2026:HHC:5853 THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.376 of 2025 Date of Decision: 05.03.2026 _______________________________________________________ Mrs. Bhavita Tandon …….Petitioner Versus State of Himachal Pradesh & another … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes. For the Petitioner : Mr. V.S.Chauhan, Senior Advocate with Mr. Arsh Chauhan, Advocate. For the Respondents: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General. _______________________________________________________ Sandeep Sharma, Judge(oral): Being aggrieved and dissatisfied with order dated 20.06.2025 (Annexure P-4) passed by learned Special Judge, Kullu, District Kullu, Himachal Pradesh in Cr.MP No.148 of 2025 (CIS Reg. No.420 of 2025), whereby an application under Section 94 of Bharatiya Nagarik Suraksha Sanhita, filed by the petitioner-accused (hereinafter referred to as the accused) for issuing of direction to the respondent-State to preserve “Call Record Details”(CDR) and “Pinpoint Call Location Data”( CLD) of the mobile phones of the trap team as well as independent witnesses came to be rejected, petitioner-accused has approached this Court in the instant 1Whether the reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:5853 proceedings filed under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, praying therein to set-aside aforesaid order and allow the application, as detailed hereinabove. 2. Precisely, the facts of the as emerge from the pleadings as well as other documents adduced on record by the respective parties, are that petitioner, who is an accused in FIR No.01 of 2025, dated 07.02.2025, under Section 7 of the Prevention of Corruption Act(hereinafter referred to as the Act), registered at police Station State Vigilance & Anti Corruption Bureau, Kullu, District Kullu, Himachal Pradesh, filed an application under Section 94 of the BNSS for preservation of Call Record Details Reports as well as Pinpoint Call Location Data of the mobile phones of trap team as well as independent witnesses dated 07.02.2025 between 11.00 AM to 12.55 PM, alleging therein that false and fabricated story has been concocted by the prosecution to link her in the alleged crime. 3. In nutshell, it came to be submitted at the behest of the accused that she and other co-accused were arrested on 07.02.2025 at 5.045 PM, 6.00 PM and 6.15 PM, respectively. However, status report filed by the Investigating Agency in main case, suggests that pre-trap proceedings were conducted and concluded between 12.00 noon to 12.50 PM on 07.02.2025. As per the accused, she was arrested by the police on 07.02.2025, at about 11.30 AM, hence the case projected by the prosecution does not stand at all and she has 3 2026:HHC:5853 been falsely roped in the present case. As per the prosecution, accused made a call to her fellow colleague i.e. co-accused Pankaj at 1.00 PM, thereby instructing him to take bribe from the complainant. It is alleged that though accused was arrested on 07.02.2025 at 5.45 PM, but her telephone was confiscated at 11.30 PM, if it is so, there was otherwise no occasion for her to make a call to co-accused, named hereinabove, at 1.00 PM. 4. In view of aforesaid inconsistencies, accused by way of application, as detailed hereinabove, filed an application under Section 94 of Bharatiya Nagarik Suraksha Sanhita specifically praying therein that Call Record Details Reports and Pinpoint Call Location Data of the mobile phones as well as independent witnesses dated 07.02.2025 between 11.00 AM to 12.55 PM be produced and preserved. She also prayed that location data of her own mobile phone be also preserved for the relevant period and details of the service providers for the SIM cards used by her and members of the trap team, as detailed in the application, be also preserved. 5. By way of reply to the application, afore prayer made on behalf of the petitioner-accused came to be vehemently opposed on the ground that data sought to be preserved may not be relevant for proper adjudication of the case at hand. Respondents further submitted that CDR sought to be preserved by the accused of the police officials will hamper the investigation and expose the source of 4 2026:HHC:5853 information, which is undesirable. It also came to be submitted at the behest of the respondent-State that enquiry of disproportionate assets of the accused is still pending with one of the Officers, whose CDR is also being sought to be preserved by the accused. Besides submitting that prima facie case is made out against the accused in FIR No.01 of 2025, dated 07.02.2025, registered with the police Station, SV & ACB, Kullu, respondents further submitted that case is still under investigation and since accused has been arrested in trap case, there is no requirement to preserve CDR and tower locations. 