Delhi High Court
Sohail Malik vs State Nct Of Delhi & Anr on 12 August, 2025
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12th August, 2025
+ CRL.M.C. 6745/2024 and CRL. M.A. 25774/2024
SOHAIL MALIK .....Petitioner
Through: Mr. N. Hariharan, Senior Advocate
with Mr. Subhash Gulati, Ms. Punya,
Mr. Aman Akhtar, Ms. Vasundhara
N., Mr. Vinayak Gautam, Ms.
Vasundhra Raj Tyagi, Ms. Sima
Gulati, Mr. Sharian Mukherji, Ms.
Rekha Angara, Ms. Sana Singh, Mr
Pankaj Yadav and Ms. Diskha
Narula, Advocates.
versus
STATE NCT OF DELHI & ANR. .....Respondents
Through: Mr. Utkarsh and Mr. Digam Singh
Dagar, APPs for the State with Ms.
Kumud Nijhawan, Mr. Kunal
Bhardwaj, Mr. Paras, Mr. Mohit
Rathee and Ms. Garima Saini,
Advocates with Insp. Mr. Sunil
Kumar, P.S.: Cyber/MDD.
Mr. Abhay Kumar, Mr. A.K. Sharma,
Mr. ShagumRuhil and Mr. Karan
Chopra, Advocates for R-2.
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
By way of the present petition filed under section 528 of the
Bharatiya Nagarik Suraksha Sanhita 2023 („BNSS‟), the petitioner
Signature Not Verified
Signed By:ANJALI KAUSHIK
Signing Date:12.08.2025
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impugns orders dated 24.04.2024 and 28.05.2024 made by the learned
Metropolitan Magistrate, Patiala House Courts, New Delhi, whereby
the learned Magistrate has dismissed an application dated 01.04.2024
filed by the petitioner under section 91 of the Code of Criminal
Procedure 1973 („Cr.P.C.‟). Vide application dated 01.04.2024 the
petitioner had sought preservation of certain evidence and information
as detailed in paras 5(e), (f) and (g) of that application. Furthermore,
the petitioner also seeks restoration of order dated 05.04.2024 passed
by the learned Magistrate, whereby the Investigating Officer („I.O.‟)
was directed to preserve the electronic data/records/information,
including Call Detail Records („CDRs‟), as referred-to in that
application.
BRIEF BACKGROUND
2. Briefly, the petitioner (hereinafter “accused”) is facing allegations of
stalking and sexual harassment levelled by respondent No.2
(hereinafter “complainant”) against him vide police complaint dated
16.05.2023, which complaint has culminated in the registration of FIR
No. 0053/2023 dated 16.05.2023 under sections 354/354-D/506/509
of the Indian Penal Code, 1860 („IPC‟) at P.S.: Parliament Street,
New Delhi. Subsequently, chargesheet dated 09.03.2024 has been
filed in the matter under sections 354/354-D/506/509/201/204 IPC
and section 67 of the Information Technology Act, 2000.
3. It is the complainant‟s case that since the year 2020, the accused had
been stalking and making inappropriate advances towards her, despite
the complainant having given repeated warnings and a clear
indication of her disinterest in the accused from the very outset. On
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the other hand, it is the case of the accused that over a period of 03
years between 2020 and 2023, the engagement between the parties
had gradually grown into an intimate and romantic relationship,
which turned sour only when the complainant‟s husband came to
know about their relationship.
4. Upon a preliminary hearing in the matter, vide order dated
29.08.2024, this court had issued notice on the petition and directed
the I.O. to forthwith arrange for collection and preservation of records
as referred-to in paras 5 (e), (f) and (g) of application dated
01.04.2024; and to continue to hold the data already preserved
pursuant to orders passed by the learned Magistrate. By way of the
said order it was also clarified, that none of the data and information
so collected and preserved shall be disclosed to either of the parties, at
that stage.
RECORD OF PROCEEDINGS BEFORE THE SUPREME COURT
5. The above-referred order dated 29.08.2024 was challenged by the
complainant before the Supreme Court by way of a Special Leave
Petition bearing SLP (Crl.) No. 12411/2024. Vide orders dated
01.10.2024 and 16.10.2024 passed in those proceedings the Supreme
Court disposed-of the SLP, leaving it open for this court to hear the
matter on merits; and to decide it without being constrained by the
observations of the Supreme Court in the said orders. Furthermore,
the Supreme Court also left open both the question of fresh collection
and preservation of evidence, for this court to decide.
6. For sake of completeness, it ought to be recorded that an IA No.
255035/2024 filed in SLP (Crl.) No. 12411/2024 seeking
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modification/clarification of order dated 16.10.2024 also stands
dismissed by the Supreme Court vide order dated 20.01.2025
7. It must also be recorded, that in any event, in the course of the present
proceedings, learned counsel for the accused has submitted that even
if no direction is issued for fresh collection, production or disclosure
of evidence, the preservation of evidence in itself would enable the
accused to requisition the relevant evidence, if and when so required,
in the course of the trial.
