Rajasthan High Court - Jodhpur

Kapil vs State Of Rajasthan on 6 July, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 1910/2021

Kapil S/o Shri Bharmal, Aged About 28 Years, By Caste Bishnoi, R/o Kanwarji Ki Khejari Tapu, Tehsil Osian, District Jodhpur.

----Petitioner Versus State Of Rajasthan, Through P.p.

                                                                     ----Respondent


   For Petitioner(s)         :    Mr. K.C. Bishnoi
   For Respondent(s)         :    Mr. Mahipal Bishnoi PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Reportable

Order

06/07/2021

1. In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

2. This criminal misc. petition under Section 482 Cr.P.C. has

been preferred against the order dated 01.03.2021 passed by

learned Special Judge, NDPS Cases Jodhpur in Criminal Misc. Case

No.32/2021 (Sessions Case No.10/2021), whereby the application

filed by the petitioner under Section 91 Cr.P.C. was rejected.

3. Learned counsel for the petitioner submits that on

19.04.2020, the Station House Officer, Police Station, Osiyan, on

the basis of a confidential information, raided the dhani of the

present petitioner and allegedly recovered seven plastic bags

containing 142 kgs. 692 gms. of poppy straw. Learned counsel

further submits that thereafter, an FIR bearing No.81/2020 was

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registered at Police Station, Osiyan, Jodhpur Rural and

investigation was started.

4. Learned counsel for the petitioner also submits that the

charge-sheet in this case has already been filed. Learned counsel

also submits that the petitioner repeatedly moved application for

certain call details and tower location to be taken on record from

19.04.2020 (10:00 p.m.) to 20.04.2020 (05:50 a.m.). Learned

counsel however, submits that the learned court below has

dismissed the application preferred by the petitioner under Section

91 Cr.P.C. vide the impugned order dated 01.03.2021.

5. Learned counsel for the petitioner relied upon the judgment

rendered by this Hon'ble Court in Shrawan Singh @ Baba Vs.

State of Rajasthan (SBCRLMP No.273/2020, decided on

18.02.2020), relevant portion of which reads as under:

"I am of the firm opinion that summoning of these call details was absolutely imperative for fair trial and providing a just opportunity of defence to the accused. In case, the allegations set out in the application for summoning the call details are fortified from the call details, manifestly, the entire prosecution case would stand falsified. Therefore, the trial court was not justified in rejecting the application by the impugned order which does not stand to scrutiny. It is therefore ordered that the trial court shall, forthwith summon the call details of the mobile phones of all the three officers whose names are referred to in the impugned order from the service provider provided that such call details are still stored in the database. The accused shall be at liberty to use these call details at the appropriate stage of the trial."

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6. Learned counsel for the petitioner further relied upon the

judgment rendered by this Hon'ble Court in Narendra Singh Vs.

State of Rajasthan, reported in 2017 R.Cr.D 243 (Raj.),

relevant portion of which reads as under:

"5. Admittedly, the call details and location details of the police party cannot be produced by the providers. It is only at the behest of the court that the same can be requisitioned. If the recovery is fake, accused-petitioner can establish that false case was lodged against him.

6. The rejection of the application on the ground that it is not the duty of the Court to collect evidence for the defense, is not the right approach adopted by the Court below. The Court below is required to do justice and when there is specific allegation that the recovery is fake and same can be established by the call details and location details of the Police Raiding Party, it was the bounder duty of the Court below to have summoned the reports of the service providers."

7. Learned counsel for the petitioner also relied upon the

judgment rendered by this Hon'ble Court in Jasveer VS. State of

Rajasthan, reported in 2015(1) R.Cr.D. 526 (Raj.), relevant

portion of which reads as under:

"6. The call details, which were sought to be summoned in this case were required for defence of the accused. The specific theory of the accused before the learned Trial Court is that the Seizure Officer and the motbir witness Parbat Singh were not present at the place of seizure when the recovery was effected and seizure documents prepared. Therefore, the call and location details of the mobile phones held by these two witnesses would be vital and material for

