Delhi High Court
Aakash Deep Chouhan vs Cbi & Anr on 26 June, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:26.06.2025
+ CRL.M.C. 204/2020 & CRL.M.A. 890/2020
AAKASH DEEP CHOUHAN ..... Petitioner
versus
CBI & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Vaibhav Dubey, Adv. (through VC)
Mr. Kumar Vaibhav, Mr. Gautam Khazanchi
and Mr. Mohd. Ashaab, Advs.
For the Respondents : Mr. Ravi Sharma, SPP-CBI with Mr.
Swapnil Choudhary, Mr. Ishaan Bhardwaj,
Mr. Shivam Mishra & Ms. Madhulika
Rai Sharma, Advs. for CBI
Mr. Ripudaman Bhardwaj, CGSC with Mr.
Kushagra Kansal and Mr. Amit Kumar Rana,
Advs. for R2 / UOI.
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petition is filed challenging the order on charge dated
19.10.2019 (hereafter ‘impugned order’), passed by the learned
Special Judge, Rouse Avenue Courts, New Delhi, in CC No. 02/2018
arising out of RC No. AC-1/2017-A-0008. By the impugned order, it
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was found that charge for the offence under Section 120B of the Indian
Penal Code, 1860 (‘IPC‘) read with Section 9 of the Prevention of
Corruption Act, 1988 (‘PC Act‘) is made out against the petitioner. The
petitioner is also seeking directions for expunging/ destruction of
telephonic messages/ calls allegedly unlawfully intercepted by CBI.
2. The brief facts of the case are as follows:
2.1. On 22.12.2017, RC No. AC-1/2017-A-0008 was registered by
CBI/AC-1 for offences under Section 120B of the IPC and under
Sections 9 and 10 of the PC Act.
2.2. It is the case of the prosecution that reliable information was
received that M/s. Capacite Structures Limited was trying to get a part
of the work on sub contract basis from M/s. Shapoorji Pallonji and Co.
(P) Ltd., which had been awarded a contract for redevelopment of ITPO
Complex into Integrated Exhibition-Cum -Convention Centre at Pragati
Maidan, Delhi by M/s. NBCC (India) Ltd. (a government enterprise).
2.3. It is alleged that the source had informed that the accused Sanjay
Kulkarni (the Managing Director of M/s. Capacite Structures Limited)
had approached the accused Rishabh, who is a private person with good
contacts with various public servants for securing the said work in
favour of his company. It is alleged that in furtherance of the
conspiracy, the accused Rishabh had contacted the accused Pradeep
Kumar Mishra, working as Asstt. Director in IB (on deputation from
BSF), who was close to certain senior functionaries of M/s. NBCC
(India) Ltd.
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2.4. It is alleged that the accused Pradeep had assured that the work
could be awarded to M/s. Capacite Structures Limited, through his close
contacts and personal influence with Mr. Anoop Kumar Mittal, CMD,
M/s. NBCC (India) Ltd. and the accused Pradeep made a demand for a
New Royal Enfield Bullet as a part of the illegal gratification. The
accused Rishabh conveyed the demand to the accused Sanjay over
phone, who agreed to the same.
2.5. The source further informed that under the influence of the
accused Pradeep, Mr. Anoop Kumar Mittal directed the Executive
Director, M/s. NBCC (India) Ltd. to settle the matter in favour of M/s.
Capacite Structures Limited. In furtherance of the conspiracy, on
15.12.2017, a meeting took place between the accused Sanjay,
representatives of M/s. Shapoorji Pallonji and Co. (P) Ltd. and some
senior level officers of M/s. NBCC (India) Ltd., including its Executive
Director. It is alleged that after the meeting, Mr. Anoop assured the
accused Pradeep and the accused Sanjay about the work being awarded
by M/s. Shapoorji Pallonji and Co. (P) Ltd. to M/s. Capacite Structures
Limited and further asserted that if the work was not given to M/s.
Capacite Structures Limited, it would not be given to anyone else.
2.6. It is alleged that in furtherance of the conspiracy, the demanded
motorcycle was to be delivered as part of illegal gratification by the
petitioner, who was an employee of the accused Sanjay, to the accused
Pradeep in Delhi.
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2.7. During investigation, it was found that the accused Sanjay was
interested in obtaining steel work on sub-contract basis from M/s.
Shapoorji Pallonji and Co. (P) Ltd. in the project awarded to them by
M/s. NBCC (India) Ltd. and had been in touch with M/s. Shapoorji
Pallonji and Co. (P) Ltd. since the pre-tender stage. It was found that
the accused Sanjay had also submitted his proposal in June, 2017,
however, on not getting any proper response, he entered into the
criminal conspiracy with the accused Rishabh.
