2012 (12) TMI 1163 - HC - Indian Laws

Summary

Issues Involved:
1. Issuance of witness summons for defence witnesses.
2. Production of Call Data Records (CDRs) by the prosecution.
3. Rejection of the application for issuance of a search warrant to retrieve CDRs.
4. Examination of Nodal Officers and the retrieval of CDRs from telecom companies.

Summary:

1. Issuance of Witness Summons for Defence Witnesses:
The appellants, accused in the MCOC Special Case No. 21 of 2006, made an application (Exhibit 2891) for witness summons to 79 persons, including Nodal Officers of telecom companies, to examine them as defence witnesses. Despite objections from the prosecution, summonses were issued to some witnesses. However, the trial court later declined to issue summonses to certain witnesses (Sr. Nos. 63 to 66), leading to an appeal which was already decided.

2. Production of Call Data Records (CDRs) by the Prosecution:
During the investigation, the prosecution had claimed to have obtained CDRs of the accused's cell phones. The appellants repeatedly requested these CDRs, arguing that they would establish their innocence. The trial court, however, did not order the prosecution to produce the CDRs, citing that they were not relied upon by the prosecution.

3. Rejection of Application for Issuance of a Search Warrant:
When the stage for defence evidence arrived, the appellants renewed their request for CDRs. The prosecution objected, and the trial court summoned Mr. Rakesh Maria, Head of ATS, who expressed his inability to produce the CDRs. The appellants then filed an application (Exhibit 2919) for a search warrant to retrieve the CDRs, which was rejected by the trial court. This led to Criminal Appeal No. 973 of 2012, where the appellants sought to quash the rejection order and direct the production of original CDRs.

4. Examination of Nodal Officers and Retrieval of CDRs:
The appellants also cited Nodal Officers from telecom companies as defence witnesses. Some officers appeared but claimed the relevant CDRs were not available as data is stored only for one year. The trial court refused to compel the officers to file affidavits supporting their claims. Aggrieved, the appellants filed Criminal Appeal No. 992 of 2012, seeking directions for the Nodal Officers to retrieve and produce the CDRs.

Judgment:
The High Court allowed the appeals partly, setting aside the impugned orders. The trial court was directed to:
1. Permit the defence to examine the Nodal Officers and/or Information Technology Officers of the telecom companies.
2. Consider whether the required data can be retrieved with the help of experts and allow such evidence if relevant and admissible.
3. Summon PI Sunil Wadke and Investigating Officer Sadashiv Patil to examine them regarding their affidavits.
4. Reconsider the issuance of a search warrant based on the new evidence.

The trial court was instructed to proceed expeditiously, ensuring the appellants receive a fair trial.