Code of Criminal Procedure, 1973 – ss. 91, 311 – Challenge to the dismissal of applications filed by the prosecution for the production of the decoding registers and for summoning of the witnesses of the cellular companies – Held: The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower – Summons to produce a document or other thing u/s.91 can be issued where Court finds that production of the document or thing “is necessary or desirable for the purpose of any investigation, trial or other proceeding” under CrPC – Power u/s.311 to summon a witness is conditioned by the requirement that the evidence of the person who is sought to be summoned appears to the Court to be essential to the just decision of the case – In the instant case, the nodal officers of the cellular companies were examined, they stated that location of call made by the mobile number is shown by codes and location can be stated by decoding the same – Hence, decoding register is relevant – It is a crucial piece of evidence – Summoning of witness for the purpose of producing register was essential. Allowing the appeal, the Court
HELD: 1. In the present case, the application of the prosecution for the production of the decoding registers is relatable to the provisions of Section 91 CrPC. The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found. The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower. The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under ORS.
Section 91 on the one hand and Section 311 on the other. The summons to produce a document or other thing under Section
91 can be issued where the Court finds that the production of the document or thing is necessary or desirable for the purpose of any investigation, trial or other proceeding under the CrPC. As already noted, the power under Section 311 to summon a witness is conditioned by the requirement that the evidence of the person who is sought to be summoned appears to the Court to be essential to the just decision of the case. [Para 35][166-C-D; 167-A-B]
2. The relevance of the decoding register emerges from the statement of PW-41. Hence, the effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. In terms of the provisions of Section 311, the summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case. [Para 37][167-F]
3. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution‘s case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. [Para 38][167-G-H]
4. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa, while reiterating Rajendra Prasad, the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In the present case, the importance of the decoding registers was raised in the examination of PW41. Accordingly, the decoding registers merely being additional documents required to be able to appreciate the existing evidence in form of the call details which are already on record but use codes to signify the location of accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. The production of the decoding registers fits into the requirement of being relevant material which was not brought on record due to inadvertence. [Para 40][168-F; 169-C]
5. For the above reasons, this Court has come to the conclusion that the decision of the High Court which is impugned in the appeal is unsustainable. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose is allowed. [Para 44][173-C, D-E] Zahira Habibulla H. Sheikh v. State of Gujarat (2004)
4 SCC 158 : [2004] 3 SCR 1050; Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110; Rameshwar Dayal v. State of U.P. (1978) 2 SCC 518 : [1978] 3 SCR 59; Mohanlal Shamji Soni v. Union of India (1991) 1 Supp SCC 271 : [1991] 1 SCR 712 - relied on.
Shiv Kumar v. Hukam Chand (1999) 7 SCC 467 : [1999]
2 Suppl. SCR 81 and Dhariwal Industries Ltd. v. Kishore Wadhwan (2016) 10 SCC 378 : [2016] 5 SCR 212 – distinguished.
Swapan Kumar Chatterjee v. Central Bureau of Investigation (2019) 14 SCC 328 : [2019] 3 SCR 713; Mina Lalita Baruwa v. State of Orissa (2013) 16 SCC
173 : [2013] 16 SCR 788; J.K. International v. State (Govt. of NCT of Delhi) (2001) 3 SCC 462 : [2001] 2 SCR 90; Manu Sharma v. State (NCT of Delhi) (2010)
6 SCC 1 : [2010] 4 SCR 103; State of W.B. v. Tulsidas Mundhra (1963) 1 Suppl. SCR 1; Jamatraj Kewalji Govani v. State of Maharashtra (1967) 3 SCR 415; Masalti v. State of U.P. (1964) 8 SCR 133; Rajeswar Prosad Misra v. State of W.B. (1966) 1 SCR 178; R.B. Mithani v. State of Maharashtra (1971) 1 SCC 523; Zahira Habibullah Sheikh (5) v. State of Gujarat (2006)
3 SCC 374 : [2006] 2 SCR 1081; Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. (2008) 11 SCC 108 : [2008] 11 SCR 571; Karnel Singh v. State of M.P. (1995)
5 SCC 518 : [1995] 2 Suppl. SCR 629; Paras Yadav v. State of Bihar (1999) 2 SCC 126 : [1999] 1 SCR 55; Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517 : [1998] 2 SCR 1097; Amar Singh v. Balwinder Singh (2003) 2 SCC 518 : [2003] 1 SCR 754 – referred to. ORS.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.