NEW DELHI: A Delhi court has dismissed an application by JNU student and Pinjra Tod member Natasha Narwal for preserving mobile numbers, customer application forms and call detail records (CDRs) of witnesses, including police officials, in the conspiracy case related to the north-east Delhi riots last year.
Additional Sessions Judge Amitabh Rawat said Narwal seemed to be doing a 'fishing and roving' enquiry as she has sought "a wholesome CDRs" of the witnesses including protected witnesses for a period of many months and it was not for a specific instance or a date and with certainty.
The court said privacy was also an issue. It said there were various issues of safety and security of police officials and their informers which has to be accounted for while dealing with such an application.
"In the opinion of the court, the application under consideration and particularly its prayer is too vague. What is not permissible under section 91 (summons to produce document or other thing) CrPC is a fishing and roving inquiry and the applicant (Narwal) seems to be doing that On the question of desirability and the relevancy of calling of the preservation of mobile calls record of witnesses, the exact reason and specific witness, with necessary details, has to be specified.
"The applicant...has only made a submission that she has 'reasons to believe' that 'some' witnesses were not present at the sites indicated by them or they had visited the office of the investigating agency prior to their recording of statement. Thus, the applicant is not certain about her submissions but only has reasons to believe. Said submissions is ambiguous," the court said in its order passed on December 23.
It further said the statement in the application that "necessity to confront witnesses with their CDRs can arise pursuant to the manner in which they depose, when they are so summoned by the court, which fact may take place many years from now" was also too vague.
The court said: "The powers under section 91 CrPC cannot be exercised on assumptions and presumptions. The counsel for applicant has prayed for a wholesome CDRs records of the witnesses including protected witnesses for a period of many months from December till May/ June / July or till the recording of the statement. It is not for a specific instance or a date and with certainty. Privacy is also an issue."
In fact, during arguments, counsel had argued that the records be preserved and whether to call it or not at the time of evidence, will be seen later. In the opinion of the court, it is a fishing and roving enquiry which is not permissible.
It said it must also be remembered that the investigation in the case was still in progress and dismissed the application saying it was without merits.
The application had sought preservation of call detail records of 26 witnesses, including protected witnesses and police officials, from December 2019 to April 2020, and from there till date of recording of their statements.
The application, moved through advocate Adit S Pujari, claimed that there were reasons to believe that the witnesses were not present at the sites of the protests as indicated in their statements.
It further alleged that the witnesses were called to the Special Cell police station several times prior to the actual date of recording of their statements.
The court said there were more than 1,300 witnesses enlisted, as per the charge sheet, by the prosecution, including forensic lab officials and even the Judicial Officers.
It added the prayer of the application did not make any distinction between the witnesses and also asked for preservation record for months altogether.
However, in the convenience note filed subsequently, the counsel for the applicant (Narwal) had almost changed his prayer to seeking the preservation of call detail records of 26 witnesses including protected witnesses and police officials.
During the hearing, Pujari said at the present moment he was only seeking preservation of the records while leaving the issue of supply of such records at a later stage.
He had further said the CDRs were vital for the determination of the truth to the case of the prosecution, which was allegedly relying on uncorroborated statement of witnesses.
Pujari had sought an urgent hearing on the application saying that the CDRs are dissipated after 12 months by the mobile service providers.
He said that either the police be directed to place on record the documents or the court may direct the service provider to preserve the CDRs after the investigating agency placed on record the mobile numbers of all the witnesses.
Special Public Prosecutor Amit Prasad, appearing for the police, opposed the application saying it was vague and did not place on record any specific facts.
Prasad further said the prayers sought in the application, if allowed, were likely to materially affect the privacy of the witnesses and simultaneously affect the autonomy of the investigating agency.
Communal violence had broken out in north-east Delhi on February 24 last year after clashes between the Citizenship (Amendment) Act supporters and protesters spiralled out of control leaving at least 53 people dead and around 200 injured.