Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 939 (RAJ)

Banwari Lal Nayak v. State of Rajasthan

2023-04-26

FARJAND ALI

body2023
JUDGMENT : Farjand Ali, J. The instant Criminal Revision Petition is barred by 44 days and is supported by an application under Section 5 of the Limitation Act. 2. For the reasons stated and grounds mentioned in the application filed under Section 5 of the Limitation Act, the same is allowed and the delay of 44 days in filing the instant revision is condoned. 3. The present criminal revision petition has been filed by the petitioner under Section 397 r/w Section 401 Cr. P.C. challenging the correctness, legality or propriety of the order dated 19.11.2022 passed by the learned Special Judge (Women Atrocities & Dowry Cases), Sriganganagar in Session Case No. 89/2021 whereby the application moved by the petitioner under Section 91 of CrPC praying for procuring Call Data Record/Call Details for the period of six months prior to August, 2021 pertaining to the two mobile numbers allegedly being used by the prosecutrix was rejected. 4. Learned counsel for the accused-petitioner submits that a false case has been foisted against the petitioner and that he was roped in the matter based on false allegations. He was in a consensual relationship with the prosecutrix of the case and they used to communicate frequently with each other, however, the prosecutrix has denied the same during her cross-examination in the trial. She has further stated in her cross-examination that her husband has been using the mobile number 70237-13441 from the beginning and that on the day of the incident as well, the SIM pertaining to the mobile number 70237-13441 was with her. husband who has gone to Bangalore to work as labour and lives there. The CDR of the phone numbers being used by the prosecutrix needs to be procured to prove that the phone was indeed being used by the prosecutrix and that she had made calls to the petitioner thereby proving her consent. 5. It is further submitted that the order passed by the learned judge below is not based on sound reasoning and the valuable right of the petitioner under Section 91 of CrPC has been curtailed by the said order. 6. Learned AGA vehemently opposes the submissions made by learned counsel for the petitioner and submits that the learned judge below passed the order dated 19.11.2022 after due consideration and based on cogent reasons, thus, the same does not warrant interference by this Court. 7. 6. Learned AGA vehemently opposes the submissions made by learned counsel for the petitioner and submits that the learned judge below passed the order dated 19.11.2022 after due consideration and based on cogent reasons, thus, the same does not warrant interference by this Court. 7. Heard learned counsel for the petitioner as well as learned AGA. Perused the material available on record. 8. The submission made by learned counsel for the accused-petitioner that the CDR is required to prove that the relationship of the petitioner and the prosecutrix was consensual seems to be worth considering. 9. The Call Data Record contains the number of the tower from which the user received network while making a certain call. The location of the tower is found based on the tower number and the same is used to establish the location of the user. Since the prosecutrix has explicitly stated in her cross-examination that the said mobile number was not being used by her but by her husband and it is the case of the defence that the prosecutrix used to talk to the petitioner using the said mobile number and that her husband resides in Bangalore and was working there when the incident took place, then the tower location pertaining to the said mobile number would reveal the truth and make it certain whether the contention of the petitioner is true or not and whether the relationship between the petitioner and the prosecutrix was consensual or not. The purpose of trial is to ascertain/discover the truth of the matter while balancing and protecting the rights of the victim, the rights of the accused as well as the rights of the society at large, thus, it is vital to the case that the desired information is obtained from the service provider. 10. Establishing the fact of presence or absence of consent is very imperative in a case where the allegations pertain to commission of rape and sexual assault and the information that the CDR would reveal cannot be furnished or produced by the petitioner as it is out of his control. 11. Every accused has a right to be defended and this right is sanctified by Article 22 of the Constitution of India. 11. Every accused has a right to be defended and this right is sanctified by Article 22 of the Constitution of India. Clause 1 of Article 22 provides that without being informed about the grounds for arrest, as soon as possible, no individual can be detained in custody and the right to consult and be defended by a legal practitioner cannot be denied to such individual facing detention. A person who is detained has certain rights that are required to be upheld by the courts. In the present matter it is apparent that the detenue/accused-petitioner wants to make a representation based on the findings from the CDR of the phone number for which he claims that the same was being used by the victim to make calls to him/stay in touch with him on a regular basis. The nature of evidence is such that the petitioner cannot get his hands on the evidence and though this Court refrains from going into the niceties of the matter but it cannot be overlooked that the desired information from the service provider would provide a clearer picture of the facts and circumstances of the case. In such a situation, it becomes the duty of the Court to protect the right of the accused to defend himself if the concern of the accused party seems to be genuine. 12. Section 303 of the Code of Criminal Procedure talks about the right of person against whom proceedings are instituted to be defended and it also provides the right to the accused to be defended by a pleader of his choice. Section 303 of CrPC is reproduced below for easy reference : 303. Right of person against whom proceedings are instituted to be defended. - Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice. 13. In light of the statutory provision of the Code prescribing criminal procedure and the guarantee provided by the Constitution, this Court is of the view that the. right of the accused to make the desired representation, in the background of the present factual matrix, should be protected. 14. 13. In light of the statutory provision of the Code prescribing criminal procedure and the guarantee provided by the Constitution, this Court is of the view that the. right of the accused to make the desired representation, in the background of the present factual matrix, should be protected. 14. In the opinion of this Court, the procurement of the requisite CDR to prove the stance of the petitioner is a necessary requirement to reach to the truth in the trial and thus, this Court sees room for interference in the impugned order passed by the learned Special Judge to secure the ends of justice. There is merit in the revision petition and the order under assail deserves to be quashed and set aside. 15. Accordingly, the S.B. Criminal Revision Petition bearing No. 367/2023 filed by the petitioner- Banwari Lal S/o Lekhuram succeeds and the same is allowed. The impugned order dated 19.11.2022 passed by the learned Special Judge (Women Atrocities & Dowry Cases), Sriganganagar in Session Case No. 89/2021 is hereby quashed and set aside. The application filed by the applicant-petitioner under Section 91 CrPC is hereby allowed and as a consequence thereof, it is ordered that the respondent and the concerned Telecommunication Authorities shall procure the Call Data Record containing details from which tower location of the user of the above-mentioned mobile numbers is ascertainable and any other requisite documents as mentioned in the application dated 08.09.2022 filed by the petitioner before the trial court and provide the same to the trial court within a period of 15 days from the receipt of this order. 16. The instant revision petition is disposed of. Pending applications, if any, also stand disposed of.