction under Article 226 of the Constitution of India is maintainable. It is also maintainable qua the respondent No. 4 who is though not a 'State', but is discharging vital public function. For enforcement of rights protected under Part III of the Constitution of India and for any other purpose writ jurisdiction under Article 226 of the Constitution of India is maintainable. The respondent No. 4, when has with him the call data records of the petitioner, has certain serious obligations to fulfill and it also has responsibility to maintain to an extent his right of privacy. It discharges public function. Of course, when it comes to the petitioner violating the law, civil or criminal, law would take its own course and collection of all his personal details, following of course, the due procedure. 11. The Apex Court in a decision in the case of Assam Sanmilita Mahasangha and others, etc. v. Union of India and others, reported in (2015) 3 SCC 1 , has emphasised the role of the High Court and the Apex Court while discussing the scope of right to life and property, and sovereignty and integrity of the Nation. It is held that where it is a question of violation of fundamental rights, delay and laches by itself would not be sufficient to shut the doors of the Court for any petitioner. The grounds of delay and laches also cannot deny the issue of maintainability of the writ petition under Article 32 of the Constitution of India. Before the Apex Court, the question was of tribal and non-tribal population of Assam, which had raised the plea to restrain the massive influx of illegal immigrants from the neighbouring country. 12. In the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, reported in (1998) 8 SCC 1 , the Apex Court has held that existence of an alternative remedy is not a constitutional bar to High Court's jurisdiction but is a self-imposed restriction. The alternative remedy would not operate as a bar (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. It would be appropriate to reproduce the relevant observations of the said decision, which read as under : "14. It would be appropriate to reproduce the relevant observations of the said decision, which read as under : "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 13. In the case of Popcorn Entertainment and another v. City Industrial Development Corporation and another, reported in (2007) 9 SCC 593 , the Apex Court ingeminated the principle laid down in the decision in the case of Whirlpool Corporation (supra) qua the existence of the alternative remedy. 14. In the decision of the Apex Court in the case of Himmatlal Harilal Mehta v. State of M.P. and two others reported in AIR 1954 SC 403 , an appeal was preferred before the Apex Court arising from the judgment of High Court of Judicature at Nagpur, which dismissed the petition questioning the vires of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947. The appellant had declined to pay taxes in respect of purchases made realising that it could not be made legally liable for payment of tax in the State of Madhya Pradesh, as the transactions done or effected in Madhya Pradesh not being "sales" within that State. Apprehending that the Company may be subjected to the payment of the tax without authority of law, an application was preferred in the High Court of Judicature of Nagpur praying for an appropriate writ or writs which may secure to the company protection from the impugned Act and its enforcement by the State. Further, the Apex Court held that the High Court was in error in dismissing the application on the ground that it was not entitled to relief under the provisions of Article 226 of the Constitution by holding thus : "9. In our opinion, the contentions raised by the learned Advocate-General are not well founded. It is plain that the State evinced an intention that it could certainly proceed to apply the penal provisions of the Act against the appellant if it failed to make the return or to meet the demand and in order to escape from such serious consequences threatened without authority of law, and infringing Fundamental Rights, relief by way of a writ of mandamus was clearly the appropriate relief. In - 'Mohd. Yasin v. Town Area Committee' AIR 1952 SC 115 (D), it was held by this Court that a licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his fundamental right to carry on his business and therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under Art. 32, 'a fortiori' also under Art. 226. These observations have apposite application to the circumstances of the present case. Explanation II to section 2(g) of the Act having been declared 'ultra vires', any imposition of sales tax on the appellant in Madhya Pradesh is without the authority of law, and that being so a threat by the State by suing the coercive machinery of the impugned Act to realize it from the appellant is a sufficient infringement of his Fundamental Right under Art. 19(1)(g) and he was clearly entitled to relief under Art. 226 of the Constitution. The contention that because of a remedy under the impugned Act was available to the appellant it was disentitled to relief under Art. 226 stands negatived by the decision of this Court in -" AIR 1953 SC 252 (B) above referred to. There