Chotu @ Rajvendra vs The State Of Madhya Pradesh
2023 Latest Caselaw 9660 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                        BEFORE
                                        HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                                  ON THE 27 th OF JUNE, 2023
                                          MISC. CRIMINAL CASE No. 26779 of 2023

                           BETWEEN:-
                           CHOTU @ RAJVENDRA S/O BHUPENDRA SINGH LODHI,
                           AGED ABOUT 32 YEARS, OCCUPATION: FARMER R/O
                           VILLAGE CHOURAI POLICE STATION DAMOH DEHAT
                           DISTRICT JABALPUR (MADHYA PRADESH)

                                                                                            .....APPLICANT
                           (BY SHRI SOURABH SINGH THAKUR - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH THROUGH POLICE
                           STATION HOHATA DISTRICT DAMOH (MADHYA
                           PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI VINOD MISHRA - PANEL LAWYER)

                                 This application coming on for admission this day, the court passed the
                           following:
                                                               ORDER

This petition under Section 482, Cr. P.C invoking the inherent power of this Court has been filed seeking quashment of the order dated 1.6.2023 passed in S.C No. 4/2023 by Special Judge, N.D.P.S Act, district Damoh.

2. Learned counsel for the applicant contends that an offence vide Crime No. 464/2022 has been registered against the present applicant and others on allegation that they were carrying 100 k.g. Ganja in their Pick-Up vehicle and the said vehicle was stopped and upon search thereof the contrabands were seized. Counsel contends that in the present case, the applicant has been falsely Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55

implicated, inasmuch as, the applicant was not sitting in the vehicle from which the Ganja was seized. It is contended by the counsel that the wife of the applicant, even submitted an application highlighting this fact before the authority. It is further submitted that the Police has concocted a false story whereas if the mobile location of the officials of the police who carried out search and arrest is ascertained the same would reveal that they were not even present at the place where the vehicle was allegedly stopped and searched for the contraband. The counsel, therefore, submits that in view of the aforesaid circumstances, an application before the Trial Court was moved under Section 91, Cr.P.C and it was prayed by the applicant that the Mobile Tower location,

G.P.S location and call details of all the police officials who were detailed in paragraph 7 of the application be called along with the certificate in terms of Section 65B of Evidence Act, 1872. The said application has been rejected by the Trial Court.

3. Counsel for the applicant contends that the order impugned passed by the Trial Court is unsustainable, inasmuch as, in order to find truth the application under Section 91 Cr.P.C ought to have been allowed. It is contended by the counsel the Apex Court in the case of Suresh Kumar v. Union of India [Criminal Appeal No. 1234 of 2014 (Arising out of SLP (Cri.) No. 1477 OF 2014) decided on 6.5.2014] has held that the person has every right to summon whatever is relevant and admissible in his defence including electronic record relevant to find out the location of the officers effecting the arrest.

4. It is contended by the counsel that the Apex Court in the said case directed the trial Court to summon the record pertaining to call details of the officers who effected the arrest. The counsel also contends that the Division Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55

Bench of this Court in Special Police Establishment v. Umesh Tiwari and another M.Cr.C No. 60404/2021 has held that it is a right of the accused to invoke Section 91 Cr.P.C and the Court can summon material if the same is not part of the charge-sheet. It is contended by the counsel that the provisions of Section 91 is available to even an accused as laid down by the Division Bench in Umesh Tiwari (Supra). The counsel has also placed reliance on the decision of the High Court of Himachal Pradesh in Ishwar Dass vs. The State of Himachal Pradesh [(2018) 2 ILR (HP) 530]. Learned counsel for the petitioner submits that the impugned order dated 1.6.2023 is thus liable to be set aside and the application filed by the applicant under Section 91 Cr.P.C deserves to be allowed.

5. Per contra the counsel for the State submits that the present application under Section 482 Cr.P.C is grossly misconceived and is an attempt by the applicant to unnecessary drag the proceedings. It is contended by the counsel that the applicant is making a futile attempt to demonstrate that they were not present at the place of the incident. It is contended by the counsel that the past antecedents of the applicant reflect that as many as four cases under the different provisions of Indian Penal Code were registered and pending trial. It is contended by the counsel that the Court below while observing that the applicant has liberty to obtain the tower location of his own mobile and also call

details from the concerned company during the course of the defence evidence, has rightly declined to entertain the application filed by the applicant under Section 91 Cr.P.C. It is contended by the counsel that the reliance placed on the decision of the Apex Court in Suresh Kumar (supra) is misplaced as in the present case the trial Court while considering the application filed by the

Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55

applicant under Section 91 Cr.P.C has assigned cogent reason while reserving liberty with the applicant, to bring on record his own mobile tower location at the time of defence evidence. Therefore, submits that the application filed by the applicant is liable to be dismissed.