PROCEEDINGS BEFORE THE MAGISTRATE
8. The record shows that by an earlier order dated 05.04.2024, on a
prima-facie appreciation of the matter, the learned Magistrate had
issued the following direction :
“Keeping in view the limited prayer in the application as
well as the fact that charge sheet has already been filed and the
order is not to be construed as a direction for further investigation,
it is clarified that the I.O. has to ensure only preservation of
data/CDRs.”
(emphasis supplied)
9. Subsequently however, by way of impugned orders dated 24.04.2024
and 28.05.2024, the learned Magistrate has, in a sense, reversed the
directions issued vide order dated 05.04.2024. Since substantially all
the relevant observations of the learned Magistrate made in order
dated 24.04.2024 have been subsumed in the subsequent order dated
28.05.2024, it is not considered necessary to extract order dated
24.04.2024. The relevant observations of order dated 28.05.2024 read
as under :
“Earlier, a direction was given by this court on the basis of
an incomplete report filed by the IO and on the basis of selectiveSignature Not Verified
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facts placed before this court by the applicant. In fact, in the order
dated 24.04.24, this court has noted that the applicant had
concealed from the court regarding the charge of destruction of
evidence against him. Be that as it may, instead of getting swayed
away by the averments of the applicant, this court considered it
proper to hear the complainant/victim on this application. The
complainant has been heard specifically in view of the fact that the
information sought by the applicant has the potential of infringing
with the right of privacy of the complainant.
“The scope of an application U/s 91 Cr.P.C. has been
discussed in multiple cases by the constitutional courts. It is fairly
settled that ordinarily, the court has to proceed on the basis of the
material produced with the chargesheet. However, if there is any
material of a sterling quality, the same may be looked into even at
the stage of charge. The underline (sic : underlying) condition is
always the satisfaction of the court regarding the necessity and
desirability of the material being sought by the applicant. An
application U/s 91 Cr.P.C. on behalf of the accused is duly
maintainable, however, there is no right of the accused to compel
the production of the documents dehors the satisfaction of the court.
The two tests relevant for deciding section 91 Cr.P.C. application
are necessity and desirability of the material.
“On behalf of the complainant, it is submitted that the
application has been filed by the accused with the sole objective of
misrepresenting the facts of the case. It is submitted that the
accused intends to misuse the material for illustrating a
connection between the parties and to displace the case of the
complainant pertaining to a particular point of time. It is further
submitted that the departmental committee has given findings
against the accused on the count of sexual harassment and the
challenge raised by the accused before the Hon’ble High Court and
CAT has been dismissed. Furthermore, it is submitted that the
accused had erased the entire data from his mobile phone so as to
destroy the evidence. It is further submitted that the accused has
violated the terms of the release by sending a threatening messageSignature Not Verified
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to the complainant. Various other allegations regarding the past
conduct of the accused and various disciplinary proceedings
initiated against him are also mentioned in the reply.
*****
“It is admitted case of the complainant and the accused
that they were acquainted with each other since 2020 and it is
quite natural that calls were exchanged between the parties from
time to time. However, the mere fact that calls were exchanged
between the parties does not establish the nature of a relationship
between the parties. Even if, it is believed on face value that the
accused and the complainant were in a relationship, the same does
not make it desirable that the call detail records are preserved.
For, the relationship could have gone wrong from January 2023
onwards and the complainant may have withdrawn her
willingness and consent from the relationship from that point
onwards. The nature of the offence is such that the victim may be
aggrieved at any given point of time and existence of past
conversations, without knowing the content of those
conversations, may have no bearing on the merits of the
allegations. In fact, the same may have the effect of stigmatizing
the victim. The call detail records of the relevant period have been
obtained by the IO and form part of the chargesheet. The other
information sought by the accused is only meant to indicate that the
parties were known to each other and the said fact has not been
denied even by the complainant. The fact of prior acquaintance is
of no relevance for deciding an allegation of stalking from a
particular point of time. The information sought is not necessary
for a fair outcome of the case and the test of necessity is not met.
Even on the aspect of the desirability, it may be noted that the
information is of such nature that it may subject the complainant to
unnecessary harassment and may even amount to a breach of her
privacy. This court is duty bound to strike a balance between the
right of the accused to a fair trial and the right of the complainant
to freely participate in the administration of justice without having
an apprehension of breach of privacy. A delicate balance of
constitutional rights is involved in the matter. The information is inSignature Not Verified
Signed By:ANJALI KAUSHIKSigning Date:12.08.2025
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no manner essential for a fair trial of the accused and has ample
potential to infringe with the right of the complainant. … …
*****
“In light of this discussion, I am of the considered view that
the material forming the part of the chargesheet deals with all
material aspects of the case and no material has been selectively
left out. The material sought by the applicant is neither necessary
nor desirable at this stage. Accordingly, the application is devoid of
merits and is, dismissed.”