it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his Fundamental Right had been infringed and sought relief under Art. 226. Moreover, the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy." 15. The Apex Court in the decision in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, reported in (1989) 2 SCC 691 , has decided as to when the writ can be issued. It held that "any person or authority" performing public duty and owing positive obligation to the affected party, is amenable to the writ jurisdiction. The Court also held that Article 226 of the Constitution confers wide powers on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights and the words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not of much relevance. What is relevant is the nature of the duty imposed on the body. 16. In the case of K.K. Saksena v. International Commission on Irrigation and Drainage and others, reported in (2015) 4 SCC 670 , the Apex Court ingeminated the ratio laid down in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust (supra) by holding that the powers to issue writ are not limited to enforcement of the fundamental rights and non-fundamental rights. It would be profitable to reproduce the relevant observations of the said decision, which read as under : "32. It would be profitable to reproduce the relevant observations of the said decision, which read as under : "32. If the authority/body can be treated as a 'State' within the meaning of Article 12 of the Constitution of India, indubitably writ petition under Article 226 would be maintainable against such an authority/body for enforcement of fundamental and other rights. Article 12 appears in Part III of the Constitution, which pertains to 'Fundamental Rights'. Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. Article 226 of the Constitution, which deals with powers of High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose. 33. In this context, when we scan through the provisions of Article 12 of the Constitution, as per the definition contained therein, the 'State' includes the Government and Parliament of India and the Government and Legislature of each State as well as "all local or other authorities within the territory of India or under the control of the Government of India". It is in this context the question as to which body would qualify as 'other authority' has come up for consideration before this Court ever since, and the test/principles which are to be applied for ascertaining as to whether a particular body can be treated as 'other authority' or not have already been noted above. If such an authority violates the fundamental right or other legal rights of any person or citizen (as the case may be), writ petition can be filed under Article 226 of the Constitution invoking the extraordinary jurisdiction of the High Court and seeking appropriate direction, order or writ. However, under Article 226 of the Constitution, the power of the High Court is not limited to the Government or authority which qualifies to be a 'State' under Article 12. Power is extended to issue directions, orders or writs "to any person or authority". Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also 'for any other purpose'. Power is extended to issue directions, orders or writs "to any person or authority". Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also 'for any other purpose'. Thus, power of the High Court takes within its sweep more "authorities" than stipulated in Article 12 and the subject matter which can be dealt with under this Article is also wider in scope." 17. In the case of Ramesh Ahluwalia v. State of Punjab and others, reported in (2012) 12 SCC 331, the question was of maintainability of writ petition under Article 226 of the Constitution of India. The question was as to against whom such writ is available and the answer was a person performing public duty/public functions not necessarily imposed by statute. The respondent was an unaided private school and did not fall within the meaning of "State" nor any other authority/instrumentality of the State, although the Managing Committee was running the schools throughout India and performed important public functions. The Apex Court held that the writ cannot be denied if the person or authority concerned performs public duty not necessarily imposed by statute. As the respondent therein performed the public functions i.e. providing education to children in their institutions throughout India, it held that writ cannot be withheld merely because the respondent is a purely unaided private educational institution. The body must be financially, functionally and administratively dominated by or under pervasive control of Government to fall within definition of "State". 18. These decisions, thus, lay down very clearly that the exercise of extraordinary powers under the writ jurisdiction of Article 226 of the Constitution is permissible where the breach of fundamental rights is pleaded and even for other purposes as well. 18.1 In case of violation of principles of natural justice and where proceedings are wholly without jurisdiction or where the vires of the Act is challenged. 18.2 These powers can be invoked against the authority which qualifies as the 'State' and qua those who discharge their public functions or public duty, not necessarily imposed in the statute. 