Shishir Kumar Sinha vs Central Bureau of Investigation

B.D. Rathi, J.—This petition has been preferred, u/s 482 of the Code of Criminal Procedure (for short "the Code"), challenging the order dated 29.5.2013 passed by the Special Judge (for CBI cases), Jabalpur in Special Case No. 01/2013, whereby the application filed by the petitioner, u/s 91 of the Code, was rejected. Brief facts of the case are that on 25/11/2012 complainant Kaustubh Verma, Proprietor of "Skolars" Coaching Classes, 428, New Adarsh Nagar, Jabalpur, lodged a written complaint against the petitioner, who at the relevant time was posted as Inspector, Preventive Branch, Service Tax, Central Excise, Jabalpur, to the effect that two months back, petitioner had visited his Coaching Centre and apprised him to obtain service tax registration, as well as, to file regular returns. After few mobile conversations between them, in the first week of November 2012, the petitioner again contacted the complainant and demanded a total bribe of Rs. 2 lacs threatening that on failure to pay the same, a service tax raid would be conducted at the coaching premises by Service Tax Department of Central Excise. Pursuant to the said information, a trap was laid and co-accused Deepak Dwivedi was caught red handed taking bribe of Rs. 50,000/- on behalf of the petitioner. During investigation, conversations between the two were also recorded.

Learned counsel for the petitioner submitted that the letters sent for obtaining sanction from the CBI were not filed along with the charge-sheet. Moreover, call detail records of the two mobile numbers seized from the possession of complainant for the period 1/7/12 to 31/1/13 were also necessary for effective adjudication of the case to establish the conversations between the petitioner and the complainant. According to him, call details of two independent witnesses viz. Kundan Kumar Mishra and Piyush Prakash, were also necessary in the facts and circumstances of the case.

Learned Standing Counsel opposed the prayer and submitted that no interference was warranted under the inherent powers with the impugned order.

A bare perusal of the impugned order reveals that the application was rejected on the ground that details of calls between complainant and the petitioner for the relevant period i.e. 1/11/2012 to 25/11/12 were already filed with the charge-sheet and call details of independent witnesses were not necessary as only the conversation taken place between petitioner and the complainant had to be looked into. The Court below also held that details of calls between the complainant and the petitioner for the period 1/7/12 to 31/1/13 were not relevant for the adjudication of the case.

Having regard to the arguments advanced by the parties, impugned order, charge-sheet and other documents available on record were perused.

Relevant Section 91(1) of the Code reads as under:--

Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

From a bare reading of the above provision, it is clear that whether a particular document should be summoned or not, is essentially in the discretion of the trial Court and the trial Court is not bound to requisition the same on the application of the accused. Except for a very good reason, the High Court should not interfere with the discretion (See Assistant Collector of Customs and Another Vs. L.R. Malwani and Another,

Besides this, the petitioner can always requisition his call details from his Service Provider for the period in question and produce the same in defence, as he used to himself receive the calls on his Mobile. Further, to prove that the independent witnesses were in constant touch with the CBI and were pet witnesses, he can lead some other evidence as well, in defence and cross-examine the said witnesses. So far as documents forming basis of sanction are concerned, it is for the prosecution to determine the manner in which it wants to prove its case and the petitioner is always entitled to get the benefit, in accordance with law, out of lapse, if any, in the order of sanction.

The reasons given by the learned trial Court in support of its order are good reasons.

The petition, therefore, fails and is, accordingly, dismissed with no orders as to costs. Copy of the order be sent to the trial Court for information and compliance.