Delhi High Court upholds trial court order to preserve Call Detail Records of CBI officials

The Delhi High Court recently refused to set aside a trial court's July 2023 order directing the preservation of the Call Detail Records (CDRs) and location data of Central Bureau of Investigation (CBI) officials involved in investigating a 2022 bribery case against two Municipal Corporation of Delhi (MCD) employees [CBI v. Neeraj Kumar]..Justice Chandra Dhari Singh observed that the trial court had merely ordered the preservation of the CDRs without passing any directions to give the accused immediate access to such data. This was to ensure that such data, which may potentially be of some evidentiary value at a later stage of the trial, is not automatically deleted by telecom service providers, the judge said. Therefore, he opined that there was no merit in the CBI's argument that the preservation of the CDRs may give the accused an unfair advantage by allowing them to conduct a fishing and roving inquiry into any possible loopholes in the CBI's investigation. "Since the CDRs and location data have only been ordered to be preserved and not disclosed, there is no basis for the (CBI's) apprehension that this would provide an undue advantage to the defence. The direction does not interfere with the prosecution's case but simply ensures that potentially relevant evidence is not lost due to automatic deletion. Therefore, the petitioner's contention regarding prejudice to the prosecution or an unfair advantage to the respondent is unfounded," the Court said. .The matter was tied to a complaint filed by one Ashok Kumar, who claimed that he was asked to pay ₹7,000 as a bribe by an MCD junior engineer named Neeraj Kumar and an MCD Beldar (person in charge of cleaning drains) named Sukhdev. The bribe was allegedly demanded in exchange for allowing Ashok Kumar to store construction materials outside his shop. A trap operation was conducted in June 2022, leading to the arrest of Sukhdev after he was caught accepting the bribe, allegedly on behalf of Neeraj Kumar. Kumar was also arrested and later granted bail.Kumar eventually filed an application under the Code of Criminal Procedure (CrPC) seeking copies of any documents that were not relied on by the CBI. Notably, he also sought the preservation of CDRs and location data of certain independent witnesses and the CBI officers who were part of the trap and verification team.On July 12, 2023, a special court dealing with corruption cases ordered the preservation of the CDRs and location data of the CBI officials and independent witnesses.This was challenged by the CBI before the Delhi High Court. .The CBI argued that the trial court's order could compromise their safety, risk exposing confidential sources, lead to the leak of sensitive data and compromise CBI probes, thereby jeopardizing the national interest and the agency's operational integrity. The CBI's counsel further argued that it would also violate the right to privacy. Moreover, the central agency asserted that the accused person is expected to either present a truthful version of events or remain silent in his defence, rather than fabricate a defence after reviewing the prosecution's documents..The accused MCD engineer, Neeraj Kumar, countered that he had only sought to ensure that the CDR/location data was not automatically deleted in case it may be required in future during the evidence stage of the trial. He argued that he is not seeking to rely on this data at the stage of framing charges. He added that the CBI's petition before the High Court was not maintainable since it invoked Section 397 (revision petition) of CrPC, which cannot be filed against interlocutory or interim orders. The July 2023 order under challenge was only an interlocutory order, he pointed out. .The Court found merit in these arguments by Neeraj Kumar and held that the Section 397of CrPC plea was not maintainable. It noted that the CBI had also invoked Section 482 of the CrPC (inherent powers of High Court to do complete justice) but found that the CBI's case could not be sustained under this provision either. "The present petition does not disclose any exceptional circumstances where the impugned order leads to an abuse of process or results in a miscarriage of justice," the Court reasoned before dismissing the CBI's plea. .However, the Court also asked the trial judge to ensure that no sensitive information, which is part of the data, is leaked or disclosed in a manner than could compromise CBI investigation or the security of CBI officers. .The CBI was represented by Special Public Prosecutor Ravi Sharma along with advocates Swapnil Choudhary, Ihann Bhardwaj, Sagar and Madhulika Raj Sharma.The respondent Neeraj Kumar was represented by advocate Tushar Agarwal assisted by advocates Naveen Kumar, Arun Kumar, Abhishek Mahal and Tripti Roy. .[Read Order]