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2024 DIGILAW 624 (RAJ)

Krishan Lal v. State of Rajasthan

2024-04-18

FARJAND ALI

body2024
ORDER : Farjand Ali, J. No one is above the law and certainly no one can be, how mighty or influential he may be. A public servant cannot be permitted to flout the direction passed by this court or to make a deliberate disobedience of the order. The facts and circumstance of the case are that an order was passed by this court way back on 12.07.2023, which was not honoured by the police officials as well as the subsequent order regarding furnishing of explanation has also been defied. 2. Vide order dated 12.07.2023, this court passed the following order in S.B. Criminal Revision Petition No.613/2023 :- 1. The instant criminal revision petitions have been filed by the petitioner under Section 397 read with Section 401 Cr.P.C. challenging the correctness, legality or propriety of the orders dated 29.04.2023 passed by the learned Special Judge (NDPS Act Cases), Hanumangarh in Session Case No.113/2022 and 148/2022, whereby the applications moved by the petitioner under Section 91 of CrPC praying for procuring Tower Locations and Call Data Record of 17 persons, viz. the police party, who made seizure of the contraband, the accused himself, accused in FIR No.81/2022 registered at Police Station Pilibanga and taxi drivers, for the date 26.02.2022 from 07.00 am. to 12.00 midnight were rejected. 2. Brief facts relevant and essential for disposal of the case are that on 26.02.2022 when Mr. Indra Kumar, SHO, Police Station Pilibanga alongwith other police personnel was patrolling, at 06.00 p.m. at Chak Rohi 13 P.B.N., they caught accused-petitioner Krishan Lal, who was allegedly having possession of 3 kg opium. He was arrested and FIR No.82/2022 came to be registered at 01.11 am. 3. On the same day, i.e. 26.02.2022, Mr. Harbans Singh, Sub-Inspector, Police Station Pilibanga, who was patrolling with other police personnel, conducted Nakabandi at Goluwala Tiraha, Pilibanga to Hanumangarh Road. At 08.30 p.m., they intercepted an Alto car bearing Registration No.RJ-31-CB-3802. Accused Anil Kumar and Subhash were in the car, from which 50 gm. opium was recovered. It was revealed during investigation of that case that the contraband was procured to them by the accused-petitioner Krishan Lal, thus, he too was made an accused in the case and FIR No.81/2022 came to be registered at the Police Station Pilibanga at 12.34 a.m. 4. opium was recovered. It was revealed during investigation of that case that the contraband was procured to them by the accused-petitioner Krishan Lal, thus, he too was made an accused in the case and FIR No.81/2022 came to be registered at the Police Station Pilibanga at 12.34 a.m. 4. The claim of petitioner Krishan Lal is that since he had already been detained by police party at 06.00 p.m. at Chak Rohi 13 P.B.N. in FIR No.82/2022, therefore, he could not have supplied the contraband to accused Anil and Subhash in FIR No.81/2022, who were detained at 08.30 p.m. at Goluwala Tiraha, which is a place at a distance of 2.77 k.m. from Chak Rohi 13 P.B.N. He further claims that on 26.02.2022 he was at Police Station Goluwala from 10.30 a.m. till evening and in fact, he was taken from Police Station Goluwala to Police Pilibanga and the seizure proceedings shown from him at Chak Rohi 13 P.B.N. were fabricated. In order to substantiate the above claims, the accused petitioner preferred two applications under Section 91 CrPC before the trial court for summoning the CDR and Tower Locations of 17 people including the police party and accused in FIR No.81/2022, which came to be rejected by the trial court vide the impugned order. Hence, these revision petitions. 5. Learned counsel for the accused-petitioner submits that a false case has been foisted against the petitioner and that he was roped in both the matters based on false allegations. It is submitted that the Call Data Record and Tower Locations of persons mentioned in the applications under Section 91 of the CrPC are essential to bring the truth to the surface. Every accused has a right to lead proper defence and have a fair trial. Such an important right of an accused cannot be curtailed by passiveness of the agency or the trial court. The information sought to be summoned has a time bound existence and the petitioner would seize to have chance to lead proper defence if his prayer is not accepted. The reasonings given by trial court for rejecting the applications under Section 91 are not tenable and hence, the impugned order deserves to be set aside and the prayer made in the applications may be allowed. 6. The reasonings given by trial court for rejecting the applications under Section 91 are not tenable and hence, the impugned order deserves to be set aside and the prayer made in the applications may be allowed. 6. Learned AGA vehemently opposes the submissions made by learned counsel for the petitioner and submits that the learned judge below passed the impugned orders after due consideration and based on cogent reasons and the applications filed by the petitioner is just a tactic adopted to delay the case. Thus, no interference is called for by this court in the instant revision petitions. 7. Heard learned counsel for the petitioner as well as learned AGA. Perused the material available on record. 