Accused’s right to fair trial to prevail over police privacy: High Court

Saurabh Malik

Chandigarh, December 8

In a significant order on preserving and requisitioning call details and tower location of the police officials probing cases, the Punjab and Haryana High Court has emphasised that the right of an accused to a free and fair investigation and trial will take precedence over the privacy rights of law enforcement and investigating officers.

Referring to Section 91 of the CrPC, Justice Harpreet Singh Brar asserted the right of an accused to invoke the provision for obtaining documents in support of his defence had been recognised by the constitutional courts. The legislative intent its enactment was to ensure that no cogent material or evidence involved remained undiscovered in unearthing the true facts during investigation, inquiry, trial or other proceedings.

The provision allows a court or a police officer to issue summons or written order for the production of a document or other material. Justice Brar asserted: “No doubt while passing the appropriate direction for preserving and production of call details/tower location details under Section 91 of the CrPC would violate the right to privacy of the police officials, but the right of the accused under Article 21 of the Constitution in ensuring free and fair investigation/trial would prevail over the right to privacy of the police officials.”

Justice Brar further asserted that some extent of privacy could be breached in call details’ production as it would facilitate the trial court in discovering the truth and rendering justice. But it was fair to all stakeholders.

Justice Brar also ruled that the denial of adequate opportunity to the accused by non-production of electronic record, admissible under Section 65-A and 65-B of the Indian Evidence Act, would amount to miscarriage of justice. Section 91 helped in facilitating a fair and just resolution of a case by ensuring the availability of relevant evidence to the court for making “informed decisions and arrive at a just and fair outcome”.

It also enabled the court to secure important documentary evidence which might be in possession of individuals or organisation and helped preventing the destruction, tampering or loss of crucial documents, maintaining the integrity of the judicial process.

Justice Brar, at the same time, ruled that the accused was required to prove necessity and desirability of evidence that would be relevant to establish the guilt or innocence of the accused. The right of privacy of the police officials could not be breached at the ipse dixit or unproven statement of the accused.

“As principles of natural justice are integral part of a fair trial under Article 21, any denial of the best available evidence or effective and substantial hearing to accused in proving defence would amount to denial of free and fair trial,” Justice Brar added.