Accused's Right To Fair Trial To Seek Call Detail Record U/S 91 CrPC In Trap Case Prevails Over Police's Right To Privacy: Rajasthan HC

In case concerning trap proceedings, the Jaipur bench of the Rajasthan High Court has reiterated that the right of an accused to a free and fair probe/trial under Article 21 in seeking call/tower location details under Section 91 CrPC would prevail over the right to privacy of the police officials. 

The court added that this right of privacy can be breached to some extent for production of call details, to discover the truth and to ensure fairness towards all stakeholders.

Anoop Kumar Dhand said this in a plea challenging an order by the Special Judge, Prevention of Corruption Act, which had rejected the petitioner's application under Section 91, CrPC, seeking preservation of the location of the mobile numbers of certain witnesses including the mobile number of the complainant and Investigation Officer along-with other members of the trap party. 

Section 91, CrPC allows a court or police officers to order production of documents or other items for ensuring availability of relevant evidence during legal proceedings.

It held that: “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 true facts during investigation, enquiry, trial or other proceedings”.

"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," it added. 

It was the case of the petitioner that he was falsely booked in an anti-corruption case by fabricating documents and evidence by the investigating agency at the behest of the complainant when in fact there were no trap proceedings conducted. In the allegations, presence of two witnesses was mentioned which was claimed to be incorrect by the petitioner.

The petitioner submitted that even as per the CCTV footage the witnesses were not present and to verify this fact, the petitioner had submitted the application under Section 91 praying for preservation of the tower location of mobile numbers of these two witnesses. This application was rejected by the Special Judge against which the present petition was filed by the petitioner.

After hearing the contentions, the Court observed that the tower locations of the two numbers was relevant for the petitioner to prove correct facts during the trial.

It was opined that denying an adequate opportunity to the accused by non-production of the electronic record would be miscarriage of justice. And thus, even though passing order under Section 91, CrPC infringes right to privacy, the same is superseded by the accused's right to fair trial under Article 21. 

At the same time, it was observed that before any such order could be passed for summoning call details/tower locations, the accused was required to prove the necessity and desirability of such evidence that would be relevant in establishing the guilt or innocence of the accused.

The Court also made a reference to the Supreme Court case of Suresh Kumar v Union of India in which the Apex Court dealt with similar circumstances.

The Supreme Court observed that since bringing on record such call details was likely to prejudice prosecution's case by exposing their activities in relation to similar other cases and individuals, only such details were ordered to be summoned which were relevant for determining the location of the numbers while blacking out other information concerning calls received on or made from those numbers.

In background of this analysis, keeping in mind the precedent, the petition was allowed, and the Court directed the Trial Court to summon the tower locations of the phone numbers of the two witnesses with incoming and outgoing calls on these numbers to be blacked out.

Title: Narendra Kumar Soni v State of Rajasthan

Citation: 2025 LiveLaw (Raj) 27

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