18.3 As observed hereinbefore, against all the respondents, this petition is maintainable and as violation is pleaded of fundamental rights, particularly right of privacy, and even otherwise, for other purposes also, maintainability is not the ground on which the petitioner can be non-suited. 18.3 As observed hereinbefore, against all the respondents, this petition is maintainable and as violation is pleaded of fundamental rights, particularly right of privacy, and even otherwise, for other purposes also, maintainability is not the ground on which the petitioner can be non-suited. Corollary to this is whether the petitioner deserves to be granted any relief in this petition. 19. On the ground that the right of privacy is the fundamental right and also urging that calling for the CDRs from the service provider (respondent No. 4) by the Gujarat Police itself was an act of illegality, this challenge is made. It is also alleged further that making available to the respondent No. 3 the CDRs was not only breach of right of privacy of the petitioner, but an unauthorised act of Gujarat Police. 20. The CDRs being important and vital link in establishing various details are ordinarily being collected by the Investigating Agency in most of the criminal matters. 20.1 Collecting of CDRs is found to be a very useful tool to prove whereabouts of parties and also to link and resolve many unexplained links. CDRs are held to be the effective tool by a Division Bench of this Court in the case of State of Gujarat v. Sureshkumar alias Tino Ranjansinh Baria and another, while dealing with Criminal Miscellaneous Application No. 8036 of 2014, by holding thus : "It would be apt to refer to certain vital details CDR, which known as Call detail record as also Call Data record, available on the internet [courtesy Wikipedia]. The CDR contains data fields that describe a specific instance of telecommunication transaction minus the content of that transaction. CDR contains attributes, such as [a] calling party; [b] called party; [c] date and time; [e] call duration; [f] billing phone number that is charged for the call; [g] identification of the telephone exchange; [h] a unique sequence number identifying the record; [i] additional digits on the called number, used to route the call; [j] result of the call i.e., whether the same was connected or not; [k] the route by which call left the exchange; [l] call type [i.e., voice, SMS, etc.]. Call data records also serve a variety of functions. For telephone service providers, they are critical to the production of revenue. Call data records also serve a variety of functions. For telephone service providers, they are critical to the production of revenue. For law enforcement, CDRs provide a wealth of information that can help to identify suspects, in that they can reveal details as to an individual's relationships with associates, communication and behavior patterns and even location data that can establish the whereabouts of an individual during the entirety of the call. For companies with PBX telephone systems, CDRs provide a means of tracking long distance access, can monitor telephone usage by department; including listing of incoming and outgoing calls. Relevant would be also to refer to Mobile Phone Tracking and phone positioning briefly at this stage. The mobile phone tracking refers to attaining of the current position of a mobile phone, stationary or moving. Localization may occur either via multilateration of radio signals between the radio towers of the network and the phone or simply via GPS. To locate the phone using multilateration of radio signals, it must emit atleast the roaming signal to contact the next nearby antenna tower, but the process does not require an active call. GSM is based on the signal to nearby antenna masts. Mobile positioning includes locations-based services that disclose the actual coordinates of a mobile phone bearers and it is the technology used by telecommunication companies to approximate the location of a mobile phone and thereby also its user. It is more properly termed as locating rather than positioning. The technology of locating is based on measuring power levels and antenna patterns and uses the concept that a powered mobile phone always communicates wirelessly with one of the closest base stations, so knowledge of the location of the base station implies the cell phone is nearby. Whereas, the advanced systems determine the sector in which the mobile phone resides and roughly estimate also the distance to the base station. Further proximation can be done by interpolating the signals between adjacent antenna towers. Qualified services may achieve a precision of down to 50 meters in urban areas, where mobile traffic and density of antenna towers is sufficiently high. Rural and desolate areas may see miles between base stations and therefore possibly determine locations a little less precisely. Further proximation can be done by interpolating the signals between adjacent antenna towers. Qualified services may achieve a precision of down to 50 meters in urban areas, where mobile traffic and density of antenna towers is sufficiently high. Rural and