6. Respondents further submitted that pre-trap memo was prepared at Circuit House Kullu and post trap proceedings took place in the office of the Assistant Food Commissioner, Kullu i.e. accused and both these spots are at a distance of 200-300 meters and as such, tower location reports are not of much relevance. While submitting that pre-trap proceedings were concluded at 12.50 PM on 07.02.2025 and the post trap proceedings concluded at about 5.30 PM, respondents have admitted the factum with regard to arrest of the accused at about 5.40 PM. 7. Learned trial Court on the basis of the pleadings adduced on record by the respective parties, dismissed the application by observing in the order that merely on the basis assumptions and presumptions, prayer for preservation of CDRs and tower locations cannot be accepted. Learned trial Court, while deciding the 5 2026:HHC:5853 application, further concluded in the order laid challenge in the instant proceedings that by way of filing application, accused has attempted to do roving and fishing inquiry against the trap team members, which is not permissible. 8. I have heard learned counsel for the parties and gone through the record carefully. 9. Having head learned counsel for the parties and perused the material available on record, this Court finds that the precise allegation against the accused, who at the relevant time, was working as Assistant Food Commissioner, Kullu, is that she demanded bribe from the complainant, but instead of taking bribe, she directed her colleague namely, Pankaj on her telephonic call allegedly made at 1.00 PM, to receive money from the complainant. 10. Admittedly, accused herein never came to be caught red handed. Interestingly, Pankaj, named hereinabove, also did not receive money, if any, offered by the complainant, rather he instructed one Peon to receive money from the complainant and allegedly police apprehended that Peon red handed with the bribe allegedly demanded by the accused herein. 11. To prove case against the accused, prosecution has set up a case that at 1.00 PM on the date of alleged incident, she had made a call to co-accused Pankaj to receive bribe from the complainant, whereas defence of the accused is that once her mobile 6 2026:HHC:5853 phone was taken into custody at 11.30 AM, there was no occasion, if any, for her to make call to co-accused at 1.00 PM. 12. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while referring to seizure memo, whereupon accused has also signed, submitted that telephone in question was taken into custody during post trap proceeding i.e. after 4.30 PM. He further submitted that otherwise also CDR of the police officials, who were members of the trap team, cannot be shared with the accused for the reason that name of the source, who actually lodged the complaint against the accused and other co-accused, would be disclosed, which is otherwise not permissible. While referring to the application under Section 94 of BNSS filed at the behest of the accused, learned Additional Advocate General further submitted that no specific reason has been assigned that for what purpose CDR of each member of trap team is required. He further submitted that otherwise also disclosure of information as well as other CDR of police officials would violate their privacy and cause prejudice to the person whose call records is being demanded. 13. By now it is well settled that accused is required to be afforded fair opportunity to prove his/her innocence. Bare perusal of provisions contained under Section 94 BNSS, reveals that application under this provision of law can be made at any stage of trial and scope of aforesaid provision of law is very wide and it can neither be 7 2026:HHC:5853 restricted only to the documents on which the prosecution relies nor to the stage contemplated by Section 254 and 266 of BNSS. Section 94 empowers a Court to ensure production of any document or other material, "necessary or desirable", for the purpose of any investigation, inquiry, trial or other proceedings under BNSS, by issuing a summons or a written order to those in possession of such materials. If, Section 94 of BNSS is read in its entirety, it clearly reveals that sine qua non for an order under this Section is consideration of the Court that the production of the document/material concerned is desirable and necessary for the purposes of trial and as such, objection raised by learned Additional Advocate General with regard to competence of the court below to cause production of any document or any other material during the pendency of the trial, deserves outright rejection. 