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2022 DIGILAW 2108 (RAJ)

Ghanshyam v. State Of Rajasthan

2022-07-25

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - By way of present petition, petitioner has challenged the order dated 23.02.2022 passed by the learned Metropolitan Magistrate No. 3, Jodhpur Metropolitan (hereinafter referred to as 'the trial Court') whereby petitioner's application filed under Section 91 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') for summoning call details of SHO - Parmeshwari, Constables - Akbar, Pemaram, Madaram and Ashok has been rejected. 2. The facts narrated briefly are that the petitioner instituted a complaint alleging that the concerned SHO has falsely implicated the petitioner in a case under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act of 1985') on the basis of false recovery. 3. In the complaint so filed, when the statements under Sections 200 & 202 of the Code had been recorded, the petitioner moved an application on 18.11.2021 under Section 91 of the Code and requested the trial Court to summon call details of the above referred officials of the concerned police station. 4. The trial Court rejected petitioner's application inter alia observing that the petitioner can move such application in the case which is pending before the NDPS Court, Jodhpur. 5. Mr. Vyas, learned counsel for the petitioner argued that the case in which the petitioner is being tried for the offence under Section 8/15 of the Act of 1985 is a separate case, in which the petitioner is an accused, whereas in the instant case the petitioner is a complainant and has sought prosecution of the accused - persons, as they have illegally framed in. 6. It was also argued that if the call details of the above referred persons are not summoned, the same will be erased after two years and further that the petitioner cannot obtain call details of these persons at his own. And as a result, the petitioner would not be able to get the vital evidence in support of his stand/assertion. 7. Learned counsel for the petitioner relied upon the judgments rendered by the Co-ordinate Bench of this Court in case of Swarn Singh @ Baba v. State of Rajasthan (SB Criminal Misc. Petition No. 273/2020), order dated 06.07.2021 passed in the case of Kapil v. State of Rajasthan (SB Criminal Misc. 7. Learned counsel for the petitioner relied upon the judgments rendered by the Co-ordinate Bench of this Court in case of Swarn Singh @ Baba v. State of Rajasthan (SB Criminal Misc. Petition No. 273/2020), order dated 06.07.2021 passed in the case of Kapil v. State of Rajasthan (SB Criminal Misc. Petition No. 1910/2021) and order dated 19.02.2020 rendered in the case of Hari Ram v. Union of India, NCB (SB Criminal Misc. Petition No. 245/2020). 8. Learned Public Prosecutor opposed petitioner's prayer and submitted that the petitioner who is otherwise an accused cannot get evidence in his support collected through or with the help of the Court in the guise of an application under Section 91 of the Code. 9. Heard learned counsel for the parties. 10. Having regard to the facts and circumstances of the case and considering that the petitioner's basic allegation is that no recovery was made from the petitioner and the persons - police personnel have wrongly implicated him on the basis of a false recovery, this Court is of the view that call details of the persons mentioned in the application would serve the cause of justice. 11. In the opinion of this Court, it was imperative for the trial Court to have allowed the application because if the petitioner wished to collect call details and call locations of the police personnel, no mobile company would oblige him. That apart, if the requisite information is not procured immediately, then there is every possibility that the record would be erased by the mobile companies as they are not supposed to keep the record beyond a period of two years. 12. In view of the aforesaid and following the judgments of this Court noted in para No. 7 above, the present petition is allowed. The impugned order dated 23.02.2022 is hereby quashed and the petitioner's application dated 18.11.2021 stands allowed. 13. The trial Court is directed to issue requisite precept/order to the concerned mobile companies to send call details and call locations of the relevant time of the police personnel named in the application dated 18.11.2021. 14. The stay application also stands disposed of accordingly.