8. The Call Data Record contains the number of the tower from which the user received network while making a certain call. The location of the tower is found based on the tower number and the same is used to establish the location of the user. The petitioner has sought CDR and Tower Location details of a number of persons, however, on a perusal of the material placed on record, this court is of the opinion that out of the above, the only relevant person, whose CDR and Tower Location may be essential for fair trial of the case is the seizing officer in FIR No.82/2022, the case in which the contraband was allegedly recovered from the petitioner at 06.00 p.m. on 26.02.2022 from Chak Rohi 13 P.B.N. and it is vital to the case that the desired information is obtained from the service provider as the information that the CDR would reveal cannot be furnished or produced by the petitioner as it is out of his control. 9. Resultantly, the revision petitions filed by the petitioner are partly allowed. The impugned orders dated 29.04.2023 passed by the learned Special Judge (NDPS Act Cases), Hanumangarh in Sessions Case Nos. 113/2022 and 148/2022 are hereby quashed and set aside. The applications filed by the applicant-petitioner under Section 91 CrPC are hereby allowed in part and as a consequence thereof, it is ordered that the Call Data Record containing details from which tower location of the mobile number of seizing officer in FIR No.82/2022 registered at the Police Station Pilibanga is ascertainable for the period from 07.00 am. to 12.00 midnight on 26.02.2022 shall be preserved by the service provider. to 12.00 midnight on 26.02.2022 shall be preserved by the service provider. The respondent shall procure the same and produce before the trial court and the same can be used in trial by either of the parties. The prayer with regard to CDR and Tower Location details of other persons is rejected. 10. The Pending applications, if any, also stand disposed of. 3. An application has been preferred on behalf of the petitioner Krishan Lal regarding wilful disobedience by the concerned SHO and noticing that the order of this court has not been complied with, this court passed the following order on 15.03.2024 :- "1. Let notice be issued to the SHO, Police Station Dungargarh as to why the contempt proceedings may not be initiated against him. 2. List the matter on 01.04.2024. 3. Learned trial Court is also directed that if any application for compliance of the order of this Court is moved on behalf of the accused, then he will take initiative and would make sincere endevour to get the order complied with." 4. To the utter dismay, the defiance of the order passed by this court was not perged, rather the same has further been defied brazenly, therefore, this court passed the following order on 05.04.2024 :- "1. As per office report dated 04.04.2024, compliance of the order dated 15.03.2024 passed by this Court could not be made. 2. Let notice be issued to the SHO, Police Station Dungargarh as to why the contempt proceeding may not be initiated against him. 3. List the matter on 18.04.2024." 5. Today Mr. Rajendra Choudhary, learned private counsel appearing for the Police Inspector has submitted an explanation averring therein that he was neither provided the copy of the order by the Public Prosecutor nor the same was received by him through post. In para No.9 of the explanation furnished by him, he unashamedly stated that if any disobedience of the order dated 12.07.2023 is committed, then it was supposed to be done by the SHO, Police Station Pilibanga and not by him. He wanted to convince this court that he was not responsible for the disobedience or he was not supposed to comply the order passed by this court. 6. He wanted to convince this court that he was not responsible for the disobedience or he was not supposed to comply the order passed by this court. 6. In para No.10 of the explanation, he denied the allegation of non-providing the tower location by contending that he was not authorized to take the call details for which directions were passed by this court. He further denied the aspersions made by the petitioner against him and thus, prayed for dropping of the contempt proceedings against him. Surprisingly, the 3-page explanation does not contain any signature or seal of the police officer. 7. What was the reason behind a police officer to engage a private counsel despite there being a battery of Public Prosecutor is not comprehensible. There are more than 20 Public Prosecutors to represent the State before this court. The way in which the police officer entertained the order of this court and behaved in an altogether different manner persuaded this court to take a harsh step. It is the law of the land that before condemning any person, he must be provided an opportunity of being heard personally. Efforts have also been made to summon him through the Public Prosecutor. Learned Public Prosecutor present before this court would submit that he has received no response from the police officer and he has no instructions to plead on his behalf. Learned Public Prosecutor submits that necessary information regarding the older orders passed by this court had been communicated to the officer concerned within due time. 8. It is noticed that the behaviour of the Police Officer Mr. Ashok Bishnoi has been contumacious and even today no desire has been expressed for compliance of the order dated 12.07.2023. 9. In this view of the matter, let a warrant of arrest be issued to produce Mr. Ashok Bishnoi, Inspector of Police, before this court on the next date of hearing. The same shall be forwarded to the Director General of Police, Rajasthan, Jaipur for its compliance. 10. The three papers submitted by Mr. Choudhary in the name of explanation of the Inspector be kept on record. 11. List on 23.04.2024.