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the defence of the accused. The defence can endeavour to prove its stance by resorting to any legally permissible . . . . . .it cannot be fettered or restricted to use the document filed by the police under Section 173 Cr.P.C. only. The mobile call details which were sought to be summoned are not in the control or approach of the accused. He cannot be expected to procure them on his own. Thus, the accused justifiably approached the Trial Court under Section 91 Cr.P.C. to procure the call details from the powers under Section 91 Cr.P.C. to summon a document or a thing from the possession of any person, if it is satisfied that the summoning thereof is justified. As has already been discussed above, the accused has a right to get summoned the call details to establish his innocence. The prayer made in this regard was wrongly rejected to the extent of the call and location details of the witnesses Navneet Vyas and Prabat Singh. So far as the call details of the mobile phones of other witnesses are concerned, they are not material and the Trial Court rightly rejected the power for summoning the same."

8. Learned counsel for the petitioner has also placed reliance on

the judgment rendered by this Hon'ble Court in Sheru @

Surajnath Vs. State of Rajasthan, reported in 2014(1)

R.Cr.D. 435 (Raj.), relevant portion of which reads as under:

"6. The reasoning propounded by the Special Judge, NDPS Act Case, Bhilwara cannot be accepted because valuable rights of the petitioner to project his defence would be defeated as petitioner being accused can prove that police officials were not present to deny the allegations that the police officials who has allegedly participated in the search and seizure of the contraband article from the accused, were not present

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at the alleged place of recovery. At the same time, the Court has to balance the equities and has to ensure that the application filed under Section 91 Cr.P.C. by the accused is not used as means to delay the proceedings.

7. Consequently, taking total perspective of the case, it is ordered that accused after recording of his statement under Section 313 Cr.P.C. can examine the officials of the service provider (Mobile Companies) as witnesses along with details of the towers from which call had emanated. The trial court is further directed to issue direction to the companies to preserve the record of call details if not already destroyed."

9. Learned counsel for the petitioner has further placed reliance

on the judgment rendered by this Hon'ble Court in Smt. Manju

Devi Vs. State of Rajasthan (SBCRLMP No.129/2014,

decided on 10.03.2014), relevant portion of which reads as

under:

"If the location and call details of the mobile number 9414917651 pertaining to the date of the incident are summoned, the case of the prosecution cannot be said to be prejudiced in any manner and the details of the mobile phone number 9414917651 will only facilitate the trial court to find the truth in the prosecution story."

10. Reliance has also been placed by learned counsel for the

petitioner on the judgment rendered by this Hon'ble Court in

Ghewar Ram @ Ghewar Chand Vs. The State of Rajasthan

(SBCRLMP No.2049/2014, decided on 29.09.2014), relevant

portion of which reads as under:

"From a perusal of the order impugned, the material available on the record as well as the letter dated 17.09.2014 issued by the SHO, Police Station,

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Rohat District Pali it is evident that the two police officers namely Jitendra Singh and Raju Singh were holding the sim number being 9350420022 and 9530420050 respectively on the date of recovery. The specific case of the petitioner is that these two officers were not present on the spot at the relevant time when the recovery of contraband narcotics was allegedly effected from the petitioner. Thus, their mobile call details and tower locations would be relevant for the defence theory. The mobile call details of the aforesaid two mobile is essential to provide appropriate opportunity to the petitioner to defend his case."

11. Learned Public Prosecutor though opposes the petition on

merits, but submits that the judgments, which have been cited by

learned counsel for the petitioner, are holding the field, to the

limited extent of legal proposition.

12. After hearing learned counsel for the parties as well as

perusing the record of the case, alongwith the judgments cited at

the Bar, this Court deems it appropriate to direct the learned court

below to summon the necessary call details and tower locations, in

the best interest of fair trial and proper opportunity to the

accused-petitioner to defend his case. Such call details shall be

summoned by the learned court below, only in relation to those

officers, who are said to have been present at the site of recovery

in question. The service provider of the mobile service shall

provide such call details and tower locations to the learned court

below, if they are stored in the database, and the accused-

petitioner shall be at liberty to use such call details and tower