2.8. It was further found that after the accused Rishabh had informed
the accused Sanjay about the demand by the accused Pradeep for a New
Royal Enfield Bullet Motorcycle. The accused Sanjay had sent cash to
his brother- Ajay Kulkarni, which was delivered at the residence of the
petitioner. Thereafter, the accused Rishabh had conveyed consent of the
accused Sanjay to the petitioner and directed him to purchase the
motorcycle and deliver it to the accused Pradeep.
2.9. In pursuance of the conspiracy, the petitioner contacted a Sales
Executive and booked Royal Enfield Bullet Motorcycle chosen by the
accused Pradeep. The petitioner also allegedly obtained the documents
required for the purchase of the motorcycle from the accused Pradeep.
On 22.12.2017, the petitioner received delivery of the same and
delivered it to the accused Pradeep at the address conveyed by him
along with the keys and copies of documents of the motorcycle.
2.10. A CBI trap team along with independent witnesses recovered the
motorcycle from the accused Pradeep in the evening of 22.12.2017. It
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was found that an amount of ₹1,45,660/- for purchasing the motorcycle
was paid from the account of the petitioner.
2.11. The Special Unit, CBI had also intercepted the calls since
01.11.2017 to 22.12.2017 of five mobile numbers, with two numbers
belonging to the accused Rishabh and one each of the accused Pradeep,
the accused Sanjay and the petitioner. It is alleged that 74 recorded
conversations pertaining to the said mobile numbers established the
conspiracy between the accused persons for obtaining the subcontract
from M/s. Shapoorji Pallonji and Co. (P) Ltd., and in lieu of which, the
accused Pradeep had accepted gratification in the form of a new Bullet
Motorcycle. It is alleged that the accused Sanjay agreed to give the
motorcycle as gratification to the accused Pradeep and the accused
Rishabh and the petitioner acted as middlemen in the commission of the
crime. The voices of the accused persons were identified by
independent witnesses and the voice samples of the accused persons
were sent for CFSL for comparison with the voices of intercepted
calls/conversations and CFSL has given positive report.
2.12. By the impugned order, the learned Special Judge observed that
a prima facie case was made out against the accused persons, including
the petitioner, for the offence under Section 120B of the IPC and
Section 9 of the PC Act.
2.13. Formal charges were framed against the petitioner by order dated
22.10.2019.
2.14. Aggrieved by the same, the petitioner filed the present petition.
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3. The learned counsel for the petitioner submitted that the charges
have been framed mechanically against the petitioner on the basis of
unlawfully intercepted call recordings and conjectures, even though
there is no material on record which casts grave suspicion against the
petitioner.
4. He submitted the learned Trial Court has failed to appreciate that
the petitioner was only an employee acting on instructions of his
employer in a routine manner and he had no concern or idea about any
alleged sub-contract of M/s. NBCC (India) Ltd.
5. He submitted that the transcripts of the intercepted calls are
merely a corroborative piece of evidence and there is nothing on record
to show that any influence was ever exercised or even attempted to be
exercised on Mr. Anoop Kumar Mittal by the petitioner or any of the
other accused persons.
6. He submitted that in one of calls relied upon by the learned Trial
Court while framing charge against the petitioner, being call no.41, the
petitioner has actually stated to the accused Rishabh Aggarwal that he
is awaiting capital for the purchase of the motorcycle from the
concerned person in his company. He submitted that there are multiple
transcripts on record which show that the petitioner has informed the
co-accused persons that the bike shall only be obtained after receiving
the necessary official approvals. He submitted that the same belies any
allegation of conspiracy as it is inconceivable that any person acting in
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conspiracy to attain any illegal objective will seek official approvals and
it shows that the petitioner was not part of any conspiracy.
7. He further submitted that the learned Trial Court has failed to
appreciate that the intercepted calls, which form the sole basis of the
prosecution, were illegally and unlawfully intercepted disregarding the
law laid down in the case of K.S. Puttaswamy v. Union of India :
(2017) 10 SCC 1, in total violation of the fundamental rights guaranteed
to the petitioner and other accused persons.
8. He submitted that as per Section 5(2) of the Indian Telegraph Act,
1885, an order for interception can be issued on either occurrence of
any public emergency or in the interest of public safety. He relied upon
the judgment in the case of People’s Union for Civil Liberties v. Union
of India : (1997) 1 SCC 301, where it was held that unless a public
emergency has occurred or the interest of public safety demands the
same, there will be no basis to direct any interception of calls by
exercising the powers under the section 5(2) of the Indian Telegraph
Act, 1885.
9. He further submitted that the interception was illegal as there was
no mention in the chargesheet to evidence that the interception orders
were placed before the Review Committee as per Rule 419A of the
Indian Telegraph Rules, 1951.
10. He further placed reliance on the cases of Vinit Kumar v. Central
Bureau of Investigation : 2019 SCC Online Bom 3155, Jatinder Pal
Singh v. Central Bureau of Investigation : 2022 SCC OnLine Del 135
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and K.L.D. Nagasree v. Govt of India, Ministry of Home Affairs : 2006
SCC OnLine AP 1085.
