Justice A M Thipsay had on December 10 directed the trial court to examine nodal officers and IT experts of mobile service providers to ascertain if it was possible to retrieve CDRs which the ATS claim they have destroyed.
The order was passed on a petition filed by some of the accused in the case seeking production of CDRs which had been used by the ATS to secure their remand.
According to them, the CDRs were crucial to establish their innocence.
The accused approached the high court after the trial court rejected their application.
"Considering the relevance of the CDRs and their importance from the point of view of the accused it appears the trial court ought to have called for those documents.
The trial judge has not applied his mind. The refusal of the trial court to direct the nodal officers to file affidavits that the CDRs were not available was improper and not in accordance with law," Justice Thipsay said.
These observations have been made in the 57-page order which was made available on Thursday.
The order further states that the CDRs were certainly relevant and admissible in evidence and the accused should be given an opportunity to put forth their defence effectively.
"The trial judge has failed to comprehend the correct legal position with respect to the rights of the accused to have the documents summoned or produced before the court for the purpose of his defence. The concept of fairness would require such documents to be given to the accused," Justice Thipsay said.
The high court also felt the trial court's refusal of the application of the accused persons on the ground that the prosecution was not relying on the document as evidence was wrong.
"Stating that those documents were not relied upon by the prosecution was an irrelevant consideration. The ease with which the trial judge believed the claim of unavailability of the record with the ATS as well as with the mobile service provider companies is rather surprising," Justice Thipsay said.
The judge further said that the accused are facing a serious charge and there is possibility of them being held guilty and awarded death penalty.
"It is therefore essential that they (accused) get full and proper opportunity to defend themselves," the order said.
The court also rapped the conduct of the investigating agency and the prosecution for being "unfair" in opposing the application of the accused on grounds which were not justified in law.
"These documents had been collected by the prosecution in the course of investigation. Why did the prosecution not rely on it? Was the prosecution conceding that these documents would establishing the accused's innocence? What was the objection to produce the same?" Justice Thipsay asked.
"Was the prosecution suggesting that if anything in favour of the accused had been found as a result of investigation, they were entitled to hide it and would not even show it to the court? Is this the law of this land?" the order said.
ATS had earlier told the high court that it had only procured copies of the CDRs from the mobile service providers and had destroyed them as it was not being included as evidence in the chargesheet.
According to the accused, the ATS had earlier in 2006 while seeking their remands relied on these CDRs recovered from their mobile phones before their arrest but had not produced them in the chargesheet filed against them.