14. Moreover, issue with regard to the competence of the court to ensure production of any document or other material, "necessary or desirable", for the purpose of any investigation, inquiry, trial or other proceedings under BNSS, is no more res-integra, rather has been dealt with elaborately by this Court in its judgment dated 16.4.2018, passed in Cr.MMO No. 484 of 2017 (Ishwar Dass v. State of HP)., wherein this Court while interpreting the scope of Section 91 Cr.P.C( now section 94 of BNSS) has categorically held that provisions contained under Section 94 BNSS cast a duty upon 8 2026:HHC:5853 the court to cause production of document or material believed to be in possession of some other person, if it considers production of such document is necessary for adjudication of the case. It has been further held by this Court that court will not create evidence in favour of an accused or prosecution but, at the same time, it is bounden duty of the court to discover truth about allegations against the accused. Issuance of direction, if any, under Section 94 of BNSS, whereby court enjoys power to cause production of document or material believed to be in possession of some person, definitely cannot be considered to be creation of evidence in favour of the accused, who makes an application under Section 94 of BNSS. 15. This Court in the aforesaid judgment has held that necessity or desirability would have to be seen with reference to the stage when prayer is made for the production. If a document is necessary or desirable for the defence of the accused, question of invoking 94 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. Relevant paras of the aforesaid judgment are as follows:- 17. Section 91 pre-supposes that when a document is not produced, process may be initiated to compel production thereof. Any document or thing as envisaged under Section can be produced if it is found that the same is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code. First and the foremost requirement of the section is of the document being necessary or desirable. Necessity or desirability would have to be seen with reference to the stage when prayer is made for the production. If any document is necessary or desirable for the defence of the accused, question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. 9 2026:HHC:5853 When this section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under this section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in this Section. In so far as accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of his defence. 18. Reliance is placed upon judgment of Hon'ble Apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, wherein it has been held as under: “23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided. 24. On behalf of the accused a contention about production of documents relying upon Section 91 of the Code has also been made. Section 91 of the Code reads as under: "Summons to produce document or other thing.(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2)........................................................................... (3)..........................................................................." 25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or 10 2026:HHC:5853 other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. 26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI, Delhi[(2000) 5 SCC 679]. In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra's case (supra). The contentions based on Satish Mehra's case have been noticed in para 4 as under: "The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn. ((1996) 9 SCC 766) laying emphasis on the fact the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State ((1999) 49 DRJ 202). Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings. 11 2026:HHC:5853 27. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19. 28. We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry. 29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case.” 19. It is quite apparent from the aforesaid exposition of law that necessity and desirability of document sought to be produced with the assistance of the court is to be examined considering the stage when such prayer for summoning and production is made and party which makes such prayer, either police or the accused. But, definitely, application, if any, under Section 91 on the part of accused can be made at the stage of defence. 20. Ratio laid down in aforesaid judgment came to be reiterated in the recent judgment of Hon'ble Apex Court in M/s V.L.S. Finance 12 2026:HHC:5853 Ltd. v. S.P. Gupta and anr, Criminal Appeal No. 99 of 2016 decided on 5.2.2016, wherein it has been held as under: “43. Before we proceed to dwell upon the power of the Magistrate to grant permission for not pressing the application, we think it necessary to delve into legality of the direction issued by the High Court to the Magistrate to consider the documents filed by the accused persons along with the application preferred under Section 91 Cr.P.C. Section 91 Cr.P.C. reads as follows:- “Section 91. Summons to produce document or other thing.- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.” 