11. He submitted that from a bare perusal of the orders of
interception and their extension, it appears that no material was relied
upon before passing the same and the said orders had been passed in a
mechanical manner without considering the relevant law.
12. Per contra, the learned Special Public Prosecutor (‘SPP’) for
CBI submitted that the calls were lawfully intercepted and the learned
Special Judge has rightly framed the charges against the petitioner.
13. He submitted that the CDRS of the mobile phones and
identification of voices via CFSL has established the role of the
petitioner. He further submitted that the petitioner had full knowledge
of the nature of the bribe and he has been rightly charged for the alleged
offence. He submitted that several witnesses have stated incriminating
facts against the petitioner, including Shiv Kumar (driver of the
petitioner) who has stated that on 22.12.2017, the petitioner had driven
the motorcycle and delivered the same to the accused Pradeep.
14. He submitted that the interceptions which incriminates the
petitioner and his co-accused persons have been procured while in
complete adherence of the procedure prescribed under Section 5(2) of
the Indian Telegraph Act, 1885. He submitted that the decision for
interception was also placed before the Review Board and there is prima
facie material which warrants framing of charges against the accused
petitioner. He submitted that it is well settled that offence of corruption
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endangers public safety as economic crimes ultimately affect economic
stability of a country.
15. He submitted that the intercepted calls cannot be discarded at this
stage and during the course of the trial, the concerned witness will be
called for proving the orders of Ministry of Home Affairs.
16. He submitted that even otherwise, it is settled law that the test of
admissibility of evidence is to be seen on the basis of its relevancy and
a similar contention for expunging of alleged illegally intercepted
phone call was rejected by the Hon’ble Apex Court in the case of State
(NCT of Delhi) v. Navjot Singh Sandhu@Afsan Guru : 2005 11 SCC
600.
17. The learned standing counsel for Respondent No.2 seconded the
submissions made by the learned SPP and submitted that the calls were
legally intercepted in view of public safety in the interest of public order
for preventing incitement to commission of such acts and the guidelines
by the Hon’ble Supreme Court do not bar interception of any calls in
relation to illegal acts.
ANALYSIS
18. At the outset, it is relevant to note that the scope of interference
by High Courts while exercising revisional jurisdiction in a challenge
to order framing charge is well settled. The power ought to be exercised
sparingly, in the interest of justice, so as to not impede the trial
unnecessarily. It is not open to the Court to misconstrue the revisional
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proceedings as an appeal and reappreciate the evidence unless any
glaring perversity is brought to its notice.
19. In the case of Amit Kapoor v. Ramesh Chander : (2012) 9 SCC
460, the Hon’ble Apex Court had noted that while considering the point
of charge, the Court is required to consider the record of the case and
discern whether there are grounds to believe that the accused has
committed the offence. It was noted that the Court has to satisfy itself
as to the existence of elements of the alleged offence. The Hon’ble Apex
Court, adverting to a catena of precedents, had also noted that the test
for quashing an order on charge in exercise of revisional jurisdiction or
inherent jurisdiction is limited to whether the allegations, as made from
the record of the case, taken at their highest, are patently absurd and
whether the basic ingredients of the offence, for which the charge is
framed, are not made out. The relevant portion of the said judgment is
reproduced hereunder:
“17. Framing of a charge is an exercise of jurisdiction by the trial
court in terms of Section 228 of the Code, unless the accused is
discharged under Section 227 of the Code. Under both these
provisions, the court is required to consider the “record of the
case” and documents submitted therewith and, after hearing the
parties, may either discharge the accused or where it appears to the
court and in its opinion there is ground for presuming that the
accused has committed an offence, it shall frame the charge. Once
the facts and ingredients of the section exists, then the court would
be right in presuming that there is ground to proceed against the
accused and frame the charge accordingly. This presumption is not
a presumption of law as such. The satisfaction of the court in
relation to the existence of constituents of an offence and the facts
leading to that offence is a sine qua non for exercise of such
jurisdiction. It may even be weaker than a prima facie case. There
is a fine distinction between the language of Sections 227 and 228
of the Code. Section 227 is the expression of a definite opinion andSignature Not Verified
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judgment of the Court while Section 228 is tentative. Thus, to say
that at the stage of framing of charge, the Court should form an
opinion that the accused is certainly guilty of committing an
offence, is an approach which is impermissible in terms of Section
228 of the Code.
xxx
27. Having discussed the scope of jurisdiction under these two
provisions i.e. Section 397 and Section 482 of the Code and the fine
line of jurisdictional distinction, now it will be appropriate for us to
enlist the principles with reference to which the courts should
exercise such jurisdiction. However, it is not only difficult but is
inherently impossible to state with precision such principles. At best
and upon objective analysis of various judgments of this Court, we
are able to cull out some of the principles to be considered for proper
exercise of