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HIGH COURT OF MADHYA PRADESH
MCRC 8307/2018
Ranjit vs. State of MP
Gwalior, dtd. 22/03/2018
Shri Samar Ghuraiya, counsel for the applicant.
Shri Devendra Chaubey, Public Prosecutor for the
respondent/ State.
This application under Section 482 of CrPC has been filed
against the order dated 25/01/2018, passed by 10 th Additional
Sessions Judge, Gwalior in Special Sessions Trial No.62/2017,
by which the application filed by the applicant under Section 91
of CrPC, has been rejected.
The necessary facts for the disposal of the present
application in short are that earlier, at the time of framing of
charges, the applicant had filed a similar application under
Section 91 of CrPC seeking a direction for production of call
details as well as the details of messages exchanged between
two mobile SIM Nos.7067214236 and 7067709395. The said
application was dismissed by the trial Court by order dated
02/05/2017 on the ground that the documents of defence
cannot be considered at the time of framing of charges.
Being aggrieved by the order of the trial Court, the
applicant has filed a revision before this Court which was
registered as Criminal Revision No.831/2017. In the
meanwhile, another application was filed under Section 91 of
CrPC, seeking the above-mentioned direction, which was once
again dismissed by the trial Court by order dated 25/01/2018.
Since the order dated 25/01/2018 was not challenged by the
applicant and in view of the subsequent order passed by the
trial Court, the revision filed against the order dated
02/05/2017 had become infructuous for all practical purposes,
therefore, the counsel for the applicant sought permission from
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this Court to withdraw Criminal Revision No.831/2017, with
liberty to assail the order rejecting the subsequent application
filed under Section 91 of CrPC. Criminal Revision No. 831/2017
was accordingly dismissed as withdrawn, with the aforesaid
liberty.
Hence, this application has been filed against the order
dated 25/01/2018 passed by 10th Additional Sessions Judge,
Gwalior in Special Sessions Trial No.62/2017, by which the
application filed under Section 91 of CrPC has been rejected.
The applicant is facing trial for offence under Sections 376(1),
506(II) of IPC.
According to the prosecution’s case, about a year back,
the prosecutrix developed friendship with the applicant and
from thereafter, they became friends. Even the applicant used
to visit her house and she also used to go out with the
applicant. On the date of incident, the prosecutrix was all alone
in the house as her mother and brother were not in the house.
The prosecutrix requested the applicant to go back as she is
alone in the house, but he did not agree. By taking advantage
of the fact that the prosecutrix is all alone, the applicant
against the consent of the prosecutrix and contrary to her
wishes, committed rape on her. When her mother and brother
came back to the house, the entire incident was narrated by
the prosecutrix to her mother. Her mother, thereafter, called
the applicant for marrying the prosecutrix, but the applicant
refused to do so. Accordingly, the FIR was lodged.
By filing an application under Section 91 of CrPC, the
applicant has prayed for a direction for submitting an
information to the effect that in whose names two Mobile SIM
Nos.7067214236 and 7067709395 have been issued and the
call details between 26/10/2016 to 04/11/2016 were also
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sought, including the tower locations as well as the details of
the messages. The trial Court rejected the application on the
ground that the documents as called by the applicant, are not
necessary for the just decision of the case, as the applicant
failed to point out that for what purpose, he wants to call the
said documents.
Challenging the order passed by the trial Court, it is
submitted by counsel for the applicant that he has placed
whatsapp conversations which had taken place between the
applicant and the prosecutrix and from those conversations, it
is clear that the prosecutrix had never objected to the physical
relations, which the applicant is alleged to have with the
prosecutrix, on the date of incident. Thus, it is submitted by
the counsel for the applicant that in fact, the applicant has
been falsely implicated and no incident of the nature as alleged
by the prosecutrix, had ever taken place. In support of his
contentions, the counsel for the applicant has also relied upon
the judgment passed by Rajasthan High Court in the case of
Neelesh Jain vs. State of Rajasthan, reported in (2006)
CrLJ, 2151.
Per contra, it is submitted by the counsel for the State
that the whatsapp chart conversations of the call details as
sought by the applicant, are not necessary for the purpose of
trial as it is the case of the prosecutrix herself, that she and the
applicant were good friends and the applicant used to visit her
house frequently.
Heard the learned counsel for the parties.
Section 91 of CrPC reads as under:-
”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
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necessary or desirable for the purpose of any
investigation, inquiry, trial or other proceedings 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.”
From the plain reading of this Section, it is clear that in
order to seek any direction from the third person to produce
any document or any other thing, the applicant must prima
facie show that the said documents are necessary or desirable
for the purpose of trial.
In the present case, the contention of the applicant is that
the call details of two Mobile SIM Nos.7067214236 and
7067709395 be requisitioned.
These details are not necessary because it is the case of
the prosecution itself that the applicant and the prosecutrix
were known to each other and the applicant also used to visit
the house of the prosecutrix, thus, the friendship of the
applicant with the prosecutrix is not in dispute. So far as the
whatsapp conversations between the applicant and the
prosecutrix are concerned, a typed copy of the same has been
placed on record. According to the prosecution case, the
incident had taken place around 02:30 pm, and the whatsapp
conversations also disclose that there was no conversation
between 01:54 pm to 03:28 pm, thus, the presence of the
applicant in the house of prosecutrix at 02:30 pm is possible.
This whatsapp conversation which has been placed on record
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directly supports the contention of the prosecutrix that the
applicant had visited her house at 02:30 pm and finding her
alone in the house he had committed rape on her. So far as the
subsequent whatsapp conversations are concerned, reluctance
on the part of the prosecutrix to talk to the applicant is visible.
Even the applicant in the whatsapp conversation which took
place on 26/10/2016 at 11:21 pm had projected the
prosecutrix as his wife. On 26/10/2016 at 11:22 pm the
prosecutrix had even gone to the extent of saying that she did
not want to talk with him. The whatsapp conversation which
has been placed on record, in fact, clearly indicates that the
prosecutrix was not happy with the applicant. The applicant
has failed to indicate that as to how the call details which were
sought by the applicant by filing an application under Section
91 of CrPC, are necessary or desirable for the just decision of
the trial.
Under these circumstances, this Court is of the considered
opinion that the trial Court did not commit any mistake in
rejecting the application filed by the applicant under Section 91
of CrPC. Accordingly, the order dated 25/01/2018 passed by
10th Additional Sessions Judge, Gwalior in Special Sessions Trial
No. 62/2017 is hereby affirmed.
The application fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
MKB
Digitally signed by MAHENDRA KUMAR BARIK
Date: 2018.03.23 17:03:44 +05’30’
