Safiya Malik

The High Court of Delhi Single Bench of Justice Anup Jairam Bhambhani has set aside orders of the trial court which had denied preservation of certain call detail records and electronic data sought by the accused in a criminal case. The court directed that the call detail records of the accused, along with specified electronic data, be preserved in compliance with Section 65-B of the Evidence Act, while ensuring the complainant's privacy. The bench held that the preservation of evidence claimed to be exculpatory is essential for ensuring a fair trial under Article 21 of the Constitution and must be permitted unless the claim is manifestly baseless.

The proceedings arose from allegations of stalking and sexual harassment made by the complainant against the accused, resulting in the registration of an FIR under Sections 354, 354-D, 506, 509, 201, and 204 of the Indian Penal Code, along with Section 67 of the Information Technology Act. The accused contended that between April 2020 and May 2023, the relationship between him and the complainant was intimate and consensual, which later soured. He sought preservation of call detail records (CDRs) for both his and the complainant's numbers, records of online transactions, and certain CCTV footage, claiming these would establish the true nature of their relationship.

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The accused filed an application under Section 91 of the CrPC seeking these records' preservation. Initially, the Magistrate directed the Investigating Officer to preserve the requested data. Subsequently, the Magistrate reversed this order, citing potential misuse of the data and possible infringement of the complainant's privacy. The accused challenged this before the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, also relying on previous Supreme Court directions allowing the High Court to decide the matter on merits.

The accused argued that he was not seeking disclosure but only preservation to prevent the loss of perishable data due to retention limits by service providers. He maintained that such evidence could be vital for his defence and would be lost forever if not preserved. He further contended that the right to a fair trial under Article 21 outweighs the right to privacy in this context.

The State opposed, arguing that the accused had himself destroyed evidence, as confirmed by forensic analysis, and that the requested data was irrelevant to the period of alleged offences. The complainant also opposed, asserting that the preservation request would breach her privacy and that the evidence sought did not meet the necessity and desirability test under Section 91.

Justice Bhambhani recorded that "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 accused had not sought the production or disclosure of any of that material." The court noted that CDRs could reveal patterns of communication relevant to assessing the nature of the relationship and that denying preservation merely because the accused was alleged to have deleted data was not justified.

The court stated 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... and would therefore subsequently become completely irretrievable and unavailable." It found that the evidence might be required for the defence and fulfilled the necessity criterion under Section 91.

On the privacy concern, the court held that "such concerns cannot stand in the way of at least preserving what the accused claims to be exculpatory evidence" and suggested measures like preserving only the accused's CDRs to protect the complainant.

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The court also observed that there is "no formal system for an accused to collect exculpatory evidence" and that the preservation of such evidence must be the rule unless the claim is manifestly baseless.

The High Court set aside the Magistrate's orders dated 24 April 2024 and 28 May 2024, restoring the earlier order dated 5 April 2024 with modifications. It directed that only the CDRs of the accused for the period from 1 April 2020 to 15 May 2023, along with other data specified in the application, be preserved with Section 65-B certificates. The CDRs of the complainant already obtained were ordered to be destroyed. Data relating to the complainant's transactions with the accused and his family was to be preserved. All preserved material is to remain in the trial court's custody without disclosure to either party at this stage, with applications for disclosure to be considered at the appropriate stage.

Advocates Representing the Parties:
For the Petitioners: 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.

For the Respondents: 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. Shagum Ruhil, and Mr. Karan Chopra, Advocates for R-2.

Case Title: Sohail Malik v. State NCT of Delhi & Anr.

Neutral Citation: 2025: DHC:6718

Case Number: CRL.M.C. 6745/2024

Bench: Justice Anup Jairam Bhambhani