Dismissed

Hitesh Chawla v. State of U.P. and Another

Allahabad HC24 Jan 2023A482/38278/2022

Case brief

AI extract

What is this about?

This single-judge bench dismissed an intimation herein application for a fresh direction under Section 91 Cr.P.C. to collect additional material during investigation. The court held that at the framing of charge stage, it is for the prosecution to produce case diary material to frame charges, and the court has no discretion to direct investigation to collect such material.

What did the court decide?

The application challenging the refusal to direct production of call detail records and other material under Section 91 Cr.P.C. is dismissed.

Hitesh Chawla Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2023)

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Court No. - 64

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Case :- APPLICATION U/S 482 No. - 38278 of 2022

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Applicant :- Hitesh Chawla Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjeev Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Shri Sanjeev Kumar Singh, learned counsel for the applicant, learned AGA for the State and, Shri Aishwarya Pratap Singh, learned counsel for opposite party no.2.

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Challenge has been raised to the order dated 4.8.2022 passed by Additional District and Sessions Judge, Court no.2, Gorakhpur in Sessions Trial No. 782 of 2022 (State vs. Vijay Chawla & Ors). By that order, learned court below has rejected by the motion brought by the applicant under Section 91(1) Cr.P.C. at the instance of the accused persons. The accused persons had sought direction from the learned court below for production of call detail record and certain eyewitness accounts.

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Learned court below has refused to issue any direction under Section 91 Cr.P.C. on the reasoning that at the stage for framing of charge, no defence evidence may be allowed to arise.

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Learned counsel for the applicant states, the direction sought was to secure interests of a fair trial. The Investigating Officer ought to have himself collected that material and made it part of the case diary. Also, reference has been made to the language of Section 91 Cr.P.C. to suggest, that power may have been exercised by the learned court below even at the stage of framing of charge.

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On the other hand, learned AGA and learned counsel for opposite party no.2 would submit, the provision of Section 91 Cr.P.C. is not a right conferred on a party but a discretion vested in the Court to issue such direction as may be necessary or desirable in a particular case at a particular stage of proceeding. At present, the prosecution agency has completed the investigation and prayed to the learned court below to frame charges against the accused persons on the

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strength of material existing on the case diary. It is that material in the context of charge proposed to be framed that has to be examined. Therefore, the learned court below has not erred in neither considering it desirable nor necessary to issue the direction as prayed.

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Having heard learned counsel for the parties and having perused the record, insofar as it is not disputed that the charges have yet not been framed and the matter is before the learned court below for that purpose, it cannot be disputed, primarily, learned court below has to consider the case diary material brought by the prosecution and consider if and what charge deserves to be framed in the context of accused persons. The burden to establish existence of such material and to get charges framed is on the prosecution. At that stage, due appraisal has to be made of material relied upon by the prosecution.

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It is not for the accused persons to suggest, which further or other material ought to have been made part of the case diary. The burden of the prosecution is best left to be discharged by the prosecution agency in the manner it may deem fit. To that extent, matter remains between with the prosecuting agency and the learned court below.

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Then, the power under Section 91 Cr.P.C. is a power vested in the learned court below and not a right created to the parties. To the extent, the learned court below has not considered it necessary or desirable to issue any direction, no grievance may arise to the applicant at this preliminary stage of the proceedings. It is further left to the applicant to lead such evidence as may be necessary at the stage of defence evidence, if required.

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Accordingly, the present application fails and is dismissed .

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Order Date :- 24.1.2023 Prakhar

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Digitally signed by :- PRAKHAR SRIVASTAVA High Court of Judicature at Allahabad

Hitesh Chawla v. State of U.P. and Another

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Hitesh Chawla v. State of U.P. and Another

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