Rajasthan HC: High Court Affirms Accused’s Right to Seek Call and Location Details of Prosecution Witnesses During Prosecution Evidence

 The petitioner herein is under-trial being accused serious offence under Section 302 of IPC. If he is held guilty, the consequence thereof may result into death penalty and/or conviction for life imprisonment. Any negligence or dereliction in adducing of the evidence, needless to say, will result in miscarriage of justice and severely jeopardize the defence of the accused. {Para 12}

13. On a Court query, it transpires that currently prosecution testimony is being recorded by the trial court. Given the work load, it may so happen that at the stage of defence evidence, owing to the delay, the call details and location details, which the accused have been advised to adduce in their evidence, may be deleted from the data bank of the service provider of the mobile network of which the accused as well as other witnesses are subscribers.

15. Section 95, supra, thus allows the court to direct postal authorities to produce documents or records that are relevant to a pending trial. The section explicitly grants courts the authority to order the preservation and production of such records, irrespective of whether the documents are in the custody of the accused or not. As per Section 95, the court can direct service providers to produce and retain the required records even before the defense stage, ensuring that these documents are available when needed. This provision thus supports the petitioners' plea to secure the records to avoid their deletion later on by sheer passage of time.

15.1. I am of the view that in the modern day context, postal authority is to be read in a way so as to mean and include even the telecom authority which is a similar service provider qua the electronic data it preserves on behalf of and, delivers, to its consumers. Accordingly, any document or electronic data or a thing, which is not in custody of the accused but with the third party, i.e. postal authority or the telegraph/telecom authority/service provider, but, at the same time, it is relevant for the purpose of the pending trial can be directed by the trial court to be produced in the court as a piece of evidence.

16. If by the time the stage of defense evidence is reached, the call details and location details, which the accused have been advised to adduce in their evidence, have already been deleted from the data bank of the service provider of the mobile network, then the petitioner would be deprived of valuable opportunity of producing their evidence and would thus be seriously prejudiced in his defence.

17. Trite it may sound, but procedure being the handmaid of justice, should not be allowed to thwart justice. Procedural rules exist to facilitate justice, not to hinder it. If strict adherence to procedural rules leads to the destruction of evidence and deprives the accused of a fair chance to defend themselves, the court should exercise its discretion to deviate from the norm. The court should use its powers to ensure that procedural delays do not result in an injustice. Allowing the preservation of electronic records before they are lost is essential for procedural fairness and the integrity of the judicial process.

18. Moreover, the right to a fair trial is enshrined in Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. Personal liberty includes the right to defend oneself in a criminal prosecution. Any deprivation of the accused's ability to present crucial evidence, such as call details and location records, would constitute a violation of this fundamental right. The prosecution is expected to prove its case beyond a reasonable doubt. Similarly, the accused must be given every reasonable opportunity to contest the evidence and present their defense. Failure to preserve critical evidence like call and location details severely hampers the accused's ability to mount a defense, undermining the concept of a fair trial. Courts are duty-bound to avoid miscarriage of justice. Allowing key evidence to be lost due to procedural delays would also result in an unfair trial, which could lead to a wrongful conviction or harsher punishment (including life imprisonment or even the death penalty in this case). By not securing crucial evidence for the defense (which is in the possession of a third party), the court would inadvertently tip the balance in favor of the prosecution, thus creating a disparity which must be obviated.

Ratio: The court at the stage of prosecution evidence, on the application of accused can direct telecom authority/service provider to produce call details and location details of prosecution witnesses.

 IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 5372/2024

Mala Ram Vs. State of Rajasthan

Hon'ble Judges/Coram:

Arun Monga, J.

Decided On: 04.09.2024

Citation: 2024:RJ-JD:36831, MANU/RH/1477/2024.

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Supreme Court: Last seen theory based on CCTV footage- Prosecution failed to produce Certificate under S 65-B(4) in its support-CCTV Footage is not admissible in evidence

 In this case, learned Counsel Mr. Shri Singh contends that even though there was no objection when PW-1 marked the exhibits; question was put to PW-38 Vyanket Bhanudas Patil about the need for Section 65-B certificate and its absence in the case of CCTV footage particularly when Section 65-B certificate was furnished for CDR report by the police. Relevant part of the deposition of PW-38 reads as under:

It is correct to say that while calling the CDR reports, I called the certificates Under Section 65-B of Evidence Act. It is correct to say that I was aware that while collecting the electronic evidence, the certificate is required. It is correct to say that I have not collected the certificate for CCTV footage. It is correct to say that I have not taken any authority letter from railway or said company to show that Chandramani Pandey has authority to handle the CCTV server. It is correct to say that the papers which were received from the Kanjur Marg police station, no such certificate was received. {Para 41}

42. The deposition of PW-38, when this question was put, was recorded on 18.06.2015 when the judgment in Anvar P.V. (supra) was holding the field. The prosecution ought to have taken a cue and attempted to remedy the situation. They have not done so.

