Section 91 CrPC and defence access to CDRs: preservation of mobile records may support a fair trial defence

An accused may seek preservation and production of call detail records and tower-location data under Section 91 CrPC where the material is said to support the defence, including a claim of illegal custody and a compelled statement. The court accepted that fair opportunity to prove the defence can justify directing preservation of electronic records needed for later production, and found no prejudice to the department from such preservation. The application was accordingly allowed, and mobile operators were directed to preserve and file the relevant records.

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Issues: Whether the accused was entitled under Section 91 of the Code of Criminal Procedure, 1973 to seek preservation and production of CDRs and tower location details of mobile phones of the accused and DRI officials for use in his defence.

Analysis: The application was founded on the plea that the electronic records were necessary to support the defence that the accused had remained in illegal custody and had been compelled to make a statement. The Court accepted that an accused must be afforded a fair opportunity to prove his defence and that call detail records and tower-location data could help ascertain the actual facts. It also noted that such material would have to be preserved before it could be produced and that no prejudice would be caused to the department by directing preservation of the records.

Conclusion: The application under Section 91 of the Code of Criminal Procedure, 1973 was allowed and the mobile operators were directed to preserve and file the relevant CDRs and tower-location details.

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