An application under Section 91 Cr.P.C. for summoning of call details must be made promptly and cannot be used to stall the proceedings or to discredit the testimony of witnesses without any basis.

1. - Heard learned counsel for the parties.

2. The petitioner has approached this Court by way of the instant misc. petition challenging the order dated 19.6.2015 passed by the learned Sessions Judge, District Jodhpur in Sessions Case No. 152/2013 whereby, the application preferred by the petitioner accused under Section 91 Cr.P.C. for summoning the call details of mobile nos. 7398489885 and 8765502251 for the period 1.8.2013 to 31.8.2013 was dismissed.

3. Facts in brief are that the petitioner and certain other accused are facing trial in the Court of learned Sessions Judge, District Jodhpur for the offences under Sections 342, 376(2)(f), 376D, 354A, 370(4), 506, 509/34, 109 and 120B IPC, Sections 23 and 26 of Juvenile Justice Act and Section 5(f)(g)/6, 7/8 and17 of the POCSO Act. The Investigating Officer, during the course of investigation collected the call details of the above two mobile numbers which are said to be in use by the victim, her mother and one Karamveer Singh. The call details were filtered as per relevance and produced along with the charge-sheet. The testimony of the victim, her mother and Karamveer Singh was completed at the trial. Extensive and prolonged cross examination was conducted by the counsel representing the accused from these three witnesses. Long after that, on 30.5.2015, the application under Section 91 Cr.P.C. came to be submitted by the accused petitioner before the trial Court.

4. It would not be out of place to mention that two co-accused namely, Ms. Sanchita @ Shilpi and Shiva @ Savaram had long back, filed an application with exactly the same prayer before the trial Court. The said application was dismissed by order dated 28.4.2014. The above two accused approached this Court assailing the order dated 28.4.2014 by way of S.B. Crl. Misc. Petition No. 1115/2014. The said misc. petition was rejected by this Court by a detailed order dated 9.5.2014. While rejecting the misc. petition, this Court upheld the finding recorded by the trial Court that the call details being sought to be summoned are not necessary and desirable for the just decision of this case.

5. Thereafter, few of the accused persons filed an application dated 20.5.2014 in the trial Court praying that the call details asked for in the application under Section 91 Cr.P.C. should be kept preserved because the same would be destroyed after 365 days as per the prevalent practise. The said application was also dismissed by the trial Court by order dated 1.7.2014 which was not challenged by any accused.

6. Now when the last prosecution witness namely, the Investigating Officer is being examined at the trial, the petitioner has preferred the application under Section 91 Cr.P.C, as above which has been dismissed by the order under challenge.

7. Learned senior counsel Mr.Bora heavily relied on the statement of PW22 Ram Kishore examined before the trial Court and urged that the witness, during his cross examination admitted that he saw the victim strolling on the roof outside her room at about quarter to in the night and she was using the phone at that point of time. On the strength of this evidence, learned counsel tried to assert that as the victim was using the phone at about 12:00 PM in the night of 15.8.2013, it is essential to summon the call details so that the testimony of the witnesses can be discredited on the strength of these missing call details. It is further asserted in the application that though the prosecution has produced the call record of these SIM numbers with the charge-sheet but the call details for the period between 13.8.2013 to 16.8.2013 are missing. He thus urged that the prosecution cannot be allowed to be selective in producing the call details and, therefore, in order to ensure a fair trial of the case, the entire call details must be directed to be produced before the trial Court.

8. Per contra, learned public prosecutor and learned counsel for the complainant vehemently opposed the submissions advanced