Kamlesh & Ors. vs State Of Rajasthan

The petitioners have preferred this misc. petition under Section 482 Cr. P.C., seeking quashment of order dated 20.1.2018 passed by learned Special Judge, NDPS Act Cases, Pratapgarh in Special Sessions Case No.39/2017 (State Vs. Vishnu Lal & Ors.).

The limited bone of contention raised in this misc. petition is that the petitioners, who are accused of carrying NDPS contraband, are demanding certain call-details, which has been refused by the court below. Counsel for the petitioners has relied upon judgment of this Court in Jasveer Vs. State of Rajasthan reported in 2015(1) Cri. L.R. 526, relevant portion of the judgment reads as follows :-

"5. I have considered the arguments advanced at the Bar and have perused the impugned order.

The call details, which were sought to be summoned in this case, were required for defence of the accused. The specific theory of the accused before the learned Trial Court is that the Seizure Officer and the motbir witnesses Parbat Singh were not present at the place of seizure when the recovery was effected and seizure documents prepared. Therefore, the call and location details of the mobile phones held by these two witnesses would be vital and material for the defence of the accused. The defence can endeavour to prove its stance by resorting to any legally permissible. . . . . . it cannot be fettered or restricted to use the documents filed by the police under Section 173 Cr.P.C. only. The mobile call details which were sought to be summoned, are not in the control or approach of the accused. He cannot be expected to procure them on his own. Thus, the accused justifiedly approached the Trial Court under Section 91 Cr.P.C. to procure the call details from the concerned mobile service provider. The Trial Court has wide powers under Section 91 Cr.P.C. to summon a document or a thing from the possession of any person, if it is satisfied that the summoning thereof is justified. As has already been discussed above, the accused has a right to get summoned the call details to establish his innocence. The right to be defended is a fundamental right of every accused. The prayer made in this regard was wrongly rejected to the extent of the call and location details of the witnesses Navneet Vyas and Parbat Singh. So far as the call details for the mobile phones of other witnesses are concerned, they are not material and the Trial Court rightly rejected the prayer for summoning the same.

Resultantly, the present Misc. Petition is allowed in part. The Trial Court is directed to supply a copy of the videography and the photographs, which the prosecution claims to have filed along with charge-sheet, to the accused if these documents are not on record, they shall be summoned and copies thereof supplied to the accused. Furthermore, the call and location details of the mobile phones of Mr. Navneet Vyas, S.H.O. Police Station Molasar and Mr. Parbat Singh, Constable for the relevant period shall be summoned from the concerned service provider, if the same are still available in their database and copies thereof shall be provided to the accused. The accused shall be at liberty to make use of the summoned documents as per law at the appropriate stage." "

Counsel for the petitioner made a limited submission that call-details of 17 persons be given to the petitioners for the purpose of their defence.

Learned Public Prosecutor opposed the submission on the ground that petitioners are trying to improve their case by moving application to summon call-details at such a belated stage.

After examining record of case and the precedent law cited at Bar, this Court opines that scientific evidence of call-detail should be liberally used by police Authorities as it will definitely help in adjudication of dispute since call-detail cannot be directly collected by the parties from Service Provider and the evidence has to be collected through police Authorities only. Thus, wherever it is justified and there is some relevance of call details with facts of the case, then opportunity to provide call-detail should be given and after summoning the same, such details should be taken on record. Accused person has strong right to get summoned the call details to establish his innocence or to take ahead the investigation. The right to be defended is a fundamental right of every accused, and if the call details are related to the incident, then a credible picture can be depicted through them.

As all the other fundamental rights do have reasonable restrictions to maintain law and order and to secure justice, this right to privacy also has reasonable restrictions and has to be considered accordingly. The providing of call details should be dealt with taking a liberal view. Every case is different with different kind of situations and facts and everything depends upon the situation. If a situation comes where it seems that right to privacy is going to be violated, and the call details are not likely to answer any question in the case in hand, then the same can be restricted. On the other hand if a situation comes when there is necessity to provide the scientific evidence to a person to defend himself from the allegations, then right to privacy should not be a bar in the process of justice, as the court's main aim is to secure justice and not to impose bars and restrictions in the process of justice.

Learned court below has wrongly rejected the application under Section 91 Cr. P.C. In the interest of justice, the scientific evidence ought to have been taken on record. However, a cautious track is to be tread by police Authorities as well as learned courts below as it should not hamper on going investigation/trial and further the call-details belonging to 'motbir' or 'mukhbir' should not be given as that would jeopardize the frame of investigation. Right to privacy, safety and security of person whose call-detail is summoned from Service Provider shall also remain the highest concern of court and the police Authorities and the connection of the call details with the incident in question shall be sufficient to breach such right to privacy. Needless to say that in the present case call-details of persons named at Sr. No.1 to 17 is not likely to prejudice anyone, therefore, such call-details ought to have been provided (except for the call details of Kamlesh and Vishnu, which has already been provided). Further, the official cell-phones of police personnels do not breach any privacy as they are meant to be used for public law and order transactions, thus, the call details from official phones of police personnel in this case for the relevant period shall also be given as sought if they are pertaining to their duty hours and official mobile phone. It is made clear that such guidelines as laid down by this Court in the preceding para shall be followed by police Authorities as well as learned courts below for giving call details. Further it is made clear that the police Authorities as well as learned courts below shall also keep in mind relevance to the incident and the period of call-detail sought by the person concern and shall reject the demand of call-details if slightest of it is not relevant to the investigation.