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2014 DIGILAW 1749 (RAJ)

Jasveer v. State of Rajasthan

2014-10-30

SANDEEP MEHTA

body2014
JUDGMENT 1. - Heard learned Counsel for the parties. 2. The instant Misc. Petition has been preferred by the petitioner challenging the Order dated 23.1.2014 passed by the learned Additional Sessions Judge, Nagpur in Sessions Case No. 24/2012 whereby the application filed by the petitioner under Section 91 Cr.P.C. for summoning various documents was rejected. 3. Learned Counsel for the petitioner submits that the is facing trial for the serious offences including offences under Sections 376(2)(g) and 302/149 I.P.C. in this case. His specific defence before the Trial Court was that he was 1 implicated in his case on the basis of fictitious recovery. The S.H.O. Police Station Molasar, Mr. Navneet Vyas, who allegedly effected the recovery, was present at the Police Station and did not go to the place of recovery at all. Likewise, Mr. Parbat Singh, Constable, who stood as motbir, was also not available at the place of recovery when the seizure documents were prepared. He submits that the police got conducted a videography of the process when the body of the deceased was recovered. Copy of the said videography was not supplied to the petitioner along with the charge-sheet. He submits that the Trial Court unjustly rejected the application preferred by the accused-petitioner on the ground that the documents do not fall within the purview and ambit of Section 173 Cr.P.C. and thus, cannot be supplied to the accused. He submits that these documents are essentially required for the defence of the accused. The defence need not be restricted to the documents filed under Section 173 Cr.P.C. He further submits that a suggestion has already been given to the Investigating Officer, that he was not present on the scene of occurrence. This fact can very well be established by scientific evidence i.e. the call and location details of the mobile phone of the witnesses. He, therefore, prays that the Misc. Petition be allowed and the learned Trial Court be directed to summon the call details of these two witnesses and also be directed to supply the videography report submitted by the police along with the challan papers to the accused. 4. Learned Public Prosecutor opposes the submissions advanced on behalf of the petitioner. However, he states that the videography, which the accused has requested for, has been filed along with the charge-sheet and the copies thereof can be supplied to the accused without any objection. 5. 4. Learned Public Prosecutor opposes the submissions advanced on behalf of the petitioner. However, he states that the videography, which the accused has requested for, has been filed along with the charge-sheet and the copies thereof can be supplied to the accused without any objection. 5. I have considered the arguments advanced at the Bar and have perused the impugned order. 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 witnesses 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 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 documents 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 justifiedly approached the Trial Court under Section 91 Cr.P.C. to procure the call details from the concerned mobile service provider. The Trial Court has wide 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 right to be defended is a fundamental right of every accused. The prayer made in this regard was wrongly rejected to the extent of the call and location details of the witnesses Navneet Vyas and Parbat Singh. So far as the call details for the mobile phones of other witnesses are concerned, they are not material and the Trial Court rightly rejected the prayer for summoning the same. 7. Resultantly, the present Misc. Petition is allowed in part. So far as the call details for the mobile phones of other witnesses are concerned, they are not material and the Trial Court rightly rejected the prayer for summoning the same. 7. Resultantly, the present Misc. Petition is allowed in part. The Trial Court is directed to supply a copy of the videography and the photographs, which the prosecution claims to have filed along with charge-sheet, to the accused if these documents are not on record, they shall be summoned and copies thereof supplied to the accused. Furthermore, the call and location details of the mobile phones of Mr. Navneet Vyas, S.H.O. Police Station Molasar and Mr. Parbat Singh, Constable for the relevant period shall be summoned from the concerned service provider, if the same are still available in their database and copies thereof shall be provided to the accused. The accused shall be at liberty to make use of the summoned documents as per law at the appropriate stage.Stay Petition also stands disposed of.Petition partly allowed. *******