The court emphasized the fundamental right to defend oneself and the necessity of preserving evidence for a fair trial, allowing the summoning of call data records and related documents.

Order

08/01/2025

1. The instant criminal miscellaneous petition has been preferred on behalf of the petitioner for challenging the order dated 14.06.2024 passed by the learned Additional Sessions Judge, Women Atrocities Cases, Jodhpur Metropolitan in Sessions Case No.47/2023, whereby the prayer made by him for taking on record the call details of the prosecutrix and his relatives and the photographs and the documents relating to prior arrest of the petitioner under Section 107 and 151 of the CrPC available with the investigating agency has been rejected.

2. Succinctly, stated the facts of the case are that an FIR No.112/2023 came to be registered against the petitioner at the Police Station Mata Ka Than for the offences under Sections 384 and 376 of the IPC and after investigation, a charge-sheet has been filed against him. He moved an application under Section 91 of the CrPC before the trial court with a prayer that the call data record of the prosecutrix and her relatives, photographs and documents regarding arrest of petitioner under Section 107 and 151 of the CrPC prior to lodging of the FIR in the instant case, which are available with the prosecution agency, may be summoned. It was averred in the application that the aforesaid documents are essential for the just decision of the case. It is contended that by virtue of the regulation of TRAI, the relevant data gets automatically expired after two years and if it happens so, the petitioner would be deprived of getting justice. The said application has been rejected, hence the instant miscellaneous petition.

3. Heard learned counsel for the parties and perused the material as made available to this Court.

4. This Court has made an elaborate discussion with regard to the controversy involved, in the case of Chotha Ram & Anr. Vs. State of Rajasthan passed in SBCRLMP No.3672/2023 decided on 04.03.2023. The relevant paragraphs are being reproduced hereunder:-

3. A plea has been raised at the behest of petitioners to the effect that a false case has been foisted upon them. The arrest memos and the seizure memos were not prepared at the time mentioned on it and this fact can be verified from the production of the documents, which are in the form of electronic evidence. It was contended that the police officers, whose names are mentioned in the seizure memo, were not present at the time and place as they have been portrayed in papers and as such the memos are farce since at the relevant point of time, neither the petitioners nor the police officers, whose names are mentioned in the application, were present at the crime place. In fact all the papers were prepared by the police at Police Station at a time different to what has been mentioned.

4. It is pleaded that the above fact can be verified from the production of call data record and tower locations of the mobile phones, which were with the police officers. A prayer was made for summoning the call details and tower locations of the mobile phones of police officers, names of which are given in the application, of the dates of 16.05.2022 and 17.05.2022, so as to elicit the truth. The said application has been rejected by the trial court vide the order under assail.

5. Heard learned counsel for the petitioners as well as learned Public Prosecutor and gone through the niceties of the matter.

6. Defending oneself is not only a statutory but a fundamental right guaranteed by the Constitution of India. Article 21 of the Constitution of India provides that no person shall be deprived for his/her life and personal liberty except in accordance with the procedure established by law.

7. In the case of Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597, Hon’ble the Supreme Court has emphasized that the procedure established by law must always be fair, just and reasonable and it cannot be arbitrary, oppressive