Privacy can’t override need to preserve call records: Delhi HC

A trial court had initially ordered preservation of the CDRs but later withdrew the directive, terming it neither necessary nor desirable.

The Delhi High Court held that privacy concerns cannot override the need to preserve call data records (CDRs) when such evidence could help an accused establish innocence.

(Getty Images/iStockphoto)

Justice Anup Jairam Bhambani made the observation on Tuesday while hearing a plea by a man accused of stalking and sexually harassing a woman, seeking preservation of both his and the complainant’s CDRs from April 2020 to May 2023.

The case dates to May 2023, when Delhi Police booked the man under provisions of the IPC and IT Act based on a complaint that he had been stalking and harassing the woman since 2020 despite repeated warnings. The man, however, claimed they had been in a three-year relationship, which ended after her husband found out.

A trial court had initially ordered preservation of the CDRs but later withdrew the directive, terming it neither necessary nor desirable. The man then approached the high court, arguing that the records were essential to prove the nature of their relationship and counter what he called a “pre-planned conspiracy.”

Senior advocate N Hariharan contended the evidence was critical for a fair trial.

The complainant opposed the request, citing breach of privacy and possible stigma. The high court took a “measured approach,” directing preservation only of the man’s CDRs for the specified period.

“As for the apprehension that mere preservation of the CDRs… would amount to breach of the complainant’s privacy… such concerns cannot stand in the way of at least preserving what the accused claims to be exculpatory evidence,” the court held.

Justice Bhambani noted that CDRs can reveal frequency, initiation, timing, and duration of calls –details that may prove crucial in assessing interactions between parties.

The bench, in its 29-page judgement, also flagged a systemic gap: the absence of any formal mechanism for an accused to obtain exculpatory evidence. This, it said, allows investigating officers, who hold an advantage during the probe, to potentially withhold material helpful to the defence.

“Since the means for an accused to collect exculpatory evidence are woefully missing, investigating officers, who invariably have an upper-hand at least at the stage of investigation, fall into the temptation of keeping back evidence that may be helpful to the defence. It is not uncommon for an investigating agency to disclose only their side of the case,” the court said.