44. The scope and ambit of the said provision was considered in State of Orissa v. Debendra Nath Padhi[17], wherein this Court has held thus:- “The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be 13 2026:HHC:5853 necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.” The aforesaid enunciation of law clearly states about the scope of Section 91 Cr.P.C. and we are in respectful agreement with the same.” 16. It is quite apparent from the aforesaid exposition of law that in criminal trial, prosecution has to be absolutely fair and impartial because main purpose of criminal trial is not to get an accused convicted, rather its object is to discover truth and punish the accused, if found guilty. Hon'ble Apex Court in V.K. Sasikala v. State (2012) 9 SCC 771, has held that the courts must ensure fairness of the investigative process so as to maintain the citizens’ rights under Articles 19 and 21 and also active role of the court in a criminal trial. Hon'ble Apex Court has further held that it is responsibility of the investigating agency as well as of Court to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It is also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be 14 2026:HHC:5853 entitled to under the scheme contemplated by Bharatiya Nagarik Suraksha Sanhita. Relevant paras of the aforesaid judgment are as under:- 217. Further, 94 empowers the court to summon production of any document or thing which the court considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where 94 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross- examination or the production of any document or other thing for which the court has to pass a reasoned order. 218. The liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law” shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused. 17. Hon’ble Apex Court in judgment referred to herein above has categorically ruled that certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. Very importantly, the Hon’ble Apex Court in the case referred herein above has held that absence of any claim on the part of the accused to the said 15 2026:HHC:5853 documents at any earlier point of time cannot have the effect of foreclosing such a right of the accused. Absence of such a claim, till the time when raised, can be understood and explained in several reasonable and acceptable ways. Difficulty or handicap in putting forward a defence would vary from person to person and there can be no uniform yardstick to measure such perceptions. 18. In the case at hand, the defence of the accused is that her mobile phone was confiscated at 11.30 AM on the date of alleged incident, as a result thereof, there was no occasion, if any, for her to make call to co-accused Pankaj at 1.00 PM. Since case of the prosecution is that accused made telephonic call to co-accused at 1.00 PM on the date of alleged incident and thereafter, co-accused further instructed his colleague i.e. co-accused to take money from the complainant, no prejudice shall be caused to the prosecution in case prayer made through application moved at the behest of the accused under Section 94 of BNSS for preservation of CDRs as well as pinpoint call location data is accepted, rather preservation of the same would help court below to adjudicate the case fairly and in effective manner. 19. As has been observed hereinabove, accused is required to give fair chance to prove his/her innocence, this Court is of the view that prayer made for preservation of CDR and pinpoint call location data cannot be rejected on the ground of mere technicalities, rather 16 2026:HHC:5853 court below having taken note of specific defence taken at the behest of the accused itself ought to have ordered for preservation of data. Since prosecution case is that mobile phone of the accused was confiscated or taken into custody during post-trap proceedings, which admittedly happened after 1.00 PM, it would be in the interest of the prosecution to preserve the data, especially to belie the defence taken by the accused that her telephone was confiscated/taken into possession at 11.30 AM. Since no material prejudice, if any, is likely to be caused to the prosecution on account of preservation of data, but having noticed its opposition to the very innocuous prayer, this Court can infer that prosecution is trying to hide something. Once with the preservation of data, as prayed for, truth would come to fore, this Court sees no reason to reject the prayer made on behalf of the petitioner for preservation of data. Since record with regard to call details is only preserved for two years, coupled with the fact that challan, if any, is yet to be filed in the competent court of law, prayer made on behalf of the petitioner-accused, who otherwise with the help and aid of CDR, sought to be preserved, wants to prove her innocence deserves to allowed. 20. Consequently, in view of the above, this Court finds merit in the present petition and accordingly, same is allowed. Impugned order dated 20.06.2025 (Annexure P-4) passed by learned Special Judge, Kullu, District Kullu, Himachal Pradesh in Cr.MP No.148 of 17 2026:HHC:5853 2025 (CIS Reg. No.420 of 2025) is quashed and set-aside, with a direction to the Investigating Agency to preserve the data, as detailed in para-7 of the application filed under Section 94 of BNSS by the accused. Pending applications, if any, also stand disposed of. (Sandeep Sharma), Judge March 05, 2026 (shankar)