6. Heard rival submissions and perused the record.

7. A perusal of the impugned order reflects that an application moved by the applicant under Section 91 Cr.P.C has been rejected by the trial Court. It is the case of the petitioner that co-accused Guddu Singh Lodhi was taken into custody on 21.8.2022 at around 8 a.m. and was taken to Police Station Damoh Dehat. Then he was taken again to Police Station Nohta. On 21.8.2022, all the police officials who effected arrest had gone to Jabalpur and, near Shahpura fly- over, the applicant No. 1 was also picked-up by the police official and they came to Nohta in a Seltos Car bearing registration No. MP 15 CB 7733. Later, on next day, around 10 a.m., it was alleged by the prosecution that 101 k.g. of Ganja was recovered from the applicant.

8. It is not a question of debate in the present case that even an accused has a right to move an application under Section 91 Cr.P.C and accordingly the said application can be entertained to ensure discovery of truth, rendering of justice and preventing failure of justice. However, it is for the Court to come at a conclusion regarding aspect of necessity and desirability of the document. The Division Bench in Umesh Tiwari (supra) held in paragraph 4.5 and 7 as under

"4.5 From the aforesaid analysis, it is vivid that it would not be proper to restrict the right to invoke Section 91 to only the Court and the Police Officer. The window of Section 91 will have to remain open for all the stakeholders in an investigation, inquiry, trial Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55

and other proceedings, be it the victim, accused, police, Court or any other stakeholders involved.

7. The Court can invoke Section 91 either suo moto or on behest of some stakeholder in the process of investigation, inquiry, trial or other proceedings. The cause for invoking Section 91 can arise from any source, be it victim, accused (except during pendency of investigation) and Police. Denying any of the stakeholder, the right to invoke Section 91 may defeat the ultimate object behind Section 91 which is to ensure discovery of truth, rendering of justice and preventing failure of justice. However, any such invocation by any stakeholder at any point of time would be subject to satisfaction of necessity and desirability of that document to the process of investigation, inquiry, trial or other proceedings." Thus, the aforesaid judgment of the Division Bench of this Court reflects that the application was maintainable at the behest of the applicant who is one of the accused in the case.

9. As to whether the said application could have been rejected by the Trial Court, for this aspect, it is relevant to take into consideration the judgment of the Apex Court in Suresh Kumar (Supra). In Suresh Kumar (Supra), an application was moved before the trial Judge for summoning the call details of the officials who had effected the arrest of accused persons. The Apex Court, while considering the scope and ambit of Section 65 A and B of the Evidence Act, concluded that the accused has every right to summon whatever is relevant and admissible in his defence including electronic record. In that case the apprehension expressed by the counsel for prosecution was also taken note of by the Apex Court and, the Apex Court also considered the aspect that the call details were to be summoned only for the purposes of determining the exact location of the official concerned and none of the other information concerning Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55

such calls received or made from the telephone numbers concerned were to be disclosed. The Apex court further directed the Mobile companies to black out the calling numbers and the numbers called from the said mobile while furnishing such details. The Apex Court, in paragraph 2 dealt with the facts of the case as under and then proceeded to decide controversy in paragraphs 5, 6, 7; paragraphs 2, 5, 6, 7 of Suresh Kumar (supra) are reproduced as under:

