ORDER

Nagu, J:- 1. Inherent powers of this Court u/S 482 Cr.P.C. are invoked by the 2 M.Cr.C. No.60404/2021

Prosecution challenging the legality and validity of the order dated 7.10.2021 vide Annexure P/4 whereby an application u/s. 91 Cr.P.C. for production of call details of conversation which took place through the mobile of the complainant Ankit Mishra, Rajesh Khede, R.K. Nagaich and Anand Kumar during certain period, was allowed by the trial Court.

2. Learned counsel for the rival parties are heard on the question of admission as well as final disposal.

CONTENTIONS

3. The first and foremost ground raised by the petitioner-prosecution is that the accused who had successfully invoked section 91 before the trial Court had no right to do so for the reason that section 91 is not meant for the benefit of the accused and also that the said cannot be invoked during pendency of investigation. In support, learned counsel for the prosecution had relied upon the decision of the apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 (Para 25) and in the case of Nitya Dharmananda v. Gopal Sheelum Reddy, (2018) 2 SCC 93 (Para 8).

3.1 On the other hand, learned counsel for the respondent accused supporting the impugned order submits that if the call details are not requisitioned and preserved then the same would be lost forever. It is submitted that it was the duty of the prosecution to collect the said material evidence in shape of call details but the prosecution failed to perform its duty and therefore the accused respondent was compelled to step in by invoking section 91.

3.2 Learned counsel for the petitioner has relied upon section 91(3)(b) of Cr.P.C. and the order dated 27.2.2013 passed in M.Cr.C. No.9274/2012 (Ajaz Khan and others v. State of M.P.), the order dated 21.8.2020 passed in M.Cr.C. No.16227/2020 (Suryakant Patil v. State of M.P.) as well as the decision reported in 2015 (II) MPWN 66 (Himmat Singh v. CBN), 2017 (III) MPWN 71 (Renu Sharma v. Atul Bhargav), 2015 SCC Online Delhi 9639 (Suresh Kalmadi v. CBI).

3.3 Shri Kapil Duggal, learned counsel for the complainant relying upon the decisions in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (Paras 257 & 406), Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324 (Para 61) and Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 12 (Para 47), contends that since the prosecution is still at the stage of investigation and charge-sheets has not been filed, the question of invoking section 91 by the accused does not arises since investigation is a unilateral process where the accused has no role to play. More so, it is submitted by the complainant that he was not heard before passing the impugned order which was passed posthaste. The complainant lastly submits that by summoning the call records of the conversation inter alia of the complainant, the right to privacy of the complainant stand breached and since right to privacy is a concomitant of right to life, the complainant cannot be deprived of the said right without following the due process of law.

FINDINGS

4. The first question which cropped up before this Court is as to whether Section 91 can be invoked by the accused respondent or not ?

4.1 In a different context where the apex Court was considering the right of an accused to invoke section 91 for obtaining documents in support of his defence at the stage of framing of charge, the apex Court had an occasion to deal with the scope and ambit of section 91 which is evident from Para 25 and Para 8 of the judgments in the cases of Debendra Nath Padhi (supra) and Nitya Dharmananda (supra), respectively. Para 25 and Para 8 are reproduced herein below:-

“25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is “necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code”. The first and foremost requirement of the section is about