(emphasis supplied)
10. The court has heard Mr. N. Hariharan, learned senior counsel
appearing for the accused; Mr. Utkarsh and Mr. Digam Singh Dagar,
learned APPs appearing for respondent No. 1 (State); as well as
Mr.Abhay Kumar, learned counsel appearing for complainant.
SUBMISSIONS ON BEHALF OF THE ACCUSED
11. Mr. Hariharan, learned senior counsel appearing for the accused has
made the following principal submissions in the matter :
11.1. It has been submitted that the accused had made the following
limited prayers by way of his application under section 91
Cr.P.C. before the learned Magistrate, which hold specific
relevance in the context of the allegations 1 made against the
accused and the nature of the relationship between the parties
prior to registration of the subject FIR :
“a. To issue directions to the mobile phone service
providers to preserve the Call Detail Records (CDRs) of the
Mobile Numbers fhsdfhhhhhhh (Previously BSNL and
presently Airtel), fhsdfhhhhhhh (Airtel) and fhsdfhhhhhhh
(Airtel) from 01.04.2020 to 15.05.2023.
1
Section 6, 7 & 8 of Indian Evidence Act 1872
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b. To issue directions to the aforementioned
companies/portals and applications (Apps) as mentioned in
para 5 (e) and (f) of the present application to preserve
/provide the data/information mentioned therein; … … ”
(underscoring supplied; bold in original)
11.2. It has been pointed-out that the reference in prayer (b) above, to
the data and information referred-to in paras 5(e) and (f) of the
application, was a reference to the CDRs of the complainant’s
as well as the accused’s cellphone numbers for the period from
01.04.2020 to 15.05.2023, as well as to certain activities and
transactions undertaken by the complainant on online
platforms, as detailed in the application. Furthermore, learned
senior counsel has submitted that infact in para 5(g) of the
application, they had also set-out certain other CCTV footage
of the Delhi Airport and records of Indigo Airlines, which were
also sought to be preserved, though not specifically mentioned
in the prayers contained in the application. It has been
submitted that the period from 01.04.2020 to 15.05.2023 is the
period during which, according to the accused, an intimate
relationship had developed between the complainant and the
accused; and therefore, the conduct, nature and level of
engagement of the parties throughout that period was relevant
for a fair and just decision of the case;
11.3. Learned senior counsel has explained that the accused had
sought preservation of the data relating to the activities of the
complainant on certain online platforms, in order to show that
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the complainant had sent to the accused and even to his family
in Maharashtra, food, gifts, personal and household articles,
vegetables, grocery etc. through online platforms such as
Zomato, BigBasket, Myntra, Cleartrip, Domino‟s Pizza,
Wefast/Borzo Delivery, Amazon, Flipkart, Biryani By Kilo,
Swiggy and Ferns-N-Petals, as detailed in the application; and
that the complainant had also come to see-off and receive the
accused at the Indira Gandhi International Airport, New Delhi;
and had even booked air-tickets for the accused and his family;
11.4. Learned senior counsel has argued that it is necessary to
preserve the aforesaid data and information, since it is the
contention of the accused, that such data and information would
prove the true nature of the relationship between the
complainant and the accused, which would be relevant for
examining the allegations being made by the complainant
against the accused in the subject FIR. It has been argued that
this gains significance, especially since the complainant had
initially denied any acquaintance with the accused; though she
has subsequently changed that stand;
11.5. In this backdrop, learned senior counsel has argued, that though
in order dated 05.04.2024 the learned Magistrate had duly
appreciated the need for preservation of the aforesaid data and
information, in the subsequent orders dated 24.04.2024 and
28.05.2024, the learned Magistrate changed his view; and by
the later orders, has erroneously dismissed the application
under section 91 Cr.P.C. filed by the accused;
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11.6. Learned senior counsel has submitted, that to be clear, the
accused was not seeking disclosure or production of any of the
records by way of the application in question, but was only
seeking preservation of those records, since, considering the
nature of the records in question, such records would be
weeded-out by the concerned service providers after their
stipulated time-periods and subsequently would not be
retrievable at all;
11.7. It has been submitted on behalf of the accused that the CDRs
and other material sought to be preserved, would be
exculpatory evidence; and would be of absolute necessity and
relevance for a fair trial in the matter;
11.8. Answering the allegation that since the accused has himself
deleted data from his mobile phone and is therefore facing a
charge under section 201 IPC, it does not lie with the accused
to now demand preservation of data, it has been pointed-out
that the data on the phone of the accused was forcibly deleted at
the behest and instance of the complainant and her husband;
and a complaint dated 16.05.2023 to that effect has already
been made by the accused to the concerned police station;
11.9. On point of law, it has been argued on behalf of the accused
that in case of contestation between the right to privacy and the
right to fair trial, both arising from Article 21 of the
