Complainant's Privacy Concern Can't Come In Accused's Way To Preserve Call Records Claimed To Be Exculpatory Evidence: Delhi High Court

The Delhi High Court on Tuesday ruled that the privacy concern of a complainant cannot come in the way of an accused seeking preservation of Call Detail Records which is claimed to be exculpatory evidence.

“Preservation of exculpatory evidence is of the utmost sanctity for purposes of ensuring a fair trial guaranteed under Article 21 of the Constitution of India; and a narrow construction or interpretation of section 91 Cr.P.C. must not stand in the way of preservation of such evidence, whilst of course leaving it to the trial court to subsequently decide whether such evidence is relevant and admissible,” Justice Anup Jairam Bhambhani said.

The Court noted that in India's process of criminal justice dispensation, there is no formal system for an accused to collect exculpatory evidence, and an accused rarely has any effective means of collecting such evidence.

It added that since the means for an accused to collect exculpatory evidence are woefully missing, investigating officers, who invariably have an upper-hand at least at the stage of investigation, fall into the temptation of keeping back evidence that may be helpful to the defence.

The Court observed that it is not uncommon for an investigating agency to disclose only their side of the case and that the proclivity of the prosecuting agencies is to secure conviction at any cost, which shatters the concept of a fair trial.

Justice Bhambhani was dealing with a plea filed by an accused in a stalking and sexual harassment case seeking preservation of data and call data records of his phone as well as the complainant's phone, along with data of certain activities and transactions undertaken by the complainant on online platforms.

The accused further sought restoration of the order whereby the Investigating Officer was directed to preserve the electronic data or records, including the Call Detail Records as sought by him.

Granting relief to the accused, Justice Bhambhani noted that after having first issued a direction to the I.O. to preserve the data and information as requested by the accused, the Magistrate subsequently recalled the said direction persuaded by the allegation that the accused himself had erased some data from his mobile phone with the intention of destroying evidence and that the accused was intending to misuse the data and information against the complainant.

“Furthermore, even if there was any ambiguity in the prayer, it obviously would have been just and fair for the learned Magistrate to call for the CDRs of the accused‟s mobile phone number, which would have revealed information about who the accused had called and who had called the accused, thereby revealing the communications, if any, that the parties had had with each other over mobile phones,” the Court said.

It added that CDRs can reveal information such as the number of times that calls are exchanged between parties, the number of times one party calls the other and vice-versa, the time of day when phone-calls are made or received, and the duration of phone-calls exchanged between parties, etc., which can be interpreted in the course of trial to examine the nature of the engagement of parties with each other.

The Court said that CDRs could turn-out to be elements of evidence, which are either inculpatory or exculpatory, when examined in conjunction with other evidence that may come on record.

“It is also elementary, that if data and information such as CDRs and other electronic records, are not preserved at this stage, they would quite definitely be weeded-out by the service providers or be over-written in their information technology systems; and would therefore subsequently become completely irretrievable and unavailable,” the Court said.

It added that the data and information sought by the accused fulfiled the test of necessity under section 91 of the Cr.P.C and that the data and information in question were perishable and are bound to be weeded-out or overwritten over a period of time.

“It would be a travesty of justice to tell the accused, that we know that the data and information is bound to disappear for-good if it is not preserved at this stage, but since the proceedings are only at the stage of framing of charge, so at this stage, you have no right to ask that the data and information which will disappear subsequently, even be preserved,” it said.

Justice Bhambhani said that if the evidence, claimed to be exculpatory, is allowed to dissipate in such a manner, with the court being fully aware that such evidence would become irretrievable subsequently, it could prejudice a fair trial.

“As for the apprehension that mere preservation of the CDRs, data and information sought by the accused, would amount to breach of the complainant's privacy or would stigmatize her, this court is of the view that this submission requires a calibrated response. It may be observed that this court is not blind to the concerns of the complainant; however, in the opinion of this court, such concerns cannot stand in the way of at least preserving what the accused claims to be exculpatory evidence,” the Court said.

Disposing of the plea, Justice Bhambhani directed that the CDRs, only of the accused, be preserved along with requisite certificates as required under section 65B of the Evidence Act.

“The CDRs of the complainant that have been received be destroyed by the learned Magistrate. If, and to the extent, that some of the data and information sought, or an adequate response, has not yet been received from the concerned entities, the learned Magistrate is directed to take requisite steps to ensure that such data, information or response is received expeditiously, for being preserved,” it added.

The Court observed that the complainant‟s data and information received from the entities, pertaining only to her transactions with the accused and his family, be preserved.

Title: SOHAIL MALIK v. STATE NCT OF DELHI & ANR

Citation: 2025 LiveLaw (Del) 957

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