NEUTRAL CITATION NO.

2023:DHC:3222

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 01.05.2023
Pronounced on: 08.05.2023

+ CRL.REV.P.480/2023, CRL.M.A.11424/2023 & CRL.M.A.

11579/2023
‘X’ & ‘Y’ ..... Petitioners
Through: Mr. Prosenjeet Banerjee, Ms.
Shreya Singhal, Ms.Pranaya
Sahay and Ms. Sudeshna
Singh, Advocates alongwith
petitioners
versus
‘Z’ .... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.

1. The instant petition under Section 397 read with Section 482 of
the Code of Criminal Procedure, 1973 has been filed by the petitioners
seeking setting aside of order dated 17.02.2023 passed by learned
Additional Sessions Judge, South District, Saket Courts, New Delhi in
CA No. 24 of 2023 titled “X & Y v. Z” (name withheld) and order
dated 18.11.2022 passed by learned Magistrate in CC No. 39262 of
2019.

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 1 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

2. Vide an urgent application seeking ex-parte production and

preservation of the documents, the petitioner no. 1 has sought the
production and preservation of following records:
“a. Guest Register maintained by Post Card Hotel- Cuelim
in respect of the Hotel stay of ‘Z’(name withheld) and any
other person along with him along with all
annexures/documents required from the guests including and
not limited to Copy of ID proofs, Covid-19 vaccination
certificate, etc. of the guests retained by the Post Card Hotel-
both physical as well as electronic documents/data.
b. Invoices issued by Post Card Hotel in respect of the hotel
stay of ‘Z’ (name withheld) and other guests with him
including of the room charge and other ancillary charges
such as room service, activities, excursions, dining charges
at the hotel restaurant and any other additional services
availed during the stay-both physical documents as well as
electronic documents/data.
c. Payment details of the accommodation and mode of
payment for the same-both physical documents as well as
electronic documents/data.
d. Emails exchanged between the Post Card Hotel and ‘Z’
(name withheld) and between the Post Card Hotel and
another guest in respect of the booking that includes ‘Z’
(name withheld)-both physical documents as well as
electronic documents/ data.
e. CCTV footage of the check-in/check-out area, if
available.
f. Phone records along with CDR of the Respondent (mobile
phone number +91 98******31) (number withheld in this
order) for the past 3 years, i.e., for the period between
27.10.2019 to 27.10.2022, call records of the with tower
proximity...”

3. Brief facts leading to filing of the present petition and the urgent
application seeking above-mentioned reliefs are that the petitioner no.1
and respondent were married on 15.04.2012 as per Hindu rites and

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 2 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

customs. During the course of marriage, disputes arose to the extent

that allegations were levelled by the petitioner against the respondent
and it is alleged that the respondent abandoned the marriage of the
petitioner in May, 2017. However, since parties could not reconcile
their differences, the petitioner no.1 had filed a complaint under Section
12 of Protection of Women from Domestic Violence Act, 2005 (‘DV
Act’) on 21.11.2019 against the respondent seeking protection orders
under Sections 18, 19, 20, 21 and 22 of the DV Act wherein pleadings
are complete and case is listed for arguments for grant of interim relief
sought by the petitioner no.1. Petitioner no.1 also filed a petition
seeking divorce on the grounds of cruelty and depression. It is stated
that in July, 2021, petitioner no.1 had discovered an old phone and
chats exchanged between the respondent and one Ms. ‘X’ relating back
to the period when the parties were newly wedded. Thereafter, she filed
another petitioner for divorce on ground of adultery under Section
13(1)(1) of Hindu Marriage Act in December, 2021 which is pending
before the learned Family Court, New Delhi. It is stated that the
petitioner discovered this extra marital affair after ten years of
marriage, and she filed evidence of respondent’s lack of marital fidelity
alongwith additional affidavit dated 22.12.2021 before the learned
Magistrate as it constituted domestic violence. It is stated that the
petitioner no.1 had come to know that the respondent had stayed with
another women at Postcard Hotel-Ceulim, T.B. Cunha Road, House
No.64, Cansaulim, Goa around 15.08.2020 to 20.08.2020. On
10.11.2022, she moved an application seeking call detail records of the
respondent’s mobile phone number with tower proximity for a period

