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HIGH COURT OF DELHI
JUDGMENT
CENTRAL BUREAU OF INVESTIGATION..... Petitioner
For the Petitioner : Mr. Nikhil Goel, SPP for CBI with Mr. Kartik Kaushal, Mr. Naveen Goel, Mr. Adithya Koshy Roy and Ms. Sidhi Gupta, Advocates.
For the Respondent : Ms. Manisha Bhandari, Advocate with
Mr. Omkar Shrivastava, Mr. Divyadeep Chaturvedi, Mr. Dhruv Chandra and
Mr. Ayush Jain, Advocates.
Mr. Ankur Mittal, Advocate for Complainant.
[ The proceeding has been conducted through Hybrid mode ]
1. This is a criminal miscellaneous petition filed under Section 482 Cr.P.C., 1973 on behalf of the CBI seeking setting aside of the order dated 26.11.2022 pased by the Special Judge, PC Act, CBI-18, Rouse Avenue District Court, New Delhi, whereby the learned Special Judge had dismissed the application under Section 91/92 of the Cr.P.C., 1973.
2. By way of the application under Section 91/92 Cr.P.C., the petitioner sought the preservation of the call records. They sought the following prayers:- “In view of the above-mentioned facts and circumstances, it is most humbly prayed that the Call Detail Records of mobile numbers 9711469933 (PW-07 Shashank Garg @ Meetu) and 8375034700 (PW-14 Rahul Chaudhary) and landline numbers 0120-2763016, 0120-2763022, 0120-2763088, 0120-2763089, 0120-2985812, 0120- 2985813, 0120-2985814, 0120-2985815 may kindly be ordered to be sought and preserved from the respective mobile service providers i.e. Airtel, Reliance JIO and BSNL, respectively, in order to verify the above mentioned facts as stated by the reliable source, in the interest of justice”
3. By way of the impugned order, the learned Special Judge had dismissed the application on the ground that the petitioner could have lodged an FIR under Section 195A of the IPC, 1860, which contemplates punishment of imprisonment up to 7 years and proceed to take appropriate steps in that particular case, if so filed.
4. Learned Special Judge was under the impression that the petitioner herein is delaying the proceedings on one account or the other.
5. Mr. Nikhil Goel, Learned SPP appearing for the petitioner submits that the two witness, namely, PW-7 and PW-14, who were hitherto-before, in the statement under Section 164 Cr.P.C., 1973, had corroborated and supported the version of the prosecution. However, according to learned counsel, due to a threat issued by the respondent from the jail through the jail phone to the said witnesses, the witnesses subsequently turned hostile.
6. Learned counsel submits that, this is apparent by the fact that soon after such calls, the witnesses had turned hostile.
7. Learned counsel further submits that in contradistinction to the aforesaid, PW-5, who was threatened by the family members of the respondent, still continued to support the case of the prosecution. Learned counsel submits that in fact PW- 5 had sent an email to them informing petitioner of such threat however, did not succumb to such threat.
8. Learned counsel further submits that apart from the fact that the witnesses were threatened, the reason for filing such an application was to seek transfer of the respondent from Dasna Jail, Ghaziabad, Uttar Pradesh to Tihar Jail at New Delhi, vide application dated 28.08.2022.
9. The present application was moved only to gather enough evidence and to support the application seeking transfer of the respondent from Dasna Jail, to Tihar Jail.
10. On that basis, learned counsel submits that the application under Sections 91/92 of the Cr.P.C. was filed with justified reasons, which have been rejected on erroneous justification by the learned Special Judge.
11. Learned SPP relies upon the judgment in Special Police Establishment vs. Umesh Tiwari to support his arguments.
12. Per contra, Ms. Manisha Bhandari, learned counsel appearing for the respondent refers to her reply to the present application, to submit that the witnesses, particularly witness PW-7 is a next door neighbor, which is an admitted fact.
13. Learned counsel submits that the witness is a childhood friend of the respondent and in case, if any such threat was to be extended, there was no requirement for the respondent to even make a call. The family members, who are residing next doors to the said witness could have threatened the witness to give a hostile statement.
14. Ms. Bhandari, learned counsel submits that the entire exercise appears to be only targeting the respondent as and when the respondent files an application seeking enlargement on bail. In fact, Ms. Bhandari, learned counsel also refers to the RTI reply received from the Dasna Jail administration, to submit that according to the reply at point 3, the jail itself had categorically stated that the respondent has not had conversations on mobile Nos. 8375034700 and 9711469933 through any facility being made available by the jail administration to the prisoners, during the period which they have been detained in the jail.
15. That apart, Ms. Bhandari, learned counsel also submits that the question of the petitioner making any such request by way of the application to the learned Special Judge, does not arise unless they have first exhausted the request being made to the Jail Authorities or the persons to whom the petitioner is stated to have allegedly approached or threatened.
16. Ms. Bhandari refers to the chart, which has been made a part of the reply, to submit that the filing of such applications unerringly coincide with the dates when the application is filed by the respondent to seek enlargement on bail.
17. Ms. Bhandari, learned counsel submits that the applications filed by the petitioner are not innocuous and appears to be mala fide and only to target the right of the respondent to seek enlargement on bail from the courts.
18. Moreover, Ms. Bhandari, learned counsel submits that the exercise of filing this application under Sections 91/92 Cr.P.C. by the petitioner, does not have any connection or nexus or co-relation to any of the offences as alleged against the respondent and are empty exercise only to delay as also to prejudice the bail applications being filed by the respondent.
19. That apart, Ms. Bhandari, learned counsel submits that the petitioner has made up false averments in the application, whereby the examination in respect of PW-14, to submit that to give a flimsy excuse as to why the said witness had not turned up for examination. In fact, according to Ms. Bhandari, learned counsel, the alleged eye-witness admittedly has never been threatened at all by the respondent, thus the need to threaten PW-7 and PW-14 does not even arise.
20. On that basis, Ms. Bhandari, learned counsel submits that the learned Special Judge has appropriately dealt with the application and dismissed the same. She further prays that the present petition be also dismissed.
21. This Court has considered the arguments of the learned counsel appearing for the parties and perused the impugned order and the documents annexed thereto.
22. This Court is of the considered view that the prayer made in the application seeking preservation of records of certain mobile numbers could have been allowed by the Special Judge if not for the purposes of using them at the time of consideration of the bail application, but for the purposes of entertaining the application seeking transfer of the respondent from Dasna Jail to Tihar Jail.
23. The submissions of Mr. Goel, learned SPP appearing for the petitioner with respect to the application being allowed for the purposes of seeking transfer of the respondent from Dasna Jail to Tihar Jail appears to be justified.
24. Learned counsel for the petitioner has been able to ascertain from relevant sources that the respondent has been using the different landline numbers installed inside the premises of District Jail, Dasna, Ghaziabad, UP to contact and threaten the witnesses.
25. According to the averments made in the petition particularly, in para 9, 10, 11 and 12, the petitioner is seeking to establish the connection between the phone call records emanating from the Dasna Jail and being received by PW-7 and PW-14 on their respective mobile numbers. It would be apposite to extract the said paragraphs below:-