Constitution of India, the right to fair trial must trump the right
to privacy, on considerations of public justice. The argument is
that the right to privacy must yield to the right to the fair trial,
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since the former is essentially a personal right whereas the
latter is a right that affects public justice and has wider
ramifications;
11.10. It has also been argued on behalf of the accused that he is a
victim of a pre-planned conspiracy, whereby the complainant
and her husband are attempting to shield the actions of the
complainant, by pressurising the accused and by seeking to
frustrate his efforts to bring on record evidence which would
show the true nature of the relationship between the accused
and the complainant; and would absolve the accused of any
blame. It has been alleged that the accused was physically
assaulted and suffered grievous injuries at the behest and
instance of the complainant and her husband. That apart, the
data from the mobile phone of the accused was also forcibly
deleted by the complainant‟s husband, all of which is subject
matter of complaint dated 16.05.2023 lodged by the accused
with the police;
11.11. It has been submitted that by scuttling the process of collection
and preservation of exculpatory evidence, the complainant is
trying to conceal and deny the intimate, romantic relationship
that she had with the accused, since such evidence would
falsify the allegations contained in the subject FIR;
11.12. That apart, it has been submitted, that in any case, the learned
Magistrate could not have „reviewed‟ his own order by
changing the view taken on 05.04.2024 by the subsequent
orders dated 24.04.2024 and 28.05.2024; and
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11.13. It has also been pointed-out on behalf of the accused that in
affidavit dated 04.02.2025 filed by the I.O. pursuant to the
orders made by this court, the I.O. has stated that the CDRs
pertaining to the concerned mobile phones have been received
from Airtel only for the period 01.09.2022 to 15.05.2023; but
insofar as the CDRs for the period 01.04.2020 to 31.08.2022
are concerned, Airtel has said that that data is not available in
their CDR Frontend module system. It has been argued that
CDRs for the entire period 01.04.2020 to 15.05.2023 are
relevant for the purposes of the present matter; and that Airtel
cannot simply deny sharing that data by citing its unavailability
in their systems.
SUBMISSIONS ON BEHALF OF THE STATE
12. Appearing on behalf of the State, Mr. Utkarsh and Mr. Dagar, learned
APPs have contended as follows :
12.1. It has been submitted that the prayer for preservation of the
CDRs and other material made by the accused is beyond the
scope of section 91 Cr.P.C when tested on the anvil of
„necessity‟ and „desirability‟ of the evidence sought to be
preserved;
12.2. It is the case of the State that since the accused himself has
been accused of destroying evidence at the time of his
questioning, which they say has been confirmed by FSL
Gandhinagar, Gujarat and FSL Rohini, New Delhi; and he has
been charge-sheeted inter-alia for the offence under section
201 IPC, the prayer for preservation of evidence is notSignature Not Verified
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maintainable at his instance. Furthermore, it has been argued
that even at best, the material which the accused prays should
be preserved, would only reveal that the parties were
acquainted with each other, which in any case has not been
denied by the complainant. Learned APPs have also submitted,
that it must be noted that the accused is attempting to mislead
the court by seeking preservation of such evidence;
12.3. It has also been submitted that the material sought to be
preserved is not of sterling quality; and would therefore not
hold any relevance at the present stage, which is the stage of
framing of charge; and may at best only be required at the time
of cross examination of prosecution witnesses or at stage of
leading defence evidence;2
12.4. It has also been submitted that the CDRs that are subject matter
of the application under section 91 Cr.P.C. were not collected
by the I.O. in the course of investigation, since, in the I.O.‟s
understanding, those were not required for purposes of
investigation. It has been clarified that the I.O. has collected the
CDRs for the period 01.01.2023 to 16.05.2023, which have
been filed alongwith the charge-sheet;
12.5. Lastly, the State has submitted that it is of utmost relevance to
note, that the learned Magistrate has recorded that at the time of
passing the earlier order dated 05.04.2024, the I.O.‟s report was
incomplete, and most importantly, the accused had concealed2
State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568Signature Not Verified
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material information from the court. The learned Magistrate has
also noticed the conduct of the accused after filing of the
subject FIR, since the complainant had informed the
investigating agency that on 18.05.2023, the accused had sent
her an unsolicited gift alongwith a note, also threatening her to
withdraw the subject FIR; and
12.6. For completeness, it may also be recorded, that the State has
confirmed in the proceedings before the learned Magistrate that
no Internet Protocol Data Records (IPDRs) were collected in
the course of the investigation; and that there are no „un-relied
upon documents‟ available with the I.O., and therefore, the
question of supplying any IPDRs or un-relied-upon documents
to the accused does not arise. This has been recorded by the
learned Magistrate in order dated 22.04.2025.