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 3 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

between 27.10.2019 to 27.10.2022. On 18.11.2022, the learned

Magistrate had dismissed the application under Order XI Rule 12 and
14 of the Civil Procedure Code on the ground that notice of the same
has to be served to the respondent to decide this application. The order
was challenged before learned ASJ who vide order dated 17.02.2023
dismissed the appeal.
4. It is now argued that the Courts below had committed an error in
dismissing the application for preservation and production of the
relevant evidence on hyper-technical grounds in arbitrary manner and
contrary to settled principles of law. It is also argued that the relevant
evidence may be destroyed with time and if the evidence is lost, it will
amount to miscarriage of justice. It is also stated that the courts below
have denied such request and has termed it as arm twisting and
collecting evidence. It is also stated that learned ASJ supplied his own
reasons for dismissal which are legally untenable as it held that the
application was not maintainable before the learned Magistrate. It is
stated that the learned ASJ has taken a hyper technical view while
dismissing the application which is contrary to settled principles of law.
Learned counsel points out that under Section 28 of D.V. Act, the Court
can devise its own procedure in order to do justice between the parties
and since the proceeding under DV Act are quasi civil in nature, the
provisions of both CPC and Cr.P.C., 1973 can be invoked. It is
therefore stated that since the learned ASJ did not deal with ground of
challenge raised before him effectively and has sidestepped the issue at
hand, the order be set aside. It is also argued that the relief sought in the
application can be sought on an ex-parte basis only and if notice is

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 4 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

issued to the respondent, the evidence may be destroyed. It is stated that

the learned Magistrate could have formulated its own procedure under
Section 28 of DV Act to reach just decision of the case. It is stated that
the learned Magistrate failed to appreciate that an application seeking
production and discovery under Order XI of CPC can be filed at any
stage during pendency of the suit. In this regard, my attention has been
drawn to the case of Union of India v. Imbrahim Uddin (2012) 8 SCC
148. It is stated that the petitioner has no objection if notice of the
application is issued to the respondent however, in the interregnum
while the application is being decided by the learned Magistrate, the
custodian of the documentary evidence being a third party be directed
to preserve the same by an ex-parte order so that the same be not
destroyed or tampered with, rendering the application infructuous. It is
stated that it is crucial since the custodian of such documents is not a
party before the lis and there is a high possibility that the documentary
evidence may be lost or tampered with. Petitioner states that she does
not wish to cast aspersions against anyone and the application has been
moved out of caution so that the documents are preserved for scrutiny
in the interest of justice and the original documentary evidence is
produced as such without tempering. It is also argued that the learned
MM has incorrectly held that the relief sought by the petitioner is on a
mere apprehension. It is stated that it is not mere apprehension of the
petitioner but only after the petitioner had come to know the name of
hotel and duration of the stay etc. that she had moved this application.
5. I have heard arguments addressed by learned counsel for
petitioners and have gone through the material on record.

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 5 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

6. Section 28(2) of the Protection of Women from Domestic

Violence Act, 2005 provides as under:
“...(2) Nothing in sub-section (1) shall prevent the court
from laying down its own procedure for disposal of an
application under section 12 or under sub-section (2) of
section 23.”

7. The learned ASJ while dismissing the application filed by

petitioner herein, vide order dated 17.02.2023, had observed as under:
“6. After hearing the arguments and considering the
submissions, Ld. Trial Court dismissed the said application
vide impugned order. Relevant portion thereof is being
reproduced below for ready reference:-
"The complainant has merely stated that she has come to
know about respondents stay, however, she has not
disclosed the source of information. More so, mere
apprehensions on part of the complainant/applicant
cannot be considered a ground for preserving the above
records without intimation to the opposite parry. It
appears that vide the present application, the applicant/
complainant is trying to arm twist the Court to collect the
evidence on her behalf against the respondent. The
present matter is pending at the stage of interim
arguments and not even at the stage of evidence. In view
thereof. the Court is not inclined to allow the present
application and grant the relief as prayed for. Application
is accordingly disposed of"
7. The application before Ld. Trial Court was filed under
Order XI Rules 12 and 14 of CPC. Order XI Rule 12 CPC
provides as under:-
12. Application for discovery of documents.- Any party
may, without filing any affidavit, apply to the Court for an
order directing any other party to any suit to make
discovery on oath of the documents wh1ch are or have
been in his possession or power, relating to any maller in
question therein. On the hearing of such application. The
Court may either refuse or adjourn the same, if satisfied
that such discovery is not necessary, or not necessary at

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 6 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

that stage of the suit, or make st.ch order, either generally

or limi1ed to certain classes of documents, as may in its
discretion be though fit:
Provided that discovery shall not be ordered when and so
far as the Court shall be opinion that ll is not necessary
either for disposing fairly of the suit or for saving costs.

