HIGH COURT OF JUDICATURE FOR RAJASTHAN

JODHPUR

S.B. Criminal Misc. Application No. 120/2024

Krishan Lal
----Petitioner
Versus
State Of Rajasthan
----Respondent

For Petitioner(s) : None present

For Respondent(s) : Mr. Mahipal Bishnoi, PP
Mr. Rajendra Choudhary, for the
respondent No.2

HON'BLE MR. JUSTICE FARJAND ALI

Order

18/04/2024

1. 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),
 (2 of 7) [CRLMA-120/2024]

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. 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-
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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. 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
 (4 of 7) [CRLMA-120/2024]

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. 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
 (5 of 7) [CRLMA-120/2024]

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. 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
 (6 of 7) [CRLMA-120/2024]

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

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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.

(FARJAND ALI),J
763-Pramod/-