SUBMISSIONS ON BEHALF OF THE COMPLAINANT
13. Mr. Kumar, learned counsel appearing for the complainant has
strongly opposed the relief sought by way of the present petition.
Supporting the submissions made on behalf of the State, learned
counsel for the complainant has principally raised the following four
contentions :
13.1. One, it has been argued on behalf to the complainant that it is
neither „necessary‟ nor „desirable‟ to direct the preservation of
the evidence referred to in the application under section 91
Cr.P.C. filed by the accused, since that evidence is neither
material nor relevant for a just decision of the matter. It has
been argued that since it is the admitted case that the
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complainant was acquainted with the accused, the data and
information sought would not be required to establish that
admitted fact. It has been argued that the allegations in the
subject FIR pertained to a particular period of time and the past
acquaintance of the parties is of no relevance for that purpose.
The contention is that the nature of the relationship between the
accused and the complainant, prior to that point of time, is
irrelevant and in order dated 28.05.2024 the learned Magistrate
has correctly taken the view that the relationship “could have
gone wrong from January 2023 onwards and the complainant
may have withdrawn her willingness and consent from the
relationship from that point onwards” ;
13.2. Two, it has been argued that an order directing the
„preservation‟ of the data and information asked-for would
amount to directing „further investigation‟ and „disclosure of
evidence‟, which was not the prayer in the application before
the learned Magistrate and cannot be directed in proceedings
under section 91 Cr.P.C. or even by this court in the present
proceedings under section 528 BNSS ;
13.3. Three, an order directing preservation of the data and
information sought-for would result in serious breach of the
complainant‟s privacy, which would prejudice her rights and
interests as a victim of a crime at the hands of the accused; and
13.4. Four, that it is settled law that an accused cannot seek a
direction under section 91 Cr.P.C. to collect evidence at the
stage when charges are yet to be framed, since an accused is not
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even entitled to be heard at that stage. It is the submission on
behalf of the complainant, that an accused may invoke his
rights and remedies at the stage of leading defence evidence; 3
13.5. In support of his submissions, the complainant has relied on
order dated 12.02.2024 passed by the Supreme Court in State
of Rajasthan vs. Swarn Singh @ Baba,4 arguing that in the
said case, the Supreme Court has observed that necessity and
desirability are the only tests for deciding an application under
section 91 Cr.P.C.; and that an accused does not have a right to
invoke section 91 Cr.P.C. at the stage of framing of charge,
which is the next stage in the present case; and
13.6. The principal objection raised by the complainant is that no
case is made-out for even allowing preservation of the
evidence as set-out in the application under section 91 Cr.P.C.,
since that evidence does not meet the twin criteria of „necessity‟
and „desirability‟ as required under the law.
DISCUSSION & CONCLUSIONS
14. Upon a conspectus of the matter, and after hearing learned counsel for
the parties at length, in the opinion of this court, the following aspects
need to be considered and answered :
14.1. The limited prayer in the application filed by the accused under
section 91 Cr.P.C. was to preserve the CDRs and other
electronic data as detailed in that application; and the accused3
State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568
4
Criminal Appeal No. 856/2024Signature Not Verified
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had not sought the production or disclosure of any of that
material. A perusal of the impugned orders shows, that after
having first issued a direction to the I.O. to preserve the data
and information as requested in the application, the learned
Magistrate subsequently recalled that direction, inter-alia being
persuaded by the allegation that the accused himself had erased
some data from his mobile phone with the intention of
destroying evidence; and that the accused was intending to
misuse the data and information that he was seeking by way of
the application, against the complainant. Without getting into
the aspect of whether the learned Magistrate could have
recalled his earlier direction, it is important to note that the
accused had called for the CDRs not just of the complainant’s
mobile phone numbers but also of his own mobile phone
number. In the application under section 91 Cr.P.C., the
accused had said this :
“… … It is stated that the locations, dates and
timings of their above-mentioned frequent meetings can be
verified from the respective Call Detail Records (CDRs) of
the Mobile Numbers ******* and 9*******
(Complainant’s Numbers) and 8800903483 (Applicant’s
Number) from 01.04.2020 to 15.05.2023. Moreover, during
the conversations, the complainant used to inform the
applicant that her mobile number *********** was rarely
used by her, especially after April 2022, as she suspected
that her phone had been hacked by her husband. Therefore,
the above-mentioned CDRs are essentially required for
placing the true facts and circumstances before the court,
during the trial and before other ongoing proceedings.”
