SC directs telcos to maintain data seized in criminal cases

THE COURT WAS HEARING A CASE FROM MAHARASHTRA RELATING TO ADMISSIBILITY OF ELECTRONIC EVIDENCE WHICH ITSELF STEMMED FROM AN ELECTION PETITION CHALLENGING THE ELECTION OF SHIV SENA CANDIDATE ARJUN PANDITRAO KHOTKAR TO THE MAHARASHTRA ASSEMBLY FROM THE JALNA CONSTITUENCY IN 2014

NEW DELHI: Cellular companies and internet service providers (ISPS) should maintain call data records (CDR) and other relevant data in a segregated and secure manner if a particular CDR or other record is seized during the investigation of a criminal case, the Supreme Court ordered on Tuesday in an order aimed at obviating difficulties arising due to non-availability of CDR and other data in criminal trials.

Parties to the criminal case can then summon such record at the stage of presenting defence evidence, or in the event such data is required to cross-examine a particular witness, the top court said.

“This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses (under which mobile companies operate), or under Section 67C of the Information Technology Act (which mandate central government to issue such directions)”, the bench headed by justice Rohinton Nariman said. The court noted that the Department of Telecommunication’s license conditions generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year.

But, if the police or other interested individuals fail to secure those records or secure the records but fail to secure the certificate (validating its authenticity) within the period of one year, the production of a postdated certificate would in all probability render the data unverifiable, the court said.

The court was hearing a case from Maharashtra relating to admissibility of electronic evidence which itself stemmed from an election petition challenging the election of Shiv Sena candidate Arjun Panditrao Khotkar to the Maharashtra assembly from the Jalna constituency in 2014.

The election petition was filed before the Bombay high court in 2014 by the defeated Congress candidate Kailash Kishanrao

Gorantyal. The case set up by Gorantyal was that Khotkar had filed his nomination papers after the stipulated time of 3 pm on September 27, 2014.

In order to buttress this argument, Gorantyal had sought to rely upon video-camera arrangements that were made both inside and outside the office of the returning officer. The high court, in March 2016, ordered the EC to produce the record of the election including the original video recordings. As per section 65B, such certificates from the concerned authorities are required, if evidence like CDS, and VCDS etc are sought to be produced as evidence. The court noted that Gorantyal had done everything in his power to obtain the requisite certificate from the authorities but no such certificate was forthcoming. Hence HC judgment cannot be faulted, the court ruled while imposing a ~2 lakh fine on Khotkar.