ISHWAR DASS Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Petitioner, who is facing proceedings in Sessions Trial No. 50/16 pending before Special Judge-II, Kullu, Himachal Pradesh, preferred an application under Section 91 CrPC, averring therein 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:-

(2.) 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. In support of aforesaid prayer having been made by way of application under Section 91 CrPC, petitioner also invited attention of the court below to the judgment rendered by High Court of Delhi in Suresh Kalmadi vs. CBI, Crl. M.C. No. 2143/2015 decided on 25.2015 and claimed that the power under Section 91 is to discover truth and to do complete justice to the case and, as such, discretion vested in the Court must be exercised judiciously while keeping in mind Constitutional mandate and purpose of Section 91.

(3.) 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.