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Furthermore, even if there was any ambiguity in the prayer, it
obviously would have been just and fair for the learned
Magistrate to call for the CDRs of the accused‟s mobile phone
number, which would have revealed information about who the
accused had called and who had called the accused, thereby
revealing the communications, if any, that the parties had had
with each other over mobile phones.
14.2. It may be observed that CDRs can reveal information such as
the number of times that calls are exchanged between parties,
the number of times one party calls the other and vice-versa,
the time of day when phone-calls are made or received, and the
duration of phone-calls exchanged between parties, etc., which
can be interpreted in the course of trial to examine the nature of
the engagement of parties with each other. To be clear, the
CDRs could turn-out to be elements of evidence, which are
either inculpatory or exculpatory, when examined in
conjunction with other evidence that may come on record.
Furthermore, the mere allegation that the accused had erased
data from his mobile phone while in police custody, in and of
itself, is no ground to have denied preservation of the data and
information requested by way of the application, especially in
view of complaint dated 16.05.2023 stated to have been filed
by the accused, alleging that the complainant‟s husband had
forcibly destroyed the data from his phone. It is pertinent to
note that the forensic report in respect of the mobile phone of
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the accused says that the phone was ‘factory reset’ on
17.05.2023 at 10:11:51 AM at PS: Parliament Street.
14.3. It is also elementary, that if data and information such as CDRs
and other electronic records, are not preserved at this stage,
they would quite definitely be weeded-out by the service
providers or be over-written in their information technology
systems; and would therefore subsequently become completely
irretrievable and unavailable. In fact, it is appropriate to note,
that according to the telecom service provider, the CDRs for a
substantial part of the relevant period relating to the above-
referenced mobile numbers, have already been weeded-out by
them, statedly in compliance with the terms of their license.
Furthermore, as noted in the learned Magistrate‟s order dated
24.04.2024, even the requested CCTV footage of the Indira
Gandhi International Airport, New Delhi has already been
wiped-out or erased by the authorities since it is only retained
for a limited period of 30 days.
14.4. In the course of submissions, there has been fierce contestation
on whether the CDRs and the data sought to be preserved
satisfy the test of „necessity‟ and „desirability‟ required under
section 91 Cr.P.C. The complainant and the State, both have
argued that the CDRs and other data in question fails the test of
necessity or desirability. The learned APPs have in effect
argued, that the data and information sought by way of section
91 Cr.P.C. application would only be needed, if at all, at the
stage of defence evidence; but since the matter before the
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learned Magistrate is at the stage of framing of charge, the
application under section 91 Cr.P.C. was premature; nor could
the learned Magistrate have considered the question of defence
evidence at this stage. Learned counsel appearing for the
complainant has also contended that disclosure of the data and
information sought by the accused would amount to a breach of
the complainant‟s privacy and should therefore not be
permitted.
14.5. However, this court views the foregoing submissions in a
different light. In the opinion of this court, the rival
submissions show that at the very least, the data and
information sought to be preserved by the accused may be
required for purposes of the trial, even if at the stage of defence
evidence. The accused contends that the data and information
would be necessary for him to show the nature of the
relationship between him and the complainant, both
contemporaneously with the time of registration of the subject
FIR as well as in the past period. It is the contention of the
accused that the complainant engaged in a very close and
intimate relationship with him, which factor would be relevant
to construe and decide the veracity of the allegations that the
complainant is making against him. Whether or not this
contention has substance cannot be determined at this nascent
stage, and it cannot be said that the data and information sought
to be preserved is unnecessary or undesirable for purposes of a
fair trial.
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14.6. In the opinion of this court therefore, the data and information
sought fulfils the test of necessity under section 91 of the
Cr.P.C. It also appears obvious, and beyond doubt, that the data
and information in question are perishable, in the sense that
these are bound to be weeded-out or overwritten over a period
of time. It can therefore hardly be contended with any
seriousness, that it is not desirable to preserve that data and
information right-away. It would be a travesty of justice to tell
the accused, that we know that the data and information is
bound to disappear for-good if it is not preserved at this stage,
but since the proceedings are only at the stage of framing of
charge, so at this stage, you have no right to ask that the data
and information which will disappear subsequently, even be
preserved. If evidence, claimed to be exculpatory, is allowed to
dissipate in this manner, with the court being fully aware that
such evidence would become irretrievable subsequently, it
could prejudice a fair trial.
14.7. The other objection strenuously raised on behalf of the
complainant is that the CDRs and other data and information
relating to the period prior to 01.01.2023 is irrelevant and of no
consequence. In the opinion of this court, that contention is too
broad to be accepted, since this court cannot lose sight of the
stand of the accused that the complainant and the accused were
in a relationship prior to that period, and to support that
submission, the accused has sought preservation of the CDRs
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and other data and information for the entire period from
01.04.2020 to 15.05.2023. This court also cannot ignore the
concept of res-gestae contained in sections 6, 7 and 8 of the
Indian Evidence Act, 1872 („Evidence Act‟) which makes even
the past conduct of parties relevant, in the following words :
6. Relevancy of facts forming part of same
transaction.–Facts which, though not in issue, are so
connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same
time and place or at different times and places.
