With all humility, one has to candidly and fairly acknowledge in the fitness of things that in a case pertaining to trap proceedings, the Single Judge Bench comprising of Hon'ble Mr Justice Anoop Kumar Dhand of the Jaipur Bench of the Rajasthan High Court at Jodhpur in a most learned, laudable, landmark, logical and latest judgment titled Narendra Kumar Soni vs State of Rajasthan in S.B. Criminal Miscellaneous (Petition) No.4342/2024 and cited in Neutral Citation No.: 2025:RJ-JP:781 and so also in 2025 LiveLaw (Raj) 27 that was pronounced as recently as on 07/01/2025 has minced absolutely just no words to reiterate most firmly that the right of an accused to a free and fair probe/trial under Article 21 in seeking call/tower location details under Section 91 CrPC would prevail over the right to privacy of the police officials. It must also be noted that the Bench further added pointing out specifically that this right of privacy can be breached to some extent for production of call details to discover the truth and to ensure fairness towards all stakeholders. Very rightly so!
At the very outset, one must definitely note that this progressive, pragmatic, pertinent and so also persuasive judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice Anoop Kumar Dhand of the Jaipur Bench of the Rajasthan High Court at Jodhpur sets the ball in motion by first and foremost putting forth in para 1 that, "By way of filing of this petition, a challenge has been made to the impugned order dated 01.06.2024 passed by the Special Judge, Prevention of Corruption Act, Kota whereby she had partly rejected the application filed by the petitioner under Section 91 Cr.P.C. for summoning the tower locations of the witnesses of the trap proceedings."
To put things in perspective, the Bench envisages in para 2 that, "Learned counsel for the petitioner submits that the petitioner has been falsely booked in an anti-corruption case. Counsel submits that in fact no trap proceedings were conducted on 10.03.2023 and presence of the two witnesses, namely, Sonu Meena and Jitender Meena has been incorrectly mentioned/incorporated in the trap proceedings. Counsel submits that these witnesses were not present and at the time of alleged proceedings even then, their presence has been shown at the place of alleged occurrence. Counsel submits that as per the footage of the CCTV camera, only three persons, namely, the petitioner, brother of the complainant and one unknown person were present while neither the trap party nor these two above witnesses were present. Counsel submits that in order to verify the aforesaid fact, an application was submitted under Section 91 Cr.P.C. with the prayer for preserving the location of the mobile numbers of these witnesses including the mobile number of the complainant and Investigation Officer along-with other members of the trap party."
As we see, the Bench then further discloses in para 3 stating aptly that, "Counsel submits that the said application submitted by the petitioner was partly allowed by the Court below and mobile locations of the complainant as well as the Investigating Officer were ordered to be preserved, but the prayer with regard to preserving mobile locations of the above two witnesses, namely, Sonu Meena and Jitender Meena and other members of the trap party has been declined. Counsel submits that the Court below has committed an error in not accepting the prayer made by the petitioner with regard to preservation of the mobile locations of these two witnesses, namely, Sonu Meena and Jitender Meena."
Do note, the Bench then notes in para 4 that, "Counsel submits that in the light of the following judgments passed by this Court and the Apex Court in the cases of Kapil Vs. State of Rajasthan Through P.P. reported in 2021 (3) Cr.L.R. (Raj.) 844 & Suresh Kumar Vs. Union of India reported in 2014 SCC OnLine SC 1833, the direction be issued to the concerned mobile company to preserve the location of the mobile phones of Sonu Meena and Jitender Meena."
On the contrary, we see that the Bench then lays bare in para 5 mentioning precisely that, "Per contra, learned Public Prosecutor opposed the prayer and submitted that the Trial Court has already partly allowed the application filed by the petitioner under Section 91 Cr.P.C. and the call details, mobile locations of the complainant as well as the Investigating Officer were ordered to be kept preserved. Counsel submits that the Trial Court has not committed an error in not accepting the prayer of the petitioner with regard to preserving the mobile locations of the above two witnesses along-with other witnesses of the trap party, hence, under these circumstances, interference of this Court is warranted."
Do further note, the Bench then notes in para 7 that, "As per contents of the application submitted by the petitioner under Section 91 Cr.P.C., no trap proceedings were conducted by the trap party in the short time on 10.03.2023, i.e., from 1:40 PM till 3:18PM. It has been alleged in the said application that fabricated documents and evidence has been prepared by the Investigating Agency at the behest of the complainant to falsely implicate the petitioner in the instant case, that is why, a prayer was made to preserve the location of the mobile phones of the complainant, Investigating Officer, witnesses, namely, Sonu Meena and Jitender Meena and other members of the trap party in order to ascertain the truth with regard to the correctness of the trap proceedings conducted by the Investigating Agency."