8. Order XI Rule 14 provides as under:

14. Production of documents. lt shall be lawful for the
Court, at any time during the pendency of any suit, to
order the production by any party thereto, upon oath of
such of the documents in his possession or power, relating
to any matter in question in such suit, as the Court shall
think right; and the Court may deal w:th such documents,
when produced, in such manner as shall appear
9. Perusal of above reveals that these two rules are
applicable to parties to a suit and not to third persons. In
other words, one party to a suit can make an application
seeking discovery/production of documents from the other
party to the suit. In this case admittedly apart from the
appellants herein, only ‘Z’ (name withheld) (respondent) is a
party to the proceedings before Ld. Trial Court. The relief of
discovery/production of documents is being sought not from
‘Z’ (name withheld) but from a hotel named Postcard-
Cuelim situated in Goa. That hotel is not a party to the
proceedings, so in these circumstances, this Court is unable
to see as to how the relief pertaining to preservation and
production of record in question could have been sought
under Order XI Rule 12 and 14 of CPC from it.
Accordingly, it is held that the application filed before Ld.
Magistrate was not maintainable in law and same has been
rightly dismissed by way of impugned order albeit for
different reasons As the relief sought could not have been
granted under application moved on behalf of appellant, this
Court is refraining from dealing with the grounds taken by
appellants before this Court to challenge the impugned order
as that will not serve any purpose...”

8. During the course of arguments, to contend that proceedings

under the DV Act are quasi civil in nature and that in certain

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 7 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

circumstances, provisions of Civil Procedure Code, 1908 can apply in

such cases, learned counsel for petitioner had placed reliance on the
decision of Kunapareddy v. Kunapareddy Swarna Kumari (2016) 11
SCC 774 whereby no infirmity was found in an order allowing
amendments under Order VI Rule 16 of CPC. Some of the relevant
observations of Hon’ble Apex Court are as under:

“12. In fact, the very purpose of enacting the DV Act was to

provide for a remedy which is an amalgamation of civil
rights of the complainant i.e. aggrieved person. Intention
was to protect women against violence of any kind,
especially that occurring within the family as the civil law
does not address this phenomenon in its entirety. It is treated
as an offence under Section 498-A of the Penal Code, 1860.
The purpose of enacting the law was to provide a remedy in
the civil law for the protection of women from being victims
of domestic violence and to prevent the occurrence of
domestic violence in the society. It is for this reason, that the
scheme of the Act provides that in the first instance, the
order that would be passed by the Magistrate, on a complaint
by the aggrieved person, would be of a civil nature and if the
said order is violated, it assumes the character of
criminality...”

9. As far as admissibility of relevant evidence in matrimonial cases

is concerned, reliance was placed by learned counsel for petitioner on
Deepti Kapur v. Kunal Julka 2020 SCC OnLine Del 672 whereby a
Co-ordinate Bench of this Court had opined as under:
“36. The sequitur to the aforesaid constitutional and legal
landscape is that:
(a) The settled rule, purely from the standpoint of the law of
evidence, is that evidence is admissible so long as it is
relevant, regardless of how it is collected. Digressing from
this settled position would have wide ramifications and
consequences; and would be a serious hindrance to judicial

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 8 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

proceedings across the board, in several foreseeable and

unforeseeable ways. On the other hand, the possible misuse
of this rule of evidence, particularly in the context of the
right to privacy, can be addressed by prudent exercise of
judicial discretion by a court not at the time
of receiving evidence but at the time of using evidence at the
stage of adjudication;
(b) Merely admitting evidence on the record is not proof of a
fact-in-issue or a relevant fact; admitting evidence is not
even reliance by the court on such evidence; admitting
evidence is mere inclusion of evidence in the record, to be
assessed on a comprehensive set of factors, parameters and
aspects, in the discretion of the court;
(c) The limited threshold test of ‘relevance’ ensures that the
right of a party to bring evidence to court, and thereby to a
fair trial, is not defeated. What weight is to be given to
evidence so brought-in, and whether or not the court
ultimately relies upon such evidence for proof of a fact-in-
issue or a relevant fact, is always in the discretion of the
court. This, a court may do on other considerations,
including considerations of justice and fair play. We must be
clear that the test of admissibility is only a ‘threshold test’,
which opens the doors of the court, as it were, so that
relevant evidence brought by a litigating party is permitted
entry into the court records. It does not bind the court to treat
such evidence as proof of a fact-in-issue or relevant fact.
Section 14 of the Family Courts Act makes this threshold
test even less stringent, in that the Family Court may receive
evidence, whether or not it would otherwise be relevant or
admissible under the Evidence Act, provided in its opinion
such evidence would assist it in effectively dealing with the
dispute...”

10. Learned counsel for petitioner had also argued that under similar
circumstances, Hon’ble High Court of Kerala in Radeena DN v. Rahul
K 2020 SCC OnLine Ker 20535 had allowed an application seeking
production of phone records of opposite party where adultery was in
question, with the following observations:

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 9 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

“...Coming to the facts of the case, the allegation of the

husband is that the wife had been indulging in adulterous
relationship and that amounted to cruelty also. If the
husband wants to make out a case of adultery or cruelty
from telephone conversations, conduct and other behavioral
patterns, it would not be in the interest of justice to prevent
such evidence being brought before the Family Court. The
telephonic call details and the mobile tower details are
matters of evidence which the husband intends to adduce in
his attempt to prove his allegations. Whether or not the said
evidence have a bearing is not for the Court to consider at
this juncture. A document in the possession of another
person can be brought in evidence by recourse to the
provisions contained in Order 16 of the CPC. When such a
procedure has been availed of by the husband, it cannot be
said that the summoning of a document is perverse or
illegal...”