7. Facts which are the occasion, cause or effect of
facts in issue.– Facts which are the occasion, cause or
effect, immediate or otherwise, of relevant facts, or facts in
issue, or which constitute the state of things under which
they happened, or which afforded an opportunity for their
occurrence or transaction, are relevant.
8. Motive, preparation and previous or subsequent
conduct.– Any fact is relevant which shows or constitutes a
motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any
party, to any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence
against whom is the subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue
or relevant fact, and whether it was previous or subsequent
thereto.
14.8. It must also be observed that, in any case, the „relevance‟ or
„admissibility‟ of the data and information in question, is not to
be examined at this stage. Section 91 Cr.P.C. hinges on two
tests : namely of „necessity‟ and „desirability‟; and whether or
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not the data and information sought would be „relevant‟ or
„admissible‟ in the course of trial; and whether the data and
information would have any persuasive value in aid of the
defence of the accused, are not aspects that would enter this
court‟s consideration while deciding an application under
section 91 Cr.P.C. At the risk of repetition, it must be noticed
that the accused is only seeking that the data and information in
question be preserved; and whether or not such data and
information is relevant or admissible, or whether it would
amount to breach of the complainant‟s privacy are all matters to
be considered subsequently in the course of the trial.
15. This court is constrained to note that in our process of criminal justice
dispensation, there is no formal system for an accused to collect
exculpatory evidence5, and an accused rarely has any effective means
of collecting such evidence. Since the means for an accused to collect
exculpatory evidence are woefully missing, investigating officers,
who invariably have an upper-hand at least at the stage of
investigation, fall into the temptation of keeping back evidence that
may be helpful to the defence. It is not uncommon for an investigating
agency to disclose only their side of the case, and regardless of the
repeated articulation by the Supreme Court of the true role of a public
prosecutor in Shiv Kumar vs. Hukam Chand 6 and in Manoj vs. State
5
Noor Aga vs. State of Punjab, (2008) 16 SCC 417, para 71
6
(1999) 7 SCC 467, paras 13 and 14
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of M.P. 7 , the proclivity of the prosecuting agencies is to secure
conviction at any cost, which shatters the concept of a fair trial.
16. Though the Supreme Court has said in Nirmal Singh Kahlon vs.
State of Punjab 8 that “fair investigation and fair trial are
concomitants to preservation of fundamental right of an accused
under Article 21 of the Constitution of India”; and that, clearly, the
right of an accused to a fair trial can only emanate from a fair
investigation, the ground reality is quite different.
17. In these circumstances, it is de rigueur that the preservation of
evidence claimed to be exculpatory must be the rule, unless the claim
is ex-facie baseless.
18. Preservation of exculpatory evidence is of the utmost sanctity for
purposes of ensuring a fair trial guaranteed under Article 21 of the
Constitution of India; and a narrow construction or interpretation of
section 91 Cr.P.C. must not stand in the way of preservation of such
evidence, whilst of course leaving it to the trial court to subsequently
decide whether such evidence is relevant and admissible.
19. In the present case, the accused contends that the communings
between the complainant and him from April 2020 upto May 2023 are
all relevant for examining the conduct, closeness and nature of their
engagement; and the allegations against him must be examined in the
context of the past relationship between the parties. This does not
appear to be an argument that can be rejected out-of-hand. Whether or
7
(2023) 2 SCC 353, para 199
8
(2009) 1 SCC 441, para 28
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not the trial court allows the accused to marshal those CDRs, data and
information in his defence, would be best left to the judgment of the
trial court.
20. A crucial aspect that has been raised on behalf of the complainant is
that the I.O. has already collected the CDRs and other data and
information for the period 01.01.2023 to 16.05.2023; and that such
data and information for any period prior to the aforementioned
period is wholly irrelevant and unnecessary for the purposes of the
trial. On the other hand, the accused has contended that his
relationship with the complainant began sometime in April 2020; and
soured sometime before the filing of the subject FIR on 16.05.2023.
The accused contends that the incidents that are the basis of the
allegations levelled against him must not be viewed in isolation; and
that the alleged criminality of his actions is required to be appreciated
in the context of the past relationship between the parties. This court
would refrain from commenting on this contention, except to point
out that on the concept of res gestae as contained in sections 6 and 7
of the Evidence Act read with section 8 of the Evidence Act, even the
past conduct of the parties may be relevant in relation to a fact in
issue.
