Crl. M.C. 2873/2015. Case: C B I Vs Dharambir Khattar. High Court of Delhi (India)

Case NumberCrl. M.C. 2873/2015
CounselFor Appellant: Mr. Sanjay Jain, ASG with Ms. Sonia Mathur & Mr. Sushil Kr. Dubey, Advs. and For Respondents: Mr. S.K. Rungta, Sr. Adv. with Mr. Varun Gupta, Mr. Prashant Singh & Mr. Jeewan Chandra, Advs.
JudgesSuresh Kait, J.
IssueCriminal Procedure Code - Sections 91, 207, 482; Indian Evidence Act, 1872 - Sections 123, 124; Indian Penal Code - Section 120B; Prevention of Corruption Act, 1988 - Section 13(2)(1)(d)
Judgement DateNovember 05, 2015
CourtHigh Court of Delhi (India)

Judgment:

Suresh Kait, J.

1. By way of the present petition, filed under Section 482 Cr.P.C. petitioner / CBI seeks setting aside of order dated 20.05.2011 thereby directing the CBI to produce the record containing the proposals sent to Ministry of Home Affairs seeking permission for interception of telephone calls.

2. Further seeks directions thereby setting aside of order dated 08.05.2015 read with order dated 15.05.2015 whereby the prayer made in the affidavit filed by the Director, CBI thereby seeking privilege under Section 123 and 124 of Indian Evidence Act, 1872 with regard to aforesaid documents has been dismissed by ld. Special Judge.

3. The present case was registered on 26.03.2003 against the accused persons and respondent herein under Section 120B IPC and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 on the basis of source information. Presently the case is pending trial in the Court of ld. Special Judge, CBI Rohini Courts, New Delhi and is at the stage of evidence of PWs.

4. Mr. Sanjay Jain, ld. ASG appearing on behalf of the petitioner, submitted that during the course of cross-examination of PW5 Mr. Navdeep Virk, respondent moved an application under Section 91 Cr.P.C. thereby seeking direction to CBI to produce certain documents / records submitted by the petitioner to the Ministry of Home Affairs in the form of seven proposals for obtaining orders / permission for interception of certain telephone calls of the accused persons. This was done after the above witness had deposed that "the proposals were top secret". Accordingly, the petitioner filed a reply to the aforesaid application stating therein that those documents have not been relied by the prosecution and are not relevant to the facts and circumstances of the case. However, the said application was allowed in terms of the impugned order dated 20.05.2011 and CBI was directed accordingly.

5. Mr. Jain further submitted that the authorization in connection with the electronic surveillance were obtained from the competent authority vide seven Top Secret Orders, each of which was valid for 90 days. These seven orders have been filed along with the chargesheet and copy of which have been supplied to the accused persons. After the impugned order dated 20.05.2011, Director, CBI filed an affidavit dated 23.07.2011, thereby claiming privilege under Sections 123 and 124 of Indian Evidence At 1872 on the ground that due to disclosure of the records mentioned above, public interest would suffer adversely. The said affidavit was pending consideration before the ld. Trial Court and finally vide order dated 08.05.2015 read with Order dated 18.05.2015, the request of the CBI seeking privilege was disallowed by the ld. Trial Court and directed them to make the records available to the accused / respondent in compliance of order dated 20.05.2011.

6. Ld. ASG further submitted that the documents in issue are top secret in nature and relates to the affairs of the State viz. maintenance of law and order, economic / social stability and provide corruption free society for which the State is committed and their disclosure will lead to contrary effect on the functioning of surveillance on the persons suspected to be acting in contravention of law and public interest will suffer.

7. Mr. Jain further submitted that the process of interception of telephone calls is used to keep the activities of suspects under surveillance which may or may not result into the registration of regular cases depending on the nature of conversation and evidence appearing during interception of calls of the suspected persons. Adequate secrecy is maintained in obtaining the order of competent authority for interception of telephone calls of suspected persons and subsequent interception in public interest. Moreover, this disclosure would definitely have an adverse effect on the functioning of the law enforcement / investigating agencies and ultimately would be detrimental to public interest. It will expose the "source" who furnishes such information.

8. To strengthen his arguments, ld. ASG has relied upon a case of Manjeet Singh Khera v. State of Maharashtra 2013 (9) SCC 276 whereby the Hon''ble Supreme Court held as under:

"We state at the cost of repetition that the prosecution has categorically taken the stand that they do not propose to rely upon the information passed on to the Anti Corruption Bureau leading to an open inquiry against the accused persons. We fail to see how the accused persons are prejudiced by non-disclosure of the name of the person who sent the complaint as well as the original copy of the complaint received by the Anti Corruption Bureau. Situations are many where certain persons do not want...

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