43. We are dealing with a criminal case where the Accused is being tried for the offences which involve capital punishment. A court of law in this scenario cannot be technical about the manner of objections that are raised. Even though objection has not been raised specifically when the CCTV footage was exhibited by PW- 1, when PW-38 was in the witness box a specific question was put to him and subsequent to evidence, he deposed that he was aware of the necessity of furnishing 65-B certificate while collecting electronic evidence. On the facts of the present case, we are inclined to treat it as an objection taken at the earliest point in time. Thus, when the prosecution was aware of the need for the 65-B(4) certificate and they themselves collected it for the CDRs there was no reason as to why they did not collect the same for the CCTV footage.

51. In view of the above, we are not able to place any reliance on the CCTV footage, insofar as an attempt is made by the prosecution to attribute that the Appellant and the deceased EA were last seen together based on the CCTV footage. We eschew the same from consideration.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 879 of 2019

Decided On: 28.01.2025

Chandrabhan Sudam Sanap Vs. The State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: MANU/SC/0112/2025.

Read full Judgment here: Click here. 

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Supreme Court: Under which circumstances the CCTV footage will not tantamount to "last seen together evidence"?

According to the learned Counsel, the CCTV footage will not tantamount to "last seen together evidence" as identification of the Appellant and the deceased in the same footage has not been proved. Learned Counsel submits that no witness identified both the deceased and the Appellant in the CCTV footage and the two witnesses to whom the CCTV footage was shown Singavarapa Jonathan Surendra Prasad PW-26 (who identified his daughter) and PW-27 who identified the Appellant have not established the fact that the identifications were in the same footage. PW-26 identified only his daughter coming out with her bag and with an unknown person on platform No. 4 of LTT Station and PW-27 saw the footage and identified the Appellant, in one footage with the cold drink bottle and in another with the trolley bag but did not mention presence of any girl, contends the learned Counsel. Learned Counsel contends that PW-27's identification did not inspire confidence as it was as late as on 26.03.2014; that the police brought him into the picture and nothing was there to establish that PW-27 knew the Appellant as a person who roams in the area. Learned Counsel further contends that PW-38 Vyanket Bhanudas Patil admitted that he did not collect the address proof of PW-27. According to the learned Counsel, it is unclear as to how the police knew that the persons PW-18 and PW-19 were speaking to the same person who was seen in the footage.

{Para 33}

34. We find that the infirmities referred to by the defence namely, about the life span of the CCTV footage in DVR-II being 12 days; the absence of identification of both the Appellant and deceased in the same footage by the witnesses; the absence of explanation as to how the Police knew that the person PW-18 and 19 were speaking to was the same person in the footage and other infirmities raised have not been adequately answered by the prosecution in its evidence. Learned Additional Solicitor General Mr. Raja Thakare painstakingly took us through the available evidence and objectively placed the matter before us. However, from the material available on record, these lingering doubts in our mind have not been adequately addressed.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 879 of 2019

Decided On: 28.01.2025

Chandrabhan Sudam Sanap Vs. The State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: MANU/SC/0112/2025.

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What is the basic concept of admissibility of electronic record with reference to provisions of the Indian Evidence Act, 1872?

 The admissibility of electronic records in India is governed by the provisions of the Indian Evidence Act, 1872. With the advancement of technology, electronic records have become an integral part of contemporary evidence in legal proceedings. The Indian Evidence Act has been amended to address the admissibility of electronic records, recognizing their importance in litigation. Here's a note on the admissibility of electronic records with reference to the Indian Evidence Act, 1872:

1. Definition of Electronic Record (Section 2(1)(t)) of The Information Technology Act, 2000: It defines an electronic record as "data, record, or data generated, image, or sound stored, received, or sent in an electronic form or microfilm or computer-generated microfilm."

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