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2025 DIGILAW 175 (ALL)

Gaurav Tyagi v. State of U. P.

2025-02-06

SAURABH SRIVASTAVA

body2025
JUDGMENT : Saurabh Srivastava, J. 1. Heard Sri Prashant Kumar Singh, learned counsel for petitioner and learned AGA. 2. By means of present petition, petitioner has challenged order dated 19.03.2024 passed by learned Additional Civil Judge (J.D.)/Judicial Magistrate, Court No.1, Ghaziabad in Case No.1739 of 2023, arising out of Case Crime No.86 of 2018, under Section 379, 411 IPC, P.S. Link Road, District Ghaziabad as well as order dated 13.05.2024 passed by learned Sessions Judge, Ghaziabad in Criminal Revision No.258 of 2024. 3. Learned counsel for petitioner submitted that at the time of seeking bail, petitioner had preferred an application at the very initial stage i.e. on dated 14.03.2018 through which specific prayer was made for collection of CDR and location of concerned police personnels since the allegation which has been put forward under which the petitioner was implicated, was only on the basis of phone calls which has been made from certain police personnels to the petitioner, whereupon he responded in shape of appearing himself at the place of alleged occurrence, otherwise it is the defence taken up by petitioner that he was not involved in the matter which culminated into registration of Case Crime No.86 of 2018 in any manner whatsoever. It has been further submitted by learned counsel for petitioner that the application dated 14.03.2018 was kept pending by learned court concerned which compelled the petitioner for filing Application U/S 482 No.8666 of 2020 and the same was decided on dated 15.02.2022 with a direction to the learned court concerned to decide the application dated 19.11.2019 which was of the same essence as preferred on dated 14.03.2018, in accordance with law, as expeditiously as possible without granting any unnecessary or long adjournments either of the parties, preferably within a period of three months from the date of production of a certified copy of this order before it. 4. In compliance with the order dated 15.02.2022 passed on Application U/S 482 No.8666 of 2020, learned ACJM, Court No.8, Ghaziabad decide the application dated 19.11.2019 preferred at the behest of petitioner vide order dated 19.03.2024 in shape of dismissing the same precisely on the grounds mentioned hereinbelow:- "(i) the application was not supported with an affidavit. (ii) petitioner has not appended any document or narrated any fact which may be supported with any affidavit. (ii) petitioner has not appended any document or narrated any fact which may be supported with any affidavit. (iii) and the defence whatsoever has been sought at this stage, can only be given credence at the stage of Section 313 Cr.P.C." 5. Being aggrieved with the order dated 19.03.2024, petitioner preferred criminal revision which was registered as Criminal Misc. No.258 of 2024 and the same was dismissed vide order dated 13.05.2024 by learned revisional court on the ground that as per norms laid down by Department of Telecom, call details record, IP details record are to be preserved by the telecom companies for two years, similarly, the location date is also preserved by the telecom companies for either few months or for several years, which depends from company to company and similarly, the CCTV footage by any organization is kept for a short duration due to paucity of storage capacity as well as, it will be imperative on the part of the party to submit it before the police at the earliest for verification of his claim. Another ground for dismissing the said revision recorded by learned revisional court is that the digital/electronic evidences referred by the revisionist, were not in safe custody at the very initial stage of the crime, hence, even if some evidences are produced before the trial court at this state, then their authenticity could not be relied because the chances of tampering with the evidence cannot be denied. 6. Learned counsel for petitioner submitted that there is a verdict rendered by Division Bench of Bombay High Court in the case of Areeb Ejaz Majeed Vs. Natianal Investigation Agency [Criminal Appeal No. 173 of 2019 decided on 27.03.2019], wherein the application for leading evidences preferred at the initial stage, was dismissed and thereafter revision preferred by the accused was also negated but through the said judgment, opportunity for leading the evidences has been extended in favour of accused after the gap of near about four years that was specifically in shape of CDR and location of the persons carrying mobile insturment and as such, a the same direction may be passed in this petition also. 7. 7. Per contra, learned AGA supported the order dated 13.05.2024 passed by learned revisional court by way of submitting that there is a maximum limit for preserving the digital data by service provide of mobile company that is only of two years in respect of call details and IP address and in sofar as location is concerned, its retention varies from company to company. 8. After having the rival submissions extended by learned counsel for parties, a single opportunity may be extended in favour of petitioner for leading the evidences and if the same can be restored or produced by the prosecution, the same has to be exercised by learned trial court concerned within stipulated period of time. 9. The abovementioned extension is granted in favour of petitioner only on the basis of justice done to the parties and no person may be prejudiced by way of not extending the opportunities for proving his or her innocence. 10. In view thereof, learned trial court concerned is hereby directed to extend one more opportunity for leading evidences specifically in shape of CDR and location as mentioned in the application dated 19.11.2019 preferred at the behest of petitioner within a specified period of one month from the date of production of a certified copy of this order before it, if in any case, either any parties, failed to produce evidence, learned trial court concerned will be at liberty to proceed in accordance with law leading finalization of trial. 11. If in case, the evidence as desired by petitioner/accused be laid by the prosecution, the same has to be proved by way of giving proper opportunity prescribed at law. Prosecution as well as defence is hereby requested to render entire support for achieving the direction as made above. 12. With the said directions, the instant petition is hereby disposed of.