Rajasthan HC Expands Scope of Section 95 BNSS To Include Telecom, Service Providers For Compelling Production Of Material Relevant To Trial

The Rajasthan High Court recently allowed a murder accused's plea under Section 94 BNSS by treating it as one filed under Section 95 BNSS, thereby expanding the provision's (Section 95) scope in the peculiar facts of the case and directed the trial court to obtain the call and location details of the witnesses in the case. For context section 94, BNSS provides that any court or officer in charge of a police station can demand the production of electronic communication including communication devices, which are likely to contain digital evidence which may be necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under BNSS. Section 95, BNSS lays down that if any document or thing that is in the custody of a postal authority, is wanted for trial, in the opinion of the court, the court may require such postal authority to deliver the document or thing to such person. Dismissal of Section 94 plea technically not illegal, but can be allowed to secure ends of justiceA single judge bench of Justice Arun Monga in its order observed that Section 94 of BNSS can be invoked only either at the instance of the court or the officer in-charge of the police station, who in a given situation, may consider any document to be produced for the benefit of the Court. It thereafter said that technically speaking, the trial court had not committed any legal irregularity in dismissing the accused's plea under Section 94, as it was not open for him to invoke the provision. The court however said that in the "peculiar facts and circumstances of the case", and for securing the ends of justice, the accused's plea "otherwise deserves being allowed on merits". "The petitioner herein is under-trial being accused serious offence under Section 302 of IPC. If he is held guilty, the consequence thereof may result into death penalty and/or conviction for life imprisonment. Any negligence or dereliction in adducing of the evidence, needless to say, will result in miscarriage of justice and severely jeopardize the defence of the accused. On a Court query, it transpires that currently prosecution testimony is being recorded by the trial court. Given the work load, it may so happen that at the stage of defence evidence, owing to the delay, the call details and location details, which the accused have been advised to adduce in their evidence, may be deleted from the data bank of the service provider of the mobile network of which the accused as well as other witnesses are subscribers," the court observed. The high court was hearing a plea filed by an accused accused of murder who had challenged an order passed by the sessions court which had rejecting his petition under Section 94, BNSS seeking summoning of the call and location details of four witnesses to verify their statements recorded at the trial stage.The accused argued that the plea was rejected by the sessions court only on the ground that Section 94, BNSS, could not be invoked for validating witnesses' statements through call details. He said that the trial court had failed to consider the fact that if the call details were not produced as evidence, it would jeopardize his case causing him serious prejudice.Court can order securing of records u/S 95 which may get deleted due to 'passage of time'On the application of Section 95 BNSS Justice Monga observed that the provision allows the court to direct postal authorities to produce documents or records that are relevant to a pending trial. It said that the provision "explicitly grants courts the authority" to order the preservation and production of such records, "irrespective" of whether the documents are in the "custody of the accused or not". The court further said that the section can direct service providers to produce and retain the required records even before the defense stage, "ensuring" the availability of these documents when required. "This provision thus supports the petitioners' plea to secure the records to avoid their deletion later on by sheer passage of time," the court underscored. Court can direct telecom authority–included in postal authority, to produce electronic data not with accusedJustice Monga was of the view that in "modern day context", a postal authority is to be read in a manner to "mean and include" even the telecom authority which is a similar service provider in respect of electronic data which it "preserves on behalf of and, delivers, to its consumers". "Accordingly, any document or electronic data or a thing, which is not in custody of the accused but with the third party, i.e. postal authority or the telegraph/telecom authority/service provider, but, at the same time, it is relevant for the purpose of the pending trial can be directed by the trial court to be produced in the court as a piece of evidence," the bench held.The high court said that if by the stage of defence evidence is reached, the call and location details, which the accused has ...

Rajasthan HC Expands Scope of Section 95 BNSS To Include Telecom, Service Providers For Compelling Production Of Material Relevant To Trial

Nupur Agrawal

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