2 . The appellant is being prosecuted before the Special Judge, NDPS, Indore for offences punishable under Sections 8, 21, 22, 29 read with 8(C) of the NDPS Act, 1985. The prosecution case it appears is that the appellant was nabbed in front of Yashica Palace hotel near Gangwal bus stand at Indore between 1800 and 1900 hrs. on 24.02.2013 by the Intelligence Officer of the Narcotics Control Bureau carrying 610 gms of heroin and 40 gms. of Alprazolum in a bag which was seized by the Officer effecting the arrest. A mobile phone Sim No. 90395020407 was also according to the prosecution, seized from the possession of the appellant. While the trial has yet to commence on the charge sheet filed against the appellant, an application was filed on his behalf before the Special Judge, NDPS, Indore praying for a direction summoning call details that would indicate the locations of three different mobile telephone numbers mentioned in paras 3 and 5 of the said application. Out of these numbers one of the mobile phones admittedly belongs to the appellant-accused while the other two telephone numbers bearing Sim No. 9165077714 issued by the Airtel Company and Sim No. 7145593902 issued by the Tata Docomo Company are said to be of the Officers who are alleged to have arrested the appellant on the date, time and place, mentioned above. The appellant's case before the Trial Court and so also before the High Court was that the prosecution story that he was arrested from near about the hotel, mentioned above, was factually incorrect which fact could according to the appellant be proved by the call details of the mobile numbers held by the officers who are alleged to have arrested the appellant. The appellant contended that the telephone numbers of the Officer effecting the arrest and making the seizure would show that the officers concerned were at some other locations during the time the appellant's arrest and resultant seizures are alleged to have been made. The Trial Court and the High Court have declined that prayer as noticed above.

5. Insofar as the call details of the mobile connection held by the Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55

accused are concerned the same have according to Mr. Luthra already been produced at the trial clearly showing that the accused was at the relevant point of time at or around the place from where he was arrested. This according to the learned ASG obviates the necessity for proving whether the officers concerned were indeed present in the area from where the petitioner was allegedly arrested along with the narcotics.

6. That electronic records are admissible evidence in criminal trials is not in dispute. Sections 65A and 65B of the Indian Evidence Act make such records admissible subject to the fulfilment of the requirements stipulated therein which includes a certificate in terms of Section 65B(4) of the said Act. To that extent the appellant has every right to summon whatever is relevant and admissible in his defence including electronic record relevant to finding out the location of the officers effecting the arrest. Be that as it may we do not at this stage wish to pre-judge the issue which would eventually fall for the consideration of the Trial Court.

7. All that we are concerned with is whether call details which the appellant is demanding can be denied to him on the ground that such details are likely to prejudice the case of the prosecution by exposing their activities in relation to similar other cases and individuals. It is not however in dispute that the call details are being summoned only for purposes of determining the exact location of the officers concerned at the time of the alleged arrest of the appellant from Yashica Palace hotel near the bus stand. Ms. Makhija made a candid concession that any other information contained in the call details will be of no use to the appellant and that the appellant would not insist upon disclosure of such information. That in our opinion simplifies the matter inasmuch as while the call details demanded by the appellant can be summoned in terms of Section 65B of the Indian Evidence Act such details being relevant only to the extent of determining the location of officers concerned need not contain other information concerning such calls received or made from the telephone numbers concerned. In other words if the mobile telephone numbers called or details of the callers are blacked out of the information summoned from the companies concerned it will protect the respondent against any possible prejudice in terms of exposure of sources of information available to the Bureau. Interest of justice would in our opinion be sufficiently served if we direct the Trial Court to summon from the Companies concerned call details of Sim telephone No. 9039520407 and 7415593902 of Tata Docomo company and in regard to Sim No. 9165077714 of Airtel Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55

company for the period 24.02.2013 between 4.30 to 8.30 p.m.. We further direct that calling numbers and the numbers called from the said mobile phone shall be blacked out by the companies while furnishing such details. We accordingly set aside the order impugned and allow this appeal to the extent indicated above."

10. The facts of the present case also stand on similar footing, inasmuch as, the applicant has filed an application under Section 91 Cr.P.C and sought summoning call details on the ground that the applicant was taken into custody a day before the date of incident. The said information, is required for discovery of truth, and also in order to prevent failure of justice.

11. Therefore, this Court is of the considered view the order passed by the Trial court is unsustainable and accordingly the same stands set aside. The Trial Court is directed to summon from the concerned companies the tower location of persons as mentioned in paragraph 7 of the application filed under Section 91 Cr.P.C. for the period from 21.8.2022 to 22.8.2022. It is further directed that the calling numbers and numbers called from the said mobile shall be blacked out by the companies while furnishing such details. It is clarified that there will not be any disclosure regarding the call made from the said numbers or the call received on the said numbers except the mobile tower location.

12. It is further clarified that this order only pertains to direction to summon the mobile tower location for the aforesaid period and no other information shall be summoned by the Court below.

13. With the aforesaid, the petition stands disposed of.

(MANINDER S. BHATTI) JUDGE Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55

vivek

Signature Not Verified Signed by: VIVEK KUMAR TRIPATHI Signing time: 01-07-2023 12:15:55