21. This court is accordingly of the view, that whether or not the CDRs
and other data and information for the period prior to 01.01.2023 is
relevant, cannot be prejudged at this stage. Admittedly, it is the
complainant‟s case that her acquaintance with the accused dates-back
to sometime in April 2020; therefore, in the opinion of this court, the
preservation of CDRs and other related data and information for the
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period from 01.04.2020 to 15.05.2023, as contended by the accused,
is necessary and desirable.
22. As for the apprehension that mere preservation of the CDRs, data and
information sought by the accused, would amount to breach of the
complainant‟s privacy or would stigmatize her, this court is of the
view that this submission requires a calibrated response. It may be
observed that this court is not blind to the concerns of the
complainant; however, in the opinion of this court, such concerns
cannot stand in the way of at least preserving what the accused claims
to be exculpatory evidence. As a measured approach, this court would
direct that insofar as the CDRs are concerned, in order to obviate
unnecessary exposure of the complainant‟s CDRs, only the CDRs of
the accused for the period from 01.04.2020 to 15.05.2023 shall be
preserved, which would be adequate to show the communications, if
any, between the parties for that period. As for the other
apprehensions expressed by the complainant, suffice it to say that
those can be adequately protected by holding in-camera proceedings
and adopting such other measures, at the appropriate stage, if so
warranted, as the learned trial court may consider proper.
23. This court is at pains to reiterate, that all that is being sought by the
accused is that certain CDRs, data and information be preserved, so
that it is not irretrievably lost by the time the stage comes for the
accused to marshal defence evidence. Whether the evidence preserved
is relevant or admissible, or whether it should be taken on record,
considering the complainant‟s privacy and such other aspects, would
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be considered at the appropriate stage by the learned trial court. The
right of the accused to adduce defence evidence cannot be foreclosed.
24. Coming next to the argument that the application under section 91 of
the Cr.P.C. was premature, since the accused had no right to be heard
before the stage of framing of charge, in the opinion of this court, in
the day and age of electronic evidence, it would be a travesty of
justice if the court takes the view that it would not direct even
preservation of electronic evidence, until the time comes for recording
defence evidence. Since the court is aware that such evidence would
inevitably be erased or deleted within certain time frames, declining
to preserve such evidence would be a recipe for disaster of a fair trial.
This position can never be countenanced by the court.
25. Insofar as the present proceedings are concerned, in any event, this
court would not hesitate to exercise its inherent powers under section
528 of the BNSS, to allow the preservation of the data and
information sought by the accused-petitioner in the present case, ex-
debito – justitiae.
26. Now, a perusal of order dated 24.04.2024 shows that in the
compliance report filed by the I.O. pursuant to order dated 05.04.2024
made by the learned Magistrate, the I.O. has confirmed that the CDRs
for the relevant period had already been preserved; and that the CCTV
footage from the various places has been seized, though the CCTV
footage from the Indira Gandhi International Airport, New Delhi was
already weeded-out.
27. Pursuant to various orders made in the present proceedings, vidé
affidavits dated 04.02.2025 and 02.04.2025, the I.O. has stated that he
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has received the requested data/information from all concerned
entities except Cleartrip; and that insofar as Zomato, Big Basket,
Myntra, Wefast/Borzo and Amazon Delivery are concerned, the
data/information has been received but without a certificate as
required under section 65B of the Evidence Act.
28. As a sequitur to the above, this court is inclined to partly allow the
present petition, thereby setting-aside orders dated 24.04.2024 and
28.05.2024, and restoring order dated 05.04.2024 passed by the
learned Magistrate with certain modifications.
29. It is hereby directed that the CDRs – only of the accused – and all
other data and information as set-out in para 5(e) to 5(g) of the
application filed by the accused under section 91 of the Cr.P.C., be
preserved along with requisite certificates as required under section
65-B of the Evidence Act. The CDRs of the complainant that have
been received be destroyed by the learned Magistrate. If, and to the
extent, that some of the data and information sought, or an adequate
response, has not yet been received from the concerned entities, the
learned Magistrate is directed to take requisite steps to ensure that
such data, information or response is received expeditiously, for being
preserved.
30. As a further caveat, it may be observed that the complainant‟s data
and information received from the entities referred-to above,
pertaining only to her transactions with the accused and his family, is
required to be preserved.
31. It is made clear that, once received, the CDRs, data and information
will be filed with the learned Magistrate and shall be retained in that
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court, after the learned Magistrate has verified that the data is
accessible, without disclosing it to either the accused or the
complainant, at this stage. Both the accused and the complainant shall
be at liberty to file appropriate applications before the learned
Magistrate, seeking disclosure or production of such CDRs, data and
information, at the appropriate stage, as may be permissible, in
accordance with law.
32. The petition is disposed of in the above terms.
33. Pending applications, if any, also stand disposed-of.
ANUP JAIRAM BHAMBHANI, J.
AUGUST 12, 2025
HJ
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