2018 Supreme(HP) 154

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
Ishwar Dass - Petitioner
Versus
The State of Himachal Pradesh - Respondent
CrMMO No. 484 of 2017
Decided On : 16-04-2018

Headnote:

CRIMINAL - SECTION 91 CRPC - SUMMONS TO PRODUCE DOCUMENT OR OTHER THING - APPLICATION FOR PRODUCTION OF DOCUMENTS - REJECTION OF APPLICATION - IMPUGNED ORDER - QUASHING OF - DIRECTIONS TO COURT BELOW TO SUMMON DOCUMENTS AS PRAYED FOR IN THE APPLICATION - PETITION ALLOWED.

Fact of the Case:

Petitioner, facing proceedings in Sessions Trial No. 50/16 pending before Special Judge-II, Kullu, Himachal Pradesh, preferred an application under Section 91 CrPC, averring that he has been falsely implicated in the case and as such, in order to establish his innocence, requires the assistance of the copies of call details, location and documents given for issuance of SIM cards of following mobile phone number:- (i) Mukesh Kumar holder of Cell No. 98179-73425 (Reliance); (ii) Manoj Kumar holder of Cell No. 94181-83325 of BSNL (iii) Vijay Kumar holder of Cell No. 94182-69680 of BSNL, and; (iv) Ram Lal Thakur, holder of Cell No. 94184-50373 of BSNL. Petitioner-accused further averred that the service providers may be directed to produce requisite information i.e. copies of call details and tower location for the period from 23.5.2016 to 24.5.2016 as also the identity documents and application forms alongwith photographs qua aforesaid mobile phone numbers. Aforesaid application came to be opposed vehemently by the respondent-State, who claimed that the application is not maintainable at this stage and same is barred under provisions of Sub-section (3)(b) of Section 91, wherein it is specifically provided that nothing in this Section shall apply to any document or thing which is in the custody of Telegraph Authority. Respondent-State further alleged that the accused had not given reasoning showing any urgency in filing the application and in the given facts and circumstances of the case, call details and other documents furnished by persons named in the application for issuance of SIM cards of mobile numbers would not serve any purpose and, as such, application deserves to be dismissed. Prosecution further claimed that the evidence adduced on record duly establishes the case of the prosecution and application has been filed solely with a view to prolong the trial. Apart from above, prosecution further claimed that the accused himself is not barred to apply for said call details, tower location, documents etc. and there is no provision of law, which empowers/casts a duty upon the court to create evidence for the accused. Learned court below, vide order dated 21.12.2017 rejected the aforesaid application. Court below taking note of the averments contained in the application, reply filed by the prosecution and the arguments advanced by the learned counsel representing the parties, passed following order: "7. From the perusal of the case file, it is transpired that on 21.11.2017, the applicant/accused has examined two witnesses and as per the separate statement of the learned counsel for the applicant/accused, the defence evidence was closed. Thereafter, the case was fixed for arguments on 05.12.2017, on which date the learned counsel for the applicant/accused sought time for arguments and the case was listed for arguments on 16.12.2017. From the perusal of the record, it also transpired that the applicant/accused had also filed similarly application, which was dismissed vide order dated 02.12.2017. Moreover, there is no provision of law where the Court will create defence evidence for the applicant/accused. Therefore, the law cited above by the learned counsel of the applicant/accused is not applicable in this case. Hence, the present applications deserves dismissal. 8. Hence, in view of my above discussions, the present application is hereby dismissed. It be tagged with main case file after due completion." It may be noticed that para Nos. 1 to 6 of the order contain only rival contentions of the parties and reasoning, if any, for rejection of the application has been given in para Nos. 7 and 8. In the aforesaid background, petitioner-accused being aggrieved and dissatisfied with the rejection of his application referred to herein above has approached this Court in the instant proceedings filed under Section 482 CrPC, praying therein for setting aside impugned order dated 21.12.2017 passed by learned Special Judge-II, Kullu and for allowing his application under Section 91 CrPC.

Finding of the Court:

Court below has not applied its mind before passing impugned order, rather, application has been decided in a most mechanical manner without assigning reasons. Interestingly, court below despite having taken note of judgment rendered by High Court of Delhi in Suresh Kalmadi (supra) has not bothered/cared to look into the observations and parameters culled out by the High Court of Delhi, for dealing with application under Section 91 CrPC. Learned Court below has simply stated in the order that there is no provision of law where court will create evidence for the accused as such law cited by the accused is not applicable in the case. Bare observation made hereinabove by court below itself suggests that the court below has dealt with the matter at hand in a most casual manner. Had the court below bothered itself to peruse the judgment passed by High Court of Delhi, it would have definitely not recorded in the order that there is no provision of law where court will create defence evidence for the accused. Section 91 CrPC, empowers court to issue summons to produce document or other thing, whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under this Code. Section 91 is reproduced herein below: "91. Summons to produce document or other thing. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891) or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."

Issues: None

Ratio Decidendi: Necessity and desirability of document sought to be produced with the assistance of the court is to be examined considering the stage when such prayer for summoning and production is made and party which makes such prayer, either police or the accused. But, definitely, application, if any, under Section 91 on the part of accused can be made at the stage of defence.

Final Decision: Petition allowed. Order dated 21.12.2017 passed by learned Special Judge, Kullu is set aside. Application under Section 91 CrPC as filed by petitioner is allowed. Court below is directed to summon the documents as prayed for in the application. Learned counsel representing the petitioner-accused undertakes to cause presence of the learned counsel representing the petitioner-accused before the court below on 23.4.2018.