Preservation Of Exculpatory Evidence Is Of The Utmost Sanctity For Ensuring Fair Trial: Delhi High Court

The High Court was considering a petition filed under section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), challenging the order dismissing an application filed by the petitioner under section 91 of the Code of Criminal Procedure 1973 (Cr.P.C). Vide this application, the petitioner had sought preservation of certain evidence and information as detailed in paras 5(e), (f) and (g) of that application. The petitioner also sought restoration of the order of the Magistrate, whereby the Investigating Officer (I.O.) was directed to preserve the electronic data/records/information, including Call Detail Records (CDRs).

The Single Bench of Justice Anup Jairam Bhambhani observed, “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.”

Senior Advocate N. Hariharan represented the Petitioner, while APP Utkarsh represented the Respondent.

Factual Background

The petitioner (accused) was facing allegations of stalking and sexual harassment levelled by the respondent complainant against him. A chargesheet was filed in the matter under sections 354,354-D,506, 509, 201, 204 IPC and section 67 of the Information Technology Act, 2000. It was the complainant’s case that since the year 2020, the accused had been stalking and making inappropriate advances towards her, despite the complainant having given repeated warnings and a clear indication of her disinterest in the accused from the very outset. On the contrary, it was the case of the respondent accused that over 3 years, the engagement between the parties had gradually grown into an intimate and romantic relationship, which turned sour only when the complainant’s husband came to know about their relationship.

Upon a preliminary hearing, the Court issued notice on the petition and directed the I.O. to forthwith arrange for the collection and preservation of records and to continue to hold the data already preserved pursuant to orders passed by the Magistrate. By way of the said order, it was also clarified, that none of the data and information so collected and preserved should be disclosed to either of the parties at that stage.

Reasoning

The Bench explained that the 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. Furthermore, the mere allegation that the accused had erased data from his mobile phone while in police custody, in and of itself, was no ground to have denied preservation of the data and information requested by way of the application, especially in view of the complaint stated to have been filed by the accused, alleging that the complainant’s husband had forcibly destroyed the data from his phone.

The Bench thus said, “In the opinion of this court therefore, the data and information sought fulfils the test of necessity under section 91 of the Cr.P.C. It also appears obvious, and beyond doubt, that the data and information in question are perishable, in the sense that these are bound to be weeded-out or overwritten over a period of time. It can therefore hardly be contended with any seriousness, that it is not desirable to preserve that data and information right-away. 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.”

The Bench took note of the stand of the accused that the complainant and the accused were in a relationship before that period, and to support that submission, the accused had sought preservation of the CDRs and other data and information for the entire period of 3 years. Reference was also made to the concept of res-gestae contained in sections 6, 7 and 8 of the Indian Evidence Act, 1872 which makes even the past conduct of parties relevant.

The Bench was of the view that whether or not the CDRs and other data and information for the period prior to January 1, 2023 were relevant, could not be prejudged at the present stage. On the apprehension relating to the preservation of the CDRs, data and information sought by the accused and the same amounting to breach of the complainant’s privacy, the Bench ordered, “As a measured approach, this court would direct that insofar as the CDRs are concerned, in order to obviate unnecessary exposure of the complainant‟s CDRs, only the CDRs of the accused for the period from 01.04.2020 to 15.05.2023 shall be preserved, which would be adequate to show the communications, if any, between the parties for that period.”

Thus, partly allowing the Petition, the Bench directed that the CDRs – only of the accused – and all other data and information as set-out in para 5(e) to 5(g) of the application filed by the accused under section 91 of the Cr.P.C., be preserved along with requisite certificates as required under section 65-B of the Evidence Act. “As a further caveat, it may be observed that the complainant’s data and information received from the entities referred to above, pertaining only to her transactions with the accused and his family, is required to be preserved”, it concluded.

Cause Title: Sohail Malik v. State Of Delhi (Neutral Citation: 2025:DHC:6718)

Appearance

Petitioner: Senior Advocates Hariharan, Advocates Subhash Gulati, Punya,Aman Akhtar, Vasundhara N., Vinayak Gautam, Vasundhra Raj Tyagi, Sima Gulati, Sharian Mukherji, Rekha Angara, Sana Singh, Pankaj Yadav, Diskha Narula

Respondent: APPs Utkarsh, Digam Singh Dagar, Advocates Kumud Nijhawan, Kunal Bhardwaj, Paras, Mohit Rathee, Garima Saini, Insp. Sunil Kumar Advocates Abhay Kumar, A.K. Sharma, Shagum Ruhil, Karan Chopra

Click here to read/download Order