ORDER

This criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 has been filed assailing the order dated 19.10.2022 passed by III Additional Sessions Judge, Shahdol (M.P.) in Sessions Trial No.167/2022 whereby accused application under Section 91 Cr.P.C. praying to direct Cyber Cell of the police to make the accused available the print messages of the mobile having Sim Nos.700073308662, 8878230057 and 8959128029 has been dismissed by the trial Court.

2. Learned counsel for the applicant has submitted that accused is facing trial for commission of offence under Sections 120-B, 346/120-B, 376-D/120-B, 377/120-B, 302/120-B and 201/120-B of IPC. It is further submitted that accused Abdul Shadab Usmani was having consensual relations with the deceased. He is charged with allegations that he along with other accused persons hatched conspiracy and committed gang-rape and unnatural sex with the deceased and committed her murder. It is submitted that applicant/accused had moved an application under Section 91 of the Cr.P.C. before the Court of III ASJ, Shahdol stating that deceased was in habit of making call to him and was also in habit of doing chat on whats-app with him. Deceased was feeling herself in trouble, so she often use to send him messages. She was being tortured by her family members as she had lost her job. All these chats are available in the whats-app of the deceased. Therefore, it was prayed that Cyber Cell of the police be directed to make him available the print of the aforesaid chat messages.

3. It is submitted by learned counsel that learned trial Court without application of mind has dismissed his application on the ground that if any such messages were sent to him by the deceased, same should be available in his mobile also. There is no possibility of tempering with the material available in the mobile of the deceased. He is at liberty to produce the whats-app chat etc. in his defence at proper stage of trial. Learned counsel for the applicant has submitted that learned trial Court was not justified in dismissing the application as accused has full right to produce the same in his defence. Such chat is also required to put questions to the prosecution witnesses whenever they appear for tendering their evidence. As such, he has prayed to set aside the impugned order and to direct the police and prosecution agency to make available the print of the messages of chat available in deceased's mobile.

4. On the other hand, learned counsel for the State has opposed the prayer and has submitted that accused has no right to do so for the reason that Section 91 is not made for the benefit of the accused and benefit of Section 91 cannot be invoked during early stage of trial and for this learned counsel for the State has relied upon the decision of the Supreme Court in State of Orissa vs. Debendra Nath Pathi (2005) 1 SCC 568 and in the case of Nitya Dharmananda vs. Gopal Sheelum Reddy AIR 2017 SC 5846. Hon'ble Apex Court in the case of Debendra Nathi Pathi and Nitya Dharmananda (supra) considered 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 Supreme Court considered the scope and ambit of Section 91. In the case of Debendra Nathi Pathi and Nitya Dharmananda (supra) in para 25 and 8 Hon'ble Apex Court held as under:

"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 the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stag