Accused's Right To Fair Trial Prevails Over Cop's Right To Privacy: P&H High Court Orders Preservation Of Arresting Officer's Call Details U/S 91 CrPC

The Punjab & Haryana High Court has directed the trial Court to preserve the call details of the policemen who arrested the accused, observing that the right to a fair trial of the accused will prevail over the right to privacy of policemen.

Justice Harpreet Singh Brar said, "No doubt that 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."

The Court further said that the denial of an adequate opportunity to the accused by non-production of the electronic record, which is admissible under Sections 65-A and 65-B of the Indian Evidence Act in a criminal trial, would amount to a miscarriage of justice.

Section 91 CrPC 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 arriving at a just and fair outcome, it added.

These observations came in response to the plea filed by Paramjit Kaur challenging the order passed by the Additional Sessions Judge, Hisar whereby the application filed by the petitioner under Section 91 CrPC for preserving the call details records with location chart was dismissed.

It was contended by the petitioner that her husband is falsely implicated in drug case under the NDPS Act because he had complained against police officials.

Therefore it is necessary to preserve the call location of the policemen to prove that the husband of the petitioner was not arrested at the time and place alleged by the investigating agency, she added.

On the other hand, the counsel for state contended that the production of the call details and the tower location of the police officials would expose the secret informers, who help the investigating agency in intercepting the anti-social elements and these details cannot be made available for the public in a routine matter.

Considering the submissions, the Court opined, "preserving and requisitioning of the call details and tower location details would be necessary, otherwise the same would be lost forever. The right of accused to invoke the provisions of Section 91 Cr.P.C. for obtaining documents in support of his defence has been recognized by the Constitutional Courts."

The legislative intent behind enactment of Section 91 Cr.P.C. is to ensure that no cogent material or evidence involved in the issue remains undiscovered in unearthing the facts during investigation, enquiry, trial or other proceedings, added the Court.

Furthermore, the Court clarified that although the preservation of call records will amount to a violation of the right to privacy of policemen but it will not prevail over the right to fair trial and investigation of the accused.

However, the right of privacy of the police officials cannot be breached at the ipse dixit of the accused. Before any such order for the production of call details/tower location is passed, the accused is required to prove the necessity and desirability of such evidence, which would be relevant to establish the guilt or innocence of the accused, the bench added.

Highlighting that principles of natural justice are an integral part of a fair trial under Article 21 of the Constitution, Justice Brar said, "Any denial of the best available evidence or effective and substantial hearing to accused in proving defence would amount to a denial of a free and fair trial."

In light of the above, the Court set aside the order of the trial Court and directed it "to pass necessary directions under Section 91 Cr.P.C. for preserving and production of the call details/tower location details of the phone numbers...attached with the application filed under Section 91 Cr.P.C."

It is pertinent to note that, a single bench of the Punjab & Haryana High Court had dismissed a plea to preserve the call records of a police officer who arrested the petitioner in the NDPS Act observing that for the possibility of creating evidence in favour of the accused, it cannot go to the extent of breaching privacy of a police officer. 

Appearance: Amit Choudhary, Advocate for the petitioner.

Geeta Sharma, DAG, Haryana.

Citation: 2023 LiveLaw (PH) 262

Title: Paramjit Kaur v. State of Haryana

Click here to read/download the order