THE STATE GOVT OF NCT OF DELHI  Vs NIZAMUDDIN @ NIZAM

CRL.REV.P. 276 /2018 Page 1 of 6

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 276 /2018 & CRL.M.A. 5747/2018 (Delay)
Date of decision: 28th January , 202 1
IN THE MATTER OF:
THE STATE GOVT OF NCT OF DELHI ….. Petitioner
Through Ms. Kusum Dhalla, AP P for State

versus

NIZAMUDDIN @ NIZAM ….. Respondent
Through Mr. Sumer Kumar Sethi, Advocate

CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.
1. This revision petition has been filed by the State challenging th e order
dated 04.12.2017 whereunder, the learned A dditional Sessions Judge ,
Karkardooma Courts, Delhi has directed the Investigating Officer to procure
the call detail records and location via mobile towers of all members of the
raiding team and also of th e secret informer and himself. The Investigating
Officer was also directed to procure the mobile phone of the accused from
the malkhana .
2. It is the contention of the State that the trial court has failed to
appreciate that the said order amounts to interfe rence in the investigation
process and the accused does not have any right to have the information
about how the investigation is progressing as the accused is not entitled to
call records. It is also submitted by the State that the documents sought to
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be produced ha ve not been a part of the charge -sheet and details of the
personal information of the Investigating Officer of the case would amount
to the intrusion on the privacy of the Investigating Officer. It is also stated
that apart from information re garding this case, details of other cases would
also be there in the mobile of the Investigating Officer which the accused is
not entitled to see .
3. Heard Ms. Kusum Dhalla, learned APP appearing for the State and
Mr. Sumer Kumar Sethi, learned counsel for th e respondent.
4. Under Section 91 CrPC, whenever any court considers production of
any document or any other thing necessary or desirable for the purpose of
investigation, inquiry, trial or other proceeding under this Code , then the
court can issue summons t o the person , in whose possession such document
or thing is believed to be , requiring him to produce it in the court.
5. The power of the Magistrate under Section 91 CrPC to call for the call
records of the Investigating Officer has been discussed in Attar Si ngh v.
State (NCT of Delhi) reported as 2016 SCC OnLine Del 3907 wherein this
Court upheld the order of the trial court directing the production of call
records of the Investigating Officer. All contentions raised in this case were
taken by the prosecution there also and they were rejected on the facts of the
case.
6. This Court in its judgment dated 05.11.2019 in Crl.M.C. 3161/2019
titled as Narcotics Control Bureau v. Gaurav Kumar has observed as under:

“6. On perusal of the aforesaid provision of law, it is clear
that 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 purposes of any
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investigation, inquiry, trial or other proceeding under this
Code b y or before such Court or officer, such Court may issue
summons, or such officer a written order, to the person in
whose possession or power such document or thing is believed
to be, requiring hint to attend and produce it, or to produce it,
at the time an d place stated in the summons or order .

7. The similar issue came before the Hon’ble Supreme Court
in the case of Suresh Kumar Vs. Union of India 2015 (3) JCC
(Narcotics) 121 whereby the Hon’ble Supreme Court held as
under: –

“8. All that we are concerne d with is whether call details
which the appellant is demanding can be denied to him
on the ground that such details are likely to prejudice
the case of the prosecution by exposing their activities
in relation to similar other cases and individuals. It is
not however in dispute that the call details are being
summoned only for purposes of determining the exact
location of the officers concerned at the time of the
alleged arrest of the appellant from Yashica Palace
hotel near the bus stand. Ms. Makhija made a candid
concession that any other information contained in the
call details will be of no use to the appellant and that
the appellant would not insist upon disclosure of such
information. That in our opinion simplifies the matter
in as much as while the c all details demanded by the
appellant can be summoned in terms of Section 65B of
the Indian Evidence Act such details being relevant
only to the extent of determining the location of officers
concerned need not contain other information
concerning such cal ls received or made from the
telephone numbers concerned. In other words if the
mobile telephone numbers caller details of the callers
are blacked out of the information summoned from the
companies concerned it will protect the respondent
against any possi ble prejudice in terms of exposure of
sources of information available to the Bureau. Interest
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of justice would in our opinion be sufficiently served if
we direct the Trial Court to summon from the
Companies concerned call detailsof Sim telephone No.
90395 20407 and 7415593902 of Tata Docomo
company and in regard to Sim No. 9165077714 of
Airtel company for the period 24.02.2013 between 4.30
to 8.30 pm. We further direct that calling numbers and
the numbers called from the said mobile phone shall be
blacked o ut by the companies while furnishing such
details.”

8. Similar issue also came up before this Court in the case of
Suresh Kalmadi Vs. CBI 2015 {3} JCC 1874 whereby this
Court held as under: –

“24. It is submitted by the petitioner that the nexus that
the call records will demonstrate strikes at the foundation
of the Prosecution’s case, and which would show that
there was no conspiracy between the petitioner and other
accused persons to favour M/s Swiss Timing, and that in
fact other officials of the OC, i.e. Prosecution witness
PW- 18 Sujit Panigrahi attempted to favour MSL as a
bidder and these facts in support of this are evident and
demonstrable, but have been deliberately overlooked or
concealed by the Prosecution and therefore, the
petitioner has a r ight to an effective opportunity to
establish this case with the aid of relevant documents
such as the Call Detail Records of Mr. Jyoti Chhabra. At
this stage, the Court is not concerned whether the
averments made in the application under Section 91
Cr.P.C . may be gospel truth or not. If the documents are
necessary in order to decide the real controversy, the
same cannot be thrown particularly when the application
is filed by the accused.

25. There is some force in the submission of the petitioner
for som e extent as it also appears from the pleadings that
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the Trial Court has taken an inconsistent view while
passing the Impugned Order. In similar applications
under Section 91 Cr.P.C. moved by Accused No. 3 for
summoning Call Detail Records of PW -18 Sujit
Panigrahi and PW -29 Vijay Kumar Gautam, the Trial
Court by orders dated 16th April, 2013 and 9th July,
2013 summoned the records sought. However, the prayer
of the petitioner in the application under Section 91
Cr.P.C. was rejected.”

7. A perusal of the above mentioned judgments shows that this Court
can call for the call detail records of the Investigating Officer. The
impugned order calling for the call detail records of the Investigating Officer
and the raiding team and the direction to produce mobile phon e of the
accused from malkhana therefore does not require interference. The
accused is entitled only to the call details of the Investigating Officer and the
raiding team only for the purpose of this case and the order has to be
restricted to the call det ails of the Investigating Officer for the present case
only.
8. The details of the call records of the secret informer also cannot be
revealed as, such an order , is likely to jeopardise the life of the secret
informer. The order to provide for the call detail records of the secret
informer cannot sustain.
9. A perusal of the Lower Court records shows that pursuant to the order
impugned herein , charge -sheet has been filed and four prosecution witnesses
have already been examined. At this juncture, directing the State to produce
the call records of the Investigating Officer and the other members of the
raiding team pertaining to the case will not cause any prejudice to the
investigation.
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10. In view of the above, the order dated 4.12.2017 is modified to the
extent that the call detail records and location via mobile tower of all the
members of raiding team, Investigating Officer and the mobile phone of the
accused from malkhana be produced .
11. The revision petition is disposed of accordingly .

SUBRAMONIUM PR ASAD, J .
JANUARY 28, 202 1
hsk
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