desolate areas may see miles between base stations and therefore possibly determine locations a little less precisely. In order to route calls to a phone, the cell towers listen for a signal sent from the phone and negotiate which tower is best able to communicate with the phone. As the phone changes location, the antenna towers monitor the signals and phone is roamed to an adjacent tower as appropriate. By comparing the relative signal strength from multiple antenna towers, a general location of a phone can be roughly determined. Other means make use of the antenna pattern, which supports angular determination and phase discrimination. Newer phones may also allow the tracking of the phone even when turned on and not active in a telephone call. In a simpler language, it can be said that the technology can be best put to use in the form of CDRs which contains data fields describing various details, which also includes not only the phone number of the subscriber originating the call and the phone number receiving such call etc., but, the details with regard to the individual's relationships with associates, the behavior patterns and the whereabouts of an individual during the entirety of the call. The whole purpose of CDR is not only to establish the number of phone calls which may be a very strong circumstance to establish their intimacy or behavioral conduct. Beyond that, such potential evidence also can throw light on the location of the mobile phone and in turn many a times, the position and whereabouts of the person using them with the aid of mobile phone tracking and phone positioning, location of mobile phone and its user is feasible. As the mobile phone ordinarily communicates wirelessly with the closest base station. In other words, ordinarily, signal is made available to a mobile phone from the nearest Mobile tower. In the event of any congestion or excessive rush on such mobile tower, there is an inbuilt mechanism of automatic shifting over to the next tower and if access is also not feasible there, to the third available tower. In other words, ordinarily, signal is made available to a mobile phone from the nearest Mobile tower. In the event of any congestion or excessive rush on such mobile tower, there is an inbuilt mechanism of automatic shifting over to the next tower and if access is also not feasible there, to the third available tower. This being largely a scientific evidence it may have a material bearing on the issue, and therefore, if such evidence is established scientifically before the Court concerned, missing link can be provided which more often than not get missed for want of availability of credible eye-witnesses. We have noticed that in most of the matters these days, scientific and technical evidence in the form of Call Data Record is evident. However, its better and further use for the purpose of revealing and establishing the truth is restricted by not examining any witness nor bringing on record the situation of the mobile towers. Such kind of evidence, more particularly in case of circumstantial evidence will be extremely useful and may not allow the truth to escape, as the entire thrust of every criminal trial is to reach to the truth." 21. According to the petitioner, the collection of the CDRs by the Gujarat Police was prior to the lodgment of the first information report before Maharashtra Police. The subsequent communication by the respondent No. 3 with Borivali Police Station also reveals sharing of data by the Gujarat Police with the respondent No. 3. 22. The petitioner has relied upon the decision of the Apex Court rendered in the case of Amar Singh v. Union of India and others, reported in (2011) 7 SCC 69 , where the Apex Court was considering the right of privacy under Article 19(1)(a) of the Constitution in relation to phone tapping. It held that it is the service provider's duty to act promptly and in public interest, on request received from the Government agencies for interception, but at the same time, the service provider should be vigilant about fake request. The Apex Court held that interception is an invasion of privacy which is protected as a fundamental right, and therefore, it can be resorted to, only on the basis of a genuine official communication. The doubtful communication may be acted upon initially but its authenticity must be verified at the earliest. The Apex Court held that interception is an invasion of privacy which is protected as a fundamental right, and therefore, it can be resorted to, only on the basis of a genuine official communication. The doubtful communication may be acted upon initially but its authenticity must be verified at the earliest. While dismissing the writ seeking various reliefs against the State, liberty was given to the petitioner to seek appropriate legal remedy against service provider for unauthorized phone tapping. The Central Government was also directed to frame guidelines so as to avoid the recurrence of such instances in future. The Apex Court also held that in view of public nature of function of the service provider, it is inherent in its duty to act carefully and with the sense of responsibility. In the matter before the Apex Court, one of the conditions of grant of licence was that the service provider was to render assistance, as per request, to the law enforcement agencies and any violation of the said condition may lead to imposition of a heavy penalty on the service provider. Moreover, the service provider needed to act on urgent basis and in public interest. It was held and observed that where the communication is full of gross mistakes, the service provider while immediately acting upon the same, should simultaneously verify the authenticity of the same from the author of the document. It has to act as a responsible agency, especially when the service provider is taking serious step of intercepting a telephone call of a person and thereby, invading the privacy right of a person concerned, which is a fundamental right protected under the Constitution of India. 