Read Order: Gagandeep Singh @ Gagan v. State of Punjab

Monika Rahar

Chandigarh, June 9, 2022: The Punjab and Haryana High Court has recently held that at the stage of framing of charges, the accused certainly does not have  a right to have access to call detail records and tower location records which are not part of the chargesheet and are in the nature of documents to help him put forth his defence. 

“The question as regards framing of charges has to be considered mainly on the basis of the documents collected by the police during the course of investigation. Since, the call detail record is not part of the challan, therefore, the petitioner, at this stage has no right to call for these documents”, said Justice  Gurvinder Singh Gill while adding that there is no rationale in depriving the accused of access to call detail records and tower location records at the stage of cross-examining prosecution witnesses so as to build up his defence. 

The petitioner assailed the order of the Trial Court whereby an application moved by the petitioner/accused seeking issuance of directions to Nodal Officers of Jio/Reliance and Airtel, to provide call detail record/mobile tower location record, which had already been directed to be preserved, was dismissed.

The petitioner faced trial before the Court of Special Judge (NDPS), Ludhiana, in respect of an FIR registered against him under Sections 22, 61, and 85 of the NDPS Act. The petitioner earlier moved an application before the trial court seeking issuance of a direction to the Nodal Officers of the mobile companies concerned, to provide the phone numbers of the police officials and the call detail record in respect of their phone numbers. The said application was allowed vide order of the Judge, Special Court, Ludhiana. 

When the matter was fixed at the stage of framing of charges, an application was moved by the petitioner seeking issuance of a direction to Nodal Officers of the mobile companies concerned to provide the phone call detail record along with the tower location record in respect of the phone numbers regarding which directions was issued by the Judge, Special Court, Ludhiana so as to preserve the call detail record and tower location record.

The said application was declined by the trial Court while observing therein that the said record may be proved during the course of defence evidence by summoning the witnesses.

It was the case of the petitioner’s counsel that once the call detail record was ordered to be preserved, the petitioner/accused ought to have been furnished with a copy of the same as he has to build up his defence on the basis of said call detail record and that he would be seriously prejudiced in case he is not permitted to build-up his defence and in fact, he may also be permitted to make submissions in this regard at the stage of framing of charges. 

On the other hand, the State counsel submitted that such documents cannot be furnished to the petitioner at the stage of consideration on framing of charges since the same did not form part of the charge sheet and were not “relied upon” documents. It was further submitted that it was only at the stage of defence evidence that the petitioner may be permitted to have access to the said documents so as to use the same for his defence.

At the very outset, the Court opined that the petitioner, at the stage of framing of charges didnot a right to have access to these documents which were not part of challan and were in the nature of documents to help him put forth his defence. 

Elaborating upon this submission, the Court added that the question as regards framing of charges has to be considered mainly on the basis of the documents collected by the police during the course of the investigation and that since the call detail record is not part of the challan, therefore, the petitioner, at the stage of charge-framing had no right to call for those documents. 

Further, regarding the argument of the state counsel to the effect that call detail records and tower location records can only be supplied to the petitioner at the stage of recording defence evidence, the Court added that it is not that the defence of the accused has to be built up only at the stage of recording of statement under Section 313 Cr.P.C. or at the stage of recording defence evidence, but the same can well be built up right from the stage of cross-examination of the prosecution witnesses when the accused would be confronting the prosecution witnesses with all such material which could demolish their deposition. 

Thus, Justice Gill held, “If the accused can be permitted to have access to these documents at the stage of recording defence evidence, then this Court does not see any rationale in depriving accused access to such documents at the stage of cross-examining prosecution witnesses so as to build up his defence.”

Thus, the impugned order of Judge, Special Court, Ludhiana was set aside and the petitioner was held entitled to the aforesaid call detail record and tower location record once the charges were framed.

“In case the trial Court proceeds to frame charges against the accused, the trial Court shall issue necessary directions for calling for the call detail record and tower location record which had been ordered to be preserved vide order dated 6.5.2021 (Annexure P-3) and to furnish a copy of the same to the accused”, held the Court.

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