Criminal defence access to call data records: Section 91 may be used to seek relevant material even if prosecution does not rely on it.

Section 91 of the CrPC has a wide reach and can be invoked by an accused to seek relevant call data records and connected material for defence, even if the prosecution does not rely on them. The right to place material before the court for effective cross-examination and defence is distinct from the duty to supply copies under Section 207. Where the records may assist an alibi or otherwise support innocence, refusal on the ground of prosecution non-reliance is unsustainable. The court should also actively test claims that such records are unavailable by examining nodal officers, allowing cross-examination, and using procedural powers to explore retrieval or production, so as to secure a fair opportunity of defence.

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Issues: (i) whether the accused could invoke Section 91 of the Code of Criminal Procedure, 1973 to summon call data records and connected material for the purpose of defence, even if the prosecution did not rely upon them; (ii) whether the trial court ought to have required the nodal officers to confirm non-availability of the records on oath and taken further steps, including examination of officials and experts, to ascertain whether the records could be retrieved or produced.

Issue (i): whether the accused could invoke Section 91 of the Code of Criminal Procedure, 1973 to summon call data records and connected material for the purpose of defence, even if the prosecution did not rely upon them.

Analysis: The scope of Section 91 is wide and is not confined to documents relied upon by the prosecution or to any particular stage of the trial. The right of an accused to place relevant material before the court for effective cross-examination and defence is distinct from the narrower duty to supply copies under Section 207. Where the requested records are relevant, admissible, and may assist in establishing innocence or an alibi, the fact that the prosecution does not rely on them is not by itself a valid ground to refuse production.

Conclusion: The accused were entitled to seek production of the call data records for defence purposes, and the earlier refusal on the ground that the prosecution did not rely on them was unsustainable.

Issue (ii): whether the trial court ought to have required the nodal officers to confirm non-availability of the records on oath and taken further steps, including examination of officials and experts, to ascertain whether the records could be retrieved or produced.

Analysis: In a case involving grave charges, the court must ensure a full and fair opportunity of defence. A claim that relevant material is unavailable or destroyed cannot be accepted mechanically, particularly where the prosecution's stand has varied over time. The trial court could have examined the nodal officers on oath, allowed cross-examination, and, if necessary, used its powers under Sections 311 of the Code of Criminal Procedure, 1973 and 165 of the Indian Evidence Act, 1872 to summon officers or experts and explore whether the data could be retrieved. The court also ought to have considered whether a search warrant could be issued if possession of the records was shown.

Conclusion: The refusal to require affidavits and the failure to take further steps to verify availability and retrieval of the records were improper; the matter had to be reconsidered by the trial court in accordance with law.

Final Conclusion: The appeals succeeded in part, the impugned orders were set aside, and the trial court was directed to adopt further procedural steps to secure a fair opportunity for the defence to obtain and adduce the relevant call data records and connected evidence.

Ratio Decidendi: Section 91 of the Code of Criminal Procedure, 1973 has a wide reach and may be invoked by an accused to summon relevant defence material; a court must actively secure a fair trial by using its procedural powers to test claims of non-availability and to facilitate production of potentially exculpatory evidence.

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