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2024 DIGILAW 88 (PNJ)

Satnam @ Sattu v. State of Haryana

2024-01-10

HARKESH MANUJA

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JUDGMENT : HARKESH MANUJA, J. 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. 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, (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. 7. 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. 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 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. Reference in this regard can also be made to judgment passed by the Hon’ble Supreme Court in case titled as Suresh 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 sources of information available to the Bureau. 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 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. Judgment in Suresh Kumar’s case (Supra) was also followed by a coordinate bench of this Court in Amit Vasudev vs. State of Punjab, 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 judgments 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 vs. State of Punjab, 2015 (4) RCR (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 Rame Rahim vs. Central Bureau of Investigation, 2019 (1) RCR (Criminal) 561, charges have already been 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. 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.