Delhi High Court allows application seeking preservation of call detail record; holds it relevant to determine charges of adultery

The Delhi High Court in its judgment dated May 8, 2023, held that the call records sought by the petitioner were only to preserve relevant evidence for trial, which perhaps could not have been done without the interference of the court as it vested with a third party.

It is relevant to mention that the high court was hearing a Criminal Revision Petition against a man, already a party to a divorce petition instituted on the grounds of adultery, and the application for seeking call details relevant to the incident alleged in the divorce petition was rejected by the courts below, on the ground that mere apprehension cannot allow preservation of private conversations.

Justice Swarana Kanta Sharma, while allowing the application of the petitioner, observed,

“The plea before this Court, as well as the learned Trial Court, was only to direct the third parties who are in possession of such crucial evidence, which the petitioner herself will not be in position to lay her hands on without assistance of the Court, to be preserved so that by the time the trial reaches the appropriate stage of production of evidence, the same is not destroyed…it is clarified that the records will not be handed over to any of the parties but will be preserved by the concerned authorities and will be produced before the concerned Courts only in case they are directed to do so at the appropriate stage of the Trial.”

Following were the records that were directed for preservation in the circumstances of the case:

1. Guest Register maintained by Post Card Hotel-Cuelim;
2. Invoices issued by Post Card Hotel in respect of stay of ‘Z’ and other guests with him;
3. Payment details of accommodation and mode of payment;
4. Emails exchanged between the Hotel and ‘Z’ in addition to the CCTV footage;
5. Phone records along with CDR of the Respondent, for the period between 27.10.2019 to 27.10.2022.

In the submissions before the high court, it was contended that the application was moved only out of caution so that the documents relevant for trial before the family judge were not tampered with or destroyed, more so, because the custodian was a third party. Reliance was placed on the observations made in Radeena DN v. Rahul K, 2020 SCC OnLine Ker 20535 in this regard.

It was further submitted that the courts below denied the application of the petitioner on hypertechnical grounds, stating the same as an attempt of “arm twisting and collecting evidence” while it was only to protect relevant evidence for trial.

It was also pointed out that Section 28 of the Domestic Violence Act allows the court to devise its own procedure in order to do justice between the parties and since the proceedings under Domestic Violence Act were quasi-judicial in nature, the provisions of both CPC and CrPC could be invoked.

Brief Background:

The present petition was moved under Section 397 read with 482 CrPC, 1973 challenging the order dated 17.02.2023 passed by ADJ, Saket Court, and the order dated 18.11.2022 passed by Magistrate in CC No. 39262 of 2019.

Petitioner no. 1 and the respondent entered into wedlock on 15.04.2012 as per Hindu rites and customs. The respondent abandoned the marriage in May 2017 following which the petitioner filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking orders under Sections 18,19,20,21 and 22 of the DV Act.

Petitioner no. 1 also filed a petition for divorce on the grounds of cruelty and depression against the respondent. Later, another petition was filed on the grounds of adultery on the discovery of certain chats of Ms. ‘X’ and the respondent. It was stated that the petitioner discovered this extramarital affair after ten years of marriage and filed evidence of the respondent’s lack of marital fidelity along with an additional affidavit before the Magistrate, as it constituted domestic violence. The petitioner came to know about the stay of the respondent with another woman at Postcard Hotel-Ceulim, TB Cunha Road, House No. 64, Cansaulim, Goa between 15.08.2020 to 20.08.2020. 

On 10.11.2022, the petitioner moved an application seeking preservation of call details of the respondent’s mobile phone which was dismissed by the Magistrate vide order dated 18.11.2022 and on appeal, was further dismissed by the ADJ Court vide order dated 17.02.2023.  

It was observed by the ADJ Court that mere apprehension could not be considered a ground for preserving the records sought, without intimation to the opposite party, and that the approach taken by the complainant reflected the collection of evidence against the respondent by twisting the court process.

Case Title: X & Y v. Z | Criminal Revision Petition 480 of 2023