23. Bearing in mind the judgment discussed hereinbefore, this Court cannot be oblivious of the fact that the criminal complaint lodged by the respondent No. 3 against the present petitioner, has culminated into Criminal Case, which was pending till the filing of the present petition. The petitioner herein is one of the accused, who is alleged of conspiracy, as also negligence during the treatment of the mother of the respondent No. 3, and is charged for the offences punishable under sections 323, 352, 468, 420, 341 and 34 of the Indian Penal Code. Later, the addition of provisions of the Indian Penal Code has been made. 24. Later, the addition of provisions of the Indian Penal Code has been made. 24. Further investigation had also been permitted by the learned Additional Chief Metropolitan Magistrate, Mumbai, on June 08, 2015. The report of further investigation is not on record and, therefore, what are the provisions added by the Investigating Agency, under the Indian Penal Code would not cull out from the record. 25. Under what circumstances the police had called for CDRs concerning the mobile phone of the present petitioner and other co-accused and whether any preliminary inquiry needed to be made by Gujarat Police prior to the complaint and whether at a later stage the Investigating Agency also had requested, after once the complaint was lodged, the Gujarat Police to share the CDRs with the agency or not and whether parting of the data by the Gujarat Police was in discharge of its legal duty and obligation to the request made by the law enforcing agency or not, are the questions which can be better appreciated by the Court which is seized of the criminal trial. During the course of the trial, these questions can be raised by the petitioner and many of these details also would be available in the examination of the official witnesses. The case diary of the concerned Investigating Officer also would reveal many of these details, so would the record of the concerned Court. Prima facie, it appears that sharing data with the respondent No. 3 by Gujarat Police to the private party, was in her capacity as the wife of Senior Police Officer or because of her entitlement as a family member of the deceased or as a citizen after the CDRs were already obtained by the Gujarat Police and whether the Gujarat Police collected the same at the behest of a private person, are the questions which can find their answers only on adducing evidence, oral and documentary, both. 25.1 Whether, in fact, the Gujarat Police was authorised to collect the details and to share it with the respondent No. 3, who otherwise is a private person and whether the respondent No. 4 failed in discharging its public duty in ascertaining the author of communication and its genuineness while parting with the data or not, are disputed questions of facts, which can be better answered on adjudication by the trial Court concerned. Many of the questions raised by the petitioner in this petition are valid and relevant and yet, deserve adjudication only on allowing the parties to adduce evidence, documentary and oral, both. In the wake of pendency of the trial, as also in absence of any of the aforesaid details available and they being disputed questions of facts, in the opinion of this Court, the present writ petition, at this stage, does not deserve to be entertained. 25.2 The petitioner if can eventually establish either unauthorised manner of collection or illegal way of sharing of these personal details, he surely would have legal recourse open to ask for remedial measures, including compensation. 25.3 Merely because this Court has jurisdiction would not mean the same deserves to be exercised. Directing any investigation while the proceedings before the competent Court are pending, is wholly unwarranted and undesirable, according to this Court. 26. For the foregoing reasons, the present petition fails and is, accordingly, dismissed. The petitioner shall be at liberty to raise all these contentions before the concerned Court where the trial is pending. The petitioner may choose to approach the Court for remedy under the writ jurisdiction at an appropriate time after once the trial Court adjudicates this issue. He would be also entitled to take appropriate recourse of law against all the respondents, including the respondent Nos. 3 and 4, if eventually sharing of data is held to be without following due procedure of law. This disposal shall not come in his way. Petition Dismissed