The Punjab and Haryana High Court observed that accused's right to free and fair trial prevails over the right to privacy of police officials.

The Court was considering a petition filed by an accused challenging the dismissal of his application under Section 91 of the Criminal Procedure Code (Cr.P.C.) for preserving the call details records with location chart of certain mobile numbers belonging to police officials.

A Bench of Justice Harpreet Singh Brar held, “No doubt while passing the appropriate direction for preserving and production of call details/tower location details under Section 91 Cr.P.C. would violate the right to privacy of the police officials but the right of the accused under Article 21 of the Constitution of India in ensuring free and fair investigation/trial would prevail over the right to privacy of the police officials. Some extent of privacy can be breached in production of the said call details, as this would facilitate the learned trial Court in discovering the truth and rendering justice, which is fair to all stake holders.

Advocate Amit Choudhary appeared for the Petitioner and Advocate Geeta Sharma appeared for the Respondent.

The petitioner's argument was that the police officials, against whom her husband had filed a complaint, arrested him and planted drugs on him. The petitioner sought preservation of call details and tower location details of the police officials at the relevant time to establish that her husband was not arrested at the alleged time and place.

The court had dismissed the petitioner's application, stating that the purpose and necessity of collecting such details were not adequately mentioned. The petitioner's counsel argued that the call details and tower locations were vital evidence for proving the husband's innocence.

In response, the State Counsel argued that revealing such details could jeopardize secret informers and put witnesses in danger.

The Court, after hearing both sides, referred to the necessity and desirability of preserving call detail records and tower locations as recognized by the Supreme Court in Suresh Kumar Vs. Union of India 2015 (3) RCR (Criminal) 340. It emphasized the importance of Section 91 Cr.P.C. in facilitating a fair and just resolution by ensuring relevant evidence is made available to the court. The Court added, “The denial of an adequate opportunity to the accused by non-production of the electronic record, which is admissible under Section 65-A and 65-B of the Indian Evidence Act in criminal trial, would amount to miscarriage of justice. Section 91 Cr.P.C. helps in facilitating a fair and just resolution to the case by ensuring that relevant evidence is made available to the Court for making informed decisions and arrive at a just and fair outcome

The Court said, “As principles of natural justice are integral part of fair trial under Article 21 of the Constitution of India, any denial of the best available evidence or effective and substantial hearing to accused in proving defence would amount to denial of free and fair trial.”

The Court thus set aside the impugned order and directed the trial court to pass necessary directions under Section 91 Cr.P.C. for preserving and producing the call details and tower location details of the mentioned phone numbers.

Cause Title: Paramjit Kaur v. State of Haryana, [2023:PHHC:156074]

Click here to read/download Order