11. It was also argued that where production of documents such as

hotel records were sought in order to establish a claim for adultery,
Hon’ble High Court of Telangana in K. Srinivasa Rao v. N. Naga
Kamala Rani Civil Revision Petition No. 2385/2018 had allowed the
same by expressing as under:

“...Further, when the petitioner-husband specifically sought

divorce on the ground of adultery, the subject documents
may be crucial to establish the alleged adulterous
relationship between the first respondent-wife and the
second respondent. Though photocopies seem to have been
procured by the petitioner- husband of some of the
incriminating documents, the original record summoned
from the hotels concerned would be important primary
evidence. Therefore, the learned Family Court Judge ought
not to have brushed aside the plea of the petitioner-husband
for summoning of these documents despite his power to do
so under Order 16 Rule 6 CPC...”

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 10 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

12. In the present case, the record which is sought to be produced

and preserved are pursuant to certain allegations which have been
levelled against her spouse on the ground of adultery. At this stage the
complainant/petitioner is not asking for the supply of those documents
to herself or the documents being filed before the Court for the purpose
of adjudication. 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 are not destroyed. This Court therefore, in the facts
and circumstances of the case, directs the preservation of following
records:
a. Guest Register maintained by Post Card Hotel-Cuelim in
respect of the Hotel stay of ‘Z’ (name withheld) and any other
person along with him along with all annexures/documents
required from the guests including and not limited to Copy of
ID proofs, Covid-19 vaccination certificate, etc. of the guests
retained by the Post Card Hotel- both physical as well as
electronic documents/data.
b. Invoices issued by Post Card Hotel in respect of the hotel stay
of ‘Z’ (name withheld) and other guests with him including
of the room charge and other ancillary charges such as room
service, activities, excursions, dining charges at the hotel
restaurant and any other additional services availed during

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 11 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

the stay-both physical documents as well as electronic

documents/data.
c. Payment details of the accommodation and mode of payment
for the same-both physical documents as well as electronic
documents/data.
d. Emails exchanged between the Post Card Hotel and ‘Z’
(name withheld) and between the Post Card Hotel and
another guest in respect of the booking that includes ‘Z’
(name withheld) both physical documents as well as
electronic documents/ data.
e. CCTV footage of the check-in/check-out area, if available.
f. Phone records along with CDR of the Respondent (mobile
phone number +91 98******31) (number withheld in this
order) for the past 3 years, i.e., for the period between
27.10.2019 to 27.10.2022, with tower proximity.
13. However, it is clarified that the records will not be handed
over to any of the parties but will be preserved by the concerned
persons/authorities and will be produced before the concerned
Courts only in case they are directed to do so at the appropriate
stage of trial. This Court makes it clear that this order is being
passed only for the purpose of preservation of the record so that
the same is not tampered or destroyed with passage of time when
the appropriate stage of trial reaches and in case the learned Trial
Court comes to a conclusion that the same can be produced in the
Court by either of the parties, this order will not be construed to
have conferred any right to them to do so. This Court also is not

Signature Not Verified

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By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52
 NEUTRAL CITATION NO. 2023:DHC:3222

giving any finding on the genuineness or anything related to the record

being used as evidence or its evidentiary value before the concerned
Court of law. The concerned Court will issue notice of the application
moved by the concerned parties for production of these documents and
record in the Trial Court for any purpose and after hearing the other
side. The Court will decide the application for production of such
documents on its merits as per law.
14. Considering the sensitive nature of the present case, the Registry
is directed to mask the names of petitioner no. 1 as ‘X’, petitioner no. 2
as ‘Y’ and respondent as ‘Z’ in the records of the case.
15. A copy of this judgment be forwarded to the concerned Trial
Court for ensuring compliance of the order. Since phone numbers and
the names of the parties have been masked/withheld in this judgment,
the original prayer of this application will be annexed and sent to the
concerned authorities/persons by the learned Trial Court to ensure
effective compliance.
16. Accordingly, the present petition, alongwith pending
applications, stands disposed of in above terms.
17. The judgment be uploaded on the website forthwith

SWARANA KANTA SHARMA, J

MAY 8, 2023/ns

Signature Not Verified

Digitally Signed CRL.REV.P. 480/2023 Page 13 of 13
By:ZEENAT PRAVEEN
Signing Date:10.05.2023
20:19:52