Bombay High Court
The State Of Maharashtra vs Vinod Jagannath Chaudhari on 17 June, 2016
Bench: R.V. Ghuge
1 Cri.WP.No.678.15.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 678 OF 2015
The State of Maharashtra,
Through Police Inspector,
Petitioner
ACB, Aurangabad.
VERSUS
Vinod Jagannath Chaudhari
Age : 38 years, Occu : Service,
R/o : At present C/o Mr. Ram Ithape,
Shripad Housing Society
Behind Shri Flour Mill, Near Honaji Nagar,
Jatwada Road, Harsul, Aurangabad. Respondent
Mr. S. G. Karlekar, APP for the Petitioner/State.
Mr. N. S. Ghanekar, Advocate for Respondent.
....
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 17/06/2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner/State is aggrieved by the order dated 19.03.1015
passed by the learned Additional Sessions Judge, Aurangabad below
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application Exhibit-4 in Special Case No. 53 of 2014.
3. The learned APP appearing on behalf of the petitioner has
strenuously criticized the impugned order primarily on two grounds.
Firstly, that the application Exhibit-4 sets out vague and ambiguous
pleadings and secondly, the impugned order is a cryptic order and
that no reasons are assigned while passing the said order.
4. The learned APP submits that merely because the accused filed
an application seeking a direction to the cellular services provider to
preserve the record with regard to the cellular phones, the trial Court
has passed the order and particularly when the two cellular phones
have no concern with the proceedings. Such an order should be
passed for justifiable reasons.
5. He further submits that any application inviting a Judicial
order ought to set out the purpose for which the jurisdiction of the
Court is invoked and justify the prayer made. He places reliance on
the judgment of the Hon'ble Supreme Court in the matter of Om
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Prakash Sharma Vs. CBI, Delhi, (2000) 5 SCC 679. He has
specifically relied on paragraph Nos.6 and 7 of the said judgment.
6. Learned APP further submits that the application Exhibit-4
has been filed not for merely seeking the preservation of CDR and
SDR records, but aimed at exerting pressure on the Investigating
Officer for self-serving purposes. The intention of the accused in
seeking such an order is to exert pressure on the Investigating Officer
by holding out a threat that the record is likely to reveal objectionable
material. The learned APP, therefore, submits that such applications
need to be rejected in order to avoid an oblique motive of the accused
being achieved.
7. Mr. Ghanekar learned Advocate for the respondent submits
that there is no oblique motive behind moving application Exhibit-4.
He submits that the respondent/accused has gathered information
that the complainant and the Investigating Officer were hand in
gloves and it was for a considerable duration that they were in touch
with each other on two cellular phones maintained by each of them
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whose numbers are mentioned in the prayer clause 'B' of Exhibit-4.
He further submits that the CDR/SDR record would reveal certain
conversation between the complainant and the Investigating Officer
and that would support the case of the respondent/accused, who is
said to be apprehended in an anti corruption case.
8.
He further submits that the accused is not required to disclose
his defence at a primary stage in the matter. The CDR is such
record which is normally maintained by the cellular services for a
period of about one year. After the said period, the record is
normally destroyed. The preservation of Call Detail Records (CDR)
(CDR) and the Subscriber Detail Records (SDR) would enable the
material evidence coming before the Court.
9. He has placed reliance upon the judgment of this Court in the
matter of Kamal Ahmed Mohammed Vakil Ansari & ors. Vs. The
State of Maharashtra 2014 ALL MR (Criminal) 5055, to support
his contention that the CDR is required to be preserved if it would
eventually bring the truth before the Court.
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10. He further submits that application Exhibit-4 had put forth
two fold prayers. Firstly, that the CDR and SDR along with tower
location was to be preserved and secondly, the said record was to be
produced before the Court. By the impugned order, the learned
Court has only directed preservation of the CDR and SDR and tower
location and has not yet considered the prayer for production of the
said record.
11. He, therefore, submits that in the subsequent stages in the
matter, he may move an application under Section 91 of the Code of
Criminal Procedure for producing the record and at the relevant time,
the Say of the prosecution would be considered and the learned
Court would decide the relevance, significance and justifiability for
production of the record. That can be independently decided by the
Court.
12. I have considered the submissions of the learned Advocates for
the respective sides.
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13. It is trite law that an accused can not be compelled to disclose
his defense at a stage at which it is not right to do so. Normally, a
statement under Section 313 of the Code of Criminal Procedure upon
being recorded would disclose the defence of the accused since the
Magistrate would put a question to him as to whether, he would like
to say anything with regard to the charges levelled upon him. It is
given to understand that application Exhibit-4 has been filed prior to
the recording of statement under Section 313.
14. Insofar as the submissions of the learned APP that the
impugned order is cryptic in nature is concerned, I have no reason to
disagree with his submissions. In the peculiar backdrop of this case
merely because the accused is not required to disclose his defence,
would not mean that the learned Court passing an order should pass
a cryptic order. The learned Court is expected to support its order
with reasons since reasons are fundamental to the conclusions
drawn by the Court and they indicate that the Court has considered
the material on record and has applied its mind to such material
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while granting or rejecting the prayer put forth. However, I have no
reason to disagree with the conclusions of the learned Additional
Sessions Judge since the application is rightly allowed.
15. In the light of the above and upon considering the reports cited
by both the sides, I am disposing of this petition without interfering
in the impugned order with the observation that the order is
restricted only to the extent of the preservation of the CDR, SDR and
tower location. Rule is discharged.
16. In the event, the accused desires to seek the production of the
said record, he shall have to move a separate application for the same
and the learned Trial Court shall consider the said application after
hearing all the sides, on its own merits and in accordance with law
applicable.
( RAVINDRA V. GHUGE, J.)
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