Back
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
SHEEL NAGU, SUNITA YADAV, JJ.
Special Police Establishment – Petitioner
Versus
Umesh Tiwari and Another – Respondents
M. Cr. C. No. 60404 of 2021
Decided On : 21-01-2022
Inherent Powers - Section 91 Cr.P.C. - Call Details - 2005 (1) SCC 568, 2018 (2) SCC 93, K.S. Puttaswamy vs. Union of India, 2017 (10) SCC 1, Mazdoor Kisan Shakti Sangathan vs. Union of India, 2018 (17) SCC 324, Arnab Ranjan Goswami vs. Union of India, 2020 (14) SCC 12 - Section 91 of Cr.P.C.
Fact of the Case:
The prosecution challenged the order allowing the accused to invoke Section 91 Cr.P.C. for production of call details during the investigation. The accused argued that the prosecution failed to collect the call details, and the accused was compelled to step in. The complainant contended that the right to privacy was breached, and the accused had no role during the investigation.
Finding of the Court:
The court found that the accused cannot invoke Section 91 during the investigation, as it is a unilateral process. However, the court can invoke Section 91 at any stage of investigation, inquiry, trial, or other proceedings. The trial court's order allowing the accused to invoke Section 91 during the investigation was set aside, but the court granted liberty to the trial court to direct the investigating agency to consider the call details if necessary for the ongoing investigation.
Issues: The main issue was whether the accused could invoke Section 91 during the investigation, and the breach of the right to privacy of the complainant.
Ratio Decidendi: The court held that the accused cannot invoke Section 91 during the investigation, but the court or any stakeholder can invoke it at any stage of the proceedings. The trial court's order allowing the accused to invoke Section 91 during the investigation was set aside, but the court granted liberty to the trial court to consider the call details if necessary for the ongoing investigation.
Final Decision: The petition was allowed, and the impugned order was set aside with liberty to the trial court to direct the investigating agency to consider the call details if necessary for the ongoing investigation.
ORDER :
1. Inherent powers of this Court u/s 482 Cr.P.C. are invoked by the prosecution challenging the legality and validity of the order dated 07.10.2021 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 vs. Debendra Nath Padhi, 2005 (1) SCC 568 (Para 25) and in the case of Nitya Dharmananda vs. 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 27.02.2013 passed in M.Cr.C. No. 9274/2012 (Ajaz Khan and Others vs. State of M.P.) the order dated 21.08.2020 passed in M.Cr.C. No. 16227/2020 (Suryakant Patil vs. State of M.P.) as well as the decision reported in 2015 (2) MPWN 66 (Himmat Singh vs. CBN), 2017 (3) MPWN 71 (Renu Sharma vs. Atul Bhargav), 2015 SCC Online Delhi 9639 (Suresh Kalmadi vs. CBI).
3.3 Shri Kapil Duggal, learned counsel for the complainant relying upon the decisions in K.S. Puttaswamy vs. Union of India, 2017 (10) SCC 1 (Para 257 & 406), Mazdoor Kisan Shakti Sangathan vs. Union of India, 2018 (17) SCC 324 (Para 61) and Arnab Ranjan Goswami vs. 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:
The accused cannot invoke Section 91 during the investigation, but the court or any stakeholder can invoke it at any stage of the proceedings.
The main legal point established in the judgment is that accused persons are entitled to invoke Section 91 CrPC after the filing of the charge-sheet, and the trial Court has the jurisdiction to direc....
The right to seek document production under Section 91 of CrPC arises only at the defense stage, not during pre-charge proceedings.
The accused cannot invoke Section 91 CrPC to produce documents for defense at the charge framing stage; only prosecution materials are considered.
(1) Section 91 Cr.P.C. does not confer any right on accused to produce document in his possession to prove his defence.(2) Application under Section 91 Cr.P.C. at instance of accused would lie even a....
The accused does not have the right to invoke Sec. 91 of the CrPC for document production at the stage of framing charges; such rights are reserved for the defense stage of the trial.
At the stage of framing of charge, the court can only consider material produced by the prosecution. The accused cannot invoke Section 91 to prove innocence, unless material of sterling quality has b....
The right to a fair trial under Article 21 of the Constitution prevails over privacy concerns, necessitating the production of evidence under Section 91 Cr.P.C. for justice.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
