The accused has the right to obtain and use call details for his defense and to confront the prosecution's witnesses with relevant questions.

JUDGMENT

Dinesh Mehta, J. - By this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code'), the petitioner has challenged the order dated 02.05.2022 passed by the learned Additional District & Sessions Judge No. 1, Barmer (hereinafter referred to as the 'trial Court'), whereby his application under Section 91 of the Code has been rejected.

2. The petitioner is being tried for the offences under Sections 376, 450 and 384 of the Indian Penal Code on the allegation of having committed sexual assault on the prosecutrix.

3. During course of the trial, after commencement of the prosecution evidence, on 05.08.2021, the petitioner moved an application under Section 91 of the Code with an assertion that during the course of investigation, though the Investigating Officer had procured call details between the petitioner and the prosecutrix, but the same has not been placed on record. The petitioner prayed that such call details procured by the Investigating Officer be called for.

4. Learned trial Court rejected petitioner's application inter alia observing that it is for the prosecution to prove its case and the petitioner being accused cannot guide the prosecution.

5. Learned counsel for the petitioner argued that the learned trial Court has seriously erred in rejecting petitioner's application.

6. It is argued that rejection of petitioner's application for the reasons indicated is clearly unsustainable, inasmuch as the petitioner wanted the call details to be brought on record so that certain relevant questions can be put to the prosecution witnesses, including the prosecutrix in order to establish that she had long relationship with the petitioner-accused.

7. Learned Public Prosecutor opposed the prayer of the petitioner and submitted that the order passed by the trial court does not call for any interference and the trial Court has committed no wrong in rejecting petitioner's application for the reasons indicated therein.

8. Heard.

9. After hearing learned counsel for the parties and upon perusal of the application, this Court finds that it was the specific stand of the petitioner (accused) in his application that the Investigating Officer should have procured the call details of the petitioner and the prosecutrix.

10. In the given factual matrix, the petitioner was justified in calling for the call details on record so that he can confront the prosecutrix and pose relevant questions to her in order to show that the petitioner and the prosecutrix had long relationship and take consequential defence (if any) available.

11. The trial Court has completely misdirected itself and turned down petitioner's application observing that it is for the prosecution to establish its case. As a matter of fact, the petitioner wants it to be produced for his own purposes so that he can cross-examine/confront the witness (es). Neither the petitioner can secure the call details from the telephone company nor can he put forth any question unless the call details are on record.

12. Trial Court has also erred in holding that petitioner himself can obtain call details from concerned telephone Company. Firstly, when the call details are already with the Investigating Officer, it is not proper to ask the petitioner to obtain call details and secondly, petitioner cannot obtain call details of the prosecutrix. The incident is of 19.10.2020 and according to the trial Court itself, mobile companies are not supposed to keep the call record beyond a period of one year. If that be so, how could the accused at his level get the call details? That apart, when the fact that the call details were obtained had been asserted, the trial Court ought to have directed the Investigating Officer to obtain the same, if not already obtained.

13. Viewed from any angle, this Court is of the view that the trial Court has erred in rejecting petitioner's application considering it to be an application seeking to support the prosecution's case, w