High Court upholds trial court's order summoning mobile tower data and CCTV under S.91 CrPC; petition dismissed

A Single-judge bench of Justice Sudesh Bansal heard a Criminal Miscellaneous Petition under Section 482 CrPC filed by the complainant challenging an order of the Sessions Judge, Tijara, which directed the SHO to procure mobile tower location data of the complainant and CCTV footage from an SBI ATM on the accused’s application under Section 91 CrPC. The petition sought quashing of the trial court order dated 27.02.2020 and sought a direction that the material supplied through court not be used by the accused during prosecution evidence.

The High Court held that the trial court did not commit any illegality or jurisdictional error in invoking Section 91 CrPC to summon the mobile tower location and CCTV footage after submission of the charge-sheet. The court noted earlier authorities emphasizing investigative duty, observing that “Investigation is a delicate painstaking and dexterous process. Ethical conduct is absolutely essential for investigative professionalism.” The Court, in its reasoning, observed: “It is no more res integra that the paramount object behind Section 91 CrPC is to ensure that no cogent material/ relevant piece of evidence having connection to the offence/ issue, should be left undiscovered and unconsidered in the pursuit of truth during investigation, inquiry, trial or other proceedings. The ultimate goal/ motto of investigation/ trial is to unearth the truth and to discover the complete, correct and true fact so that no one may left in dark. Therefore, in order to discover the truth and to achieve the final goal of fair and impartial investigation/ trial, the provision of Section 91 CrPC can be resort to by the Court or the Police at any stage of the investigation, inquiry, trial or even in other proceedings.” The court therefore dismissed the petition and left open any objection by the prosecution before the trial court about the stage at which the accused may place the material on record.

Background The dispute arose from FIR No.228/2019 dated 20.08.2019 at Tapukda Police Station, Alwar, in which the complainant Ratti alleged that six persons opened fire at about 3:00 p.m.; his brother Razzak died and accused Sakir Ali was named among others. Police filed a charge-sheet against accused Nos.2–5 for offences including Sections 302, 201 and 120-B IPC and offences under the Arms Act. After charge-sheeting and at the stage “before framing charges”, the accused filed an application (28.01.2020) seeking summons under Section 91 CrPC for (i) tower location of the complainant’s mobile (No. 9982671312) on 20.08.2019 and (ii) CCTV footage of the SBI ATM opposite Police Line, Alwar, to establish a plea of alibi for accused-Sakir Ali.

The trial court allowed the application and directed the SHO to procure the material, observing that the Investigating Officer ought to have collected such material during investigation and relying on authority that investigators must bring out “the real unvarnished truth.” The complainant challenged that order before the High Court contending that an accused could not invoke Section 91 at the pre-charge stage to collect defence material and that defence evidence should be led by the accused in due course.

Justice Bansal analysed Section 91 CrPC and relevant precedents, including the High Court of Delhi’s view in Shakuntala and the Supreme Court in Neelesh Jain that the defence must be provided material collected during investigation so a proper defence may be constructed from day one. The court noted a Division Bench of the Madhya Pradesh High Court (Umesh Tiwari) which held that while an accused could not invoke Section 91 during pendency of investigation, after filing of the charge-sheet the proceedings became multilateral and the accused could invoke Section 91 before the court. Applying these principles, the High Court found the application maintainable because it was filed after the charge-sheet and the material sought was cogent, necessary and liable to be lost if not preserved. The court further observed that the prosecution had not challenged the trial court order and that any contention about when the accused could use the material could be raised before the trial court. The petition was dismissed. Interim and other pending applications were disposed of.

Case Details: Case No.: S.B. Criminal Miscellaneous (Petition) No. 3842/2020 (reported as [2024:RJ-JP:5798]) Case Title: Ratti S/o Aseena v. State of Rajasthan & Ors. Appearances: For the Petitioner(s): Mr. R K Mathur, Sr. Adv; Mr. Kritin Sharma For the Respondent(s): Mr. Atul Sharma, Public Prosecutor; Mr. Rahul Tiwari