The Bombay high court on Monday told the trial court that if it comes to the conclusion that the anti-terrorism squad (ATS) is in possession of call records that it claims to have destroyed, the court can consider issuing a search warrant to locate the relevant records.
The court passed the order in view of the controversy surrounding the destroyed call data records (CDR) in the 7/11 serial train blasts case. It was hearing an application by 13 alleged SIMI members facing trial in the case, challenging the order of a special MCOCA court that rejected their plea seeking the examination of three police officers and the production of the CDRs that the ATS claimed to have used to secure their remand.
The court has directed the trial court to summon police inspector Sunil Wadke (attached to the technical unit of the ATS) and the then investigating officer Sadashiv Patil for examining them regarding their affidavits that had justified the action of destroying the records.
The court has also granted liberty to the defence to examine the nodal officers and the information technology officers of the mobile service providers. It said the trial court can see whether the required data can be retrieved by taking assistance of an expert in the IT field.
The high court stated that the trial court should grant an opportunity to the accused as well as the prosecution to examine and cross examine witnesses. Justice
Thipsay said that after considering the evidence of Wadke and Patil, the trial court may consider the plea of the accused to issue search warrant for searching and seizing the relevant documents.
“Take all reasonable steps to ascertain whether CDRs can be made available and be brought on record,” justice Thipsay said.
The high court had earlier expressed its doubt on whether the state has actually destroyed the records as claimed by them.
“I have to remove the doubt on whether the documents are there and you (state) are trying to hide it,” justice Thipsay had said during an earlier hearing.
Advocate General Darius Khambata had submitted that the accused are free to retrieve the records from the telecom companies and the state government would be happy to cooperate.