2015 (5) TMI 1164 - HC - Indian Laws

High Court grants production of Call Detail Records emphasizing fair trial rights

Suresh Kalmadi Versus CBI

The High Court set aside the order dismissing the application for the production of Call Detail Records (CDRs) and allowed the petitioner's request for ... Application seeking production of Call Detail Records for the phone number '9811806773' of Mr. Jyoti Chhabra being a representative of a company by the name of ATOS Origin - petitioner had prayed in the application for the production of Call Detail Records for the purpose of cross-examining PW-18 Mr. Sujit Panigrahi - It is the case of the petitioner that he was also in a commercial relationship with Microsistemas Lagasca S. A. de Madrid (hereinafter referred to as 'MSL'), which had in fact bid for the TSR RFP. It is the case of the prosecution that the contract for Timing Scoring and Results systems for the Commonwealth Games 2010 ought not to have been awarded to Swiss Timing/Omega, but to a Spanish company by the name of MSL Software. Held that:- The petitioner is facing trial for an offence which may entail him punishment. He is seeking production of those documents and things which according to prosecution records even appear to be inexistence and which he feels shall help him in defending himself. According to him that these documents are connected with the case in hand. Therefore, it cannot be argued straightway that he is trying for making of any roving or fishing inquiry or is making a request which may be unreasonable. It is settled law that in a criminal trial the prosecution has to be absolutely fair and impartial. The main purposes of a criminal trial is not to get some one convicted. The object is to discover the truth and punish the accused if found guilty. The documents which he himself cannot procure for the purposes of putting his defence have to be requisitioned by invoking Section 91 Cr.P.C., if the Court is satisfied that those are necessary or desirable for the purpose of trial. The defence has to be built up from day one of the trial. The right to defend, which flows from the fundamental right to 'life' and 'personal liberty' enshrined in Article 21 of the Constitution of India, is not an illusionary right, but a substantive one. The tool given in the hands of the court to discover the truth of the controversy before it. The power under Section 91 Cr.P.C. to discover the truth and to do complete justice to the accused. Naturally, the discretion vested in the Court must be applied judiciously, while keeping in mind the constitutional mandate, and the purpose of Section 91 Cr.P.C. In the present case, Trial Court has observed that the petitioner does not require the Call Detail Records of Mr. Jyoti Chhabra for the cross examination of PW -18 Sujit Panigrahi on the ground that the records are 'hardly of relevance' when the mobile call record of PW-18 is already on record. The Trial Court apparently did not make relevancy of the onward communications of Mr. Jyoti Chhabra with officers of MSL - Trial Court did not consider the request of the petitioner that the Call Detail Records of PW -18 Sujit Panigrahi cannot establish the nexus between representatives of MSL, Jyoti Chhabra and PW-18 Sujit Panigrahi. Call Detail Records of PW-18 Sujit Panigrahi only demonstrate communication between PW-18 Sujit Panigrahi and Mr. Jyoti Chhabra which cannot disclose the onward communication between Mr. Jyoti Chhabra and representatives of MSL. The application filed by the petitioner before the trial court is allowed by quashing the impugned order for summoning the Call Detail Records for '9811806773'of Mr. Jyoti Chhabra of ATOS Origin - petition disposed off. Issues Involved:1. Quashing of the order dated 16th May 2015 by the Special Judge.2. Production of Call Detail Records (CDRs) under Section 91 of the Code of Criminal Procedure, 1973.3. Relevance and necessity of CDRs for the defense.4. Fair trial and right to defense under Article 21 of the Constitution of India.5. Inconsistent application of Section 91 Cr.P.C. by the Trial Court.Issue-wise Detailed Analysis:1. Quashing of the Order Dated 16th May 2015 by the Special Judge:The petitioner sought to quash the order dated 16th May 2015 passed by the Special Judge, which dismissed the application under Section 91 Cr.P.C. for the production of Call Detail Records (CDRs) of Mr. Jyoti Chhabra. The petitioner argued that these records were crucial for cross-examining PW-18, Mr. Sujit Panigrahi, and establishing the defense.2. Production of Call Detail Records (CDRs) under Section 91 Cr.P.C.:The petitioner filed an application under Section 91 Cr.P.C. seeking the production of CDRs for the phone number '9811806773' of Mr. Jyoti Chhabra, a representative of ATOS Origin, a potential bidder for the TSR contract. The application aimed to demonstrate constant communication between PW-18 and Mr. Chhabra, and onward communications between Mr. Chhabra and representatives of MSL.3. Relevance and Necessity of CDRs for the Defense:The petitioner contended that the CDRs were necessary to establish the defense and disprove the principal charge of a criminal conspiracy to favor M/s. Swiss Timing. The petitioner argued that the CDRs of PW-18 alone could not reveal the onward communications between Mr. Chhabra and MSL representatives, which were crucial to the defense.4. Fair Trial and Right to Defense under Article 21 of the Constitution of India:The petitioner emphasized that the right to a fair trial and defense is a substantive right under Article 21 of the Constitution. The petitioner cited various judgments to argue that the court must ensure the accused is not prejudiced and has access to relevant evidence for an effective defense.5. Inconsistent Application of Section 91 Cr.P.C. by the Trial Court:The petitioner pointed out that the Trial Court had previously allowed similar applications under Section 91 Cr.P.C. for the production of CDRs of other witnesses but rejected the application for Mr. Chhabra's CDRs. This inconsistency was highlighted to argue that the Trial Court's order was not sustainable in law.Conclusion:The High Court set aside the impugned order, allowing the petitioner's application for the production of Mr. Jyoti Chhabra's CDRs. The Court directed the Trial Court to pass an order for the preservation of these records until the conclusion of the trial. The petition was disposed of, emphasizing the necessity of a fair trial and the right to defense.