As it turned out, the Bench enunciates in para 8 that, "The application filed by the petitioner has been partly allowed and the direction has been issued to preserve the mobile location of the complainant as well as the Investigating Officer, but the prayer of the petitioner with regard to other witnesses, i.e., Sonu Meena and Jitender Meena has been declined."
Do also note, the Bench notes in para 9 that, "Learned counsel for the petitioner has confined his prayer with regard to preserving the tower location of the mobile phones of Sonu Meena and Jitender Meena in the light of the judgment passed by the Hon'ble Apex Court in the case of Suresh Kumar Vs. Union of India reported in 2014 SCC OnLine SC 1833."
To be sure, the Bench discloses in para 10 that, "In order to reveal the truth whether above these two witnesses were present on the spot or not when the trap proceedings were conducted on 10.03.2023, the application was submitted by the petitioner under Section 91 Cr.P.C. for getting the tower locations of their cell-phones. The tower location of the cell-phones of these witnesses on the scene of offence is the probable distance of the petitioner to unearth the true facts, during the course of trial."
Most significantly and most remarkably, what constitutes the cornerstone of this notable judgment is then encapsulated in para 13 postulating that, "Preserving and requisitioning of the call details and tower location details would be necessary, otherwise the same would be lost forever. The right of the accused to invoke the provisions of Section 91 Cr.P.C. for obtaining documents in support of his defence has been recognized by the Constitutional Courts. The legislative intent behind enactment of Section 91 Cr.P.C. is to ensure that no cogent material or evidence involved in the issue remains undiscovered in unearthing the true facts during investigation, enquiry, trial or other proceedings. No doubt while passing the appropriate direction for preserving and production of call details/tower location details under Section 91 Cr.P.C. would violate the right to privacy of the police officials but the right of the accused under Article 21 of the Constitution of India in ensuring free and fair investigation/trial would prevail over the right to privacy of the police officials. Some extent of privacy can be breached in production of the said call details, as this would facilitate the learned trial Court in discovering the truth and rendering justice, which is fair to all stake holders."
Most rationally, while adding a rider, the Bench then propounds in para 14 observing explicitly that, "The denial of an adequate opportunity to the accused by non-production of the electronic record, which is admissible under Section 65-A and 65-B of the Indian Evidence Act in criminal trial, would amount to miscarriage of justice. Section 91 Cr.P.C. helps in facilitating a fair and just resolution to the case by ensuring that relevant evidence is made available to the Court for making informed decisions and arrive at a just and fair outcome. It enables the Court to secure important documentary evidence that may be in possession of individuals or organization and helps prevent the destruction, tampering or loss of crucial documents, thereby maintaining the integrity of the judicial process. The power under 91 Cr.P.C. must be exercised for production of such evidence, which would assist the Court in discovering the truth in the pursuit of justice. However, the right of privacy of the police officials cannot be breached at the ipse dixit of the accused. Before any such order for production of call details/tower location is passed, the accused is required to prove necessity and desirability of such evidence, which would be relevant to establish the guilt or innocence of the accused."
It is worth noting that the Bench notes in para 15 that, "As principles of natural justice are integral part of fair trial under Article 21 of the Constitution of India, 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."
It would be instructive to note that the Bench then hastens to add in para 16 noting that, "Keeping in view, the proposition of law as laid down by the Hon'ble Apex Court in the case of Suresh Kumar (supra), the instant petition as well as the application submitted by him under Section 91 Cr.P.C. stands partly allowed. The Trial Court is directed to summon the tower location of cell-phone Nos.7734044190 (Airtel) belonging to the witness Jitender Meena as well as tower location of cell-phone No.7851024844 (Jio) belonging to the witness Sonu Meena, for the period commencing on 10.03.2023 with effect from 1:40PM till 10:00PM. This Court further directed that calling the numbers and the numbers called from the said mobile phones shall be blacked out by the companies while furnishing such details."
Resultantly, the Bench then directs in para 17 holding that, "With the aforesaid observation and direction, the petition stands disposed of."
What's more, the Bench then directs in para 18 stating that, "Stay application and all other application(s), pending if any, also stand disposed of."
Finally, we see that the Bench then concludes by holding in para 19 that, "No order as to costs."
In summary, we thus see that the Jaipur Bench of the Rajasthan High Court has made it indubitably clear that the accused has the right to fair trial. It was also made crystal clear that in pursuance of this right, the accused has a right to seek call detail record under Section 91 CrPC. It was also made absolutely clear that in such cases, the right of accused to fair trial would undoubtedly prevail over the police right to privacy. But what cannot be glossed over is that here too it is made totally clear by the Bench that before any such order for the production of call details/tower location is passed, the accused would be required to first prove the necessity and so also the desirability of such evidence, which would be relevant to establish the guilt or innocence of the accused! There can be just no denying or disputing it!
