1 2025:CGHC:15820 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1191 of 2025 1 - Suresh Chandravanshi S/o Krishna Chandravanshi Aged About 45 Years R/o Kanabhaira, P.S. Pipariya, District Kabirdham Chhattisgarh. 2 - Naresh Chandravanshi S/o Krishna Chandravashi Aged About 42 Years R/o Kanabhaira, P.S. Pipariya, District Kabirdham Chhattisgarh. 3 - Sunil Chandravanshi S/o Suresh Chandravanshi Aged About 22 Years R/o Kanabhaira, P.S. Pipariya, District Kabirdham Chhattisgarh. 4 - Vikki Chandravanshi S/o Naresh Chandravanshi Aged About 19 Years R/o Kanabhaira, P.S. Pipariya, District Kabirdham Chhattisgarh. 5 - Jitendra Chandravanshi S/o Baldau Chandravanshi Aged About 23 Years R/o Kanabhaira, P.S. Pipariya, District Kabirdham Chhattisgarh. 6 - Baldau Chandravanshi S/o Kangla Chandravanshi Aged About 60 Years R/o Kanabhaira, P.S. Pipariya, District Kabirdham Chhattisgarh. ... Petitioners versus 1 - State Of Chhattisgarh Though P.S. Pipariya, District Kabirdham Chhattisgarh. 2- Station House Officer, P.S. Pipariya, District Kabirdham, Chhattisgarh 3- Superintendent of Police, District Kabirdham, Chhattisgarh ... Respondents (Cause title taken from Case Information System) VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.16 17:58:00 +0530 2 For Petitioners : Mr. Shivam Agrawal, Advocate For Respondents/State : Mr. Neeraj Sharma, Deputy Advocate General Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 03/04/2025 1. Present is a Criminal Miscellaneous Petition filed by the petitioners under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned order dated 08.01.2025, passed by learned Additional Sessions Judge, Kabirdham, in Sessions Case No. 67 of 2023, whereby an application filed by the petitioners under Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been dismissed. 2. The brief facts of the case are that, the petitioners are the accused persons in the Sessions Trial No. 67 of 2023, pending before the learned Additional Sessions Judge, Kabirdham. It is alleged against the accused persons that on 29.08.2023, at about 12:00 in the noon, they committed murder of the deceased Gendram Yadav. The accused persons have taken defence that they were not present on the spot at the time of incident and the accused Suresh Chandravanshi had gone to village Indauri from Patharra to take centering material, the accused Naresh Chandravanshi had gone to village Jhalmala and returned on the next day, the accused Sunil Chandravanshi had gone to his matrimonial house at village Chacheri to left his wife for Rakshabandhan festival, the accused Jitendra Chandravanshi had gone to village Vicharpur to take 3 Ayurvedic treatment of fracture of his hand, the accused Vicky Chandravanshi was working in his house, the accused Baldau was working in his field along with his other family members. It is also averred in the application that they have tried to obtain their call details report from the service provider of mobile company, but they denied to give their call detail report. The accused persons are required their call detail report in their defence and proved their location at the time of alleged incident an therefore, the prosecution may be directed to produce the call details and location report of the mobile phones of the accused persons. 3. The accused persons have filed their application under Section 94 of Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding Section 91 of CRPC) on 10.09.2024. The said application was decided on 08.01.2025 and the learned trial Court has dismissed the application holding that the application cannot be allowed to collect evidence and under Section 94 of Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 91 of CRPC) can be entertained only with respect to the documents, which are in possession of the prosecuting agency. The said order dated 08.01.2025 is under challenge in the present petition. 4. Learned counsel appearing for the petitioners would submit that the prosecution agency is under bounden duty to place documents and submit the same in compliance of Section 173 of CRPC. The prosecution agency cannot withheld any material fact or evidence, which accrues in favour of the accused and such withholding cannot be fair and would be in violation of Article 14 of the Constitution. The 4 accused persons are deprived from fair trial. Relying upon the judgement passed by the Hon'ble Supreme Court in the matter of “Varsha Garg v. State of Madhya Pradesh and Others” 2022 SCC Online SC 986 and order dated 08.04.2022, passed by coordinate Bench of this Court in CRMP No. 501 of 2022 (Royden Harold Buthello v. State of Chhattisgarh), he prayed for the relief as claimed in the petition and direction to the respondents to submit the call detail reports and location pertaining the mobile numbers of the accused persons as mentioned in the application. 5. On the other hand, learned counsel for the State opposes and has submitted that the order passed by the learned trial Court is absolutely justified. Section 94 of Bharatiya Nagarik Suraksha Sanhita, 2023 is provided only with respect to the documents which are available with the prosecuting agency, but the documents which are not the part of the investigation, cannot be directed to produce in the case or to supply to the accused persons, even the investigation cannot be directed to be in particular manner. The petitioners are claiming the investigation in a particular direction, which cannot be ordered in the present case. The application cannot be entertained to collect the evidence, therefore, the impugned order is justified and does not warrant any interference. 6. I have heard learned counsel for the parties and perused the materials annexed with the petition. 7. From perusal of the application filed by the petitioners on 10.09.2024, which is made as a part of the present petition as Annexure P-2, it 5 reflects that the petitioners are claiming for calling the call details report of the mobile phones of the accused persons for the month of August, 2023. The said call details report is not the part of the charge sheet and from the order impugned it also reflects that there is no investigation with respect to the said call details. It is the defence taken by the accused persons during the cross-examination of the prosecution witnesses. During the investigation, the prosecution agency has find the sufficient evidence against the petitioners/ accused persons and has filed the charge sheet and during the trial of the case the accused persons claiming for filing of the call details report of their mobile phones, which is not the part of the charge sheet or even not available in the case diary as there is no investigation to that effect. 8. In the matter of “Popular Muthiah v. State Represented by Inspector of Police” 2006 (7) SCC 296, the Hon'ble Supreme Court in Para 48 has observed that:- “48. The High Court while passing the impugned judgment did not bear the said principles in mind. It went beyond its jurisdiction in directing the prosecution of the Appellant before us. In a case of this nature, where a superior court exercises its inherent jurisdiction, it indisputably should remind itself about the inherent danger in taking away right of an accused. The High Court should have been circumspect in exercising the said jurisdiction. When a power under sub-section (8) of Section 173 of the Code of Criminal Procedure is exercised, the court 6 ordinarily should not interfere with the statutory power of the investigating agency. It cannot issue directions to investigate the case from a particular angle or by a particular agency. In the instant case, not only the High Court had asked reinvestigation into the matter, but also directed examination of the witnesses who had not been cited as prosecution witnesses. It furthermore directed prosecution of the Appellant which was unwarranted in law.” 9. The claim of the petitioners is virtually a direction to the prosecuting agency to collect the evidence with respect to the defence of the accused persons and to produce it in the case, which is presently not available in the charge sheet or even the case diary. It is not the part of the investigation, in which the call detail reports were called. It is the accused persons, who disclosed their mobile phones in their defence during the cross-examination of the witnesses and claimed that they were not present on the spot, but were somewhere else. 10. The judgement of Varsha Garg (supra) and Royden Harold Buthello (supra) are based on different facts and considerations, therefore, could not help the petitioners in the present case. 11. After due appreciation of the material produced in the present petition as well as the law laid down by the Hon'ble Supreme Court and coordinate Bench of this Court, I do not find any good ground to interfere with the petition and to direct the prosecuting agency to collect the call detail reports of the mobile phones of the accused persons and to produce in the case. In the opinion of this Court, such 7 direction cannot be made in the facts and circumstances of the present case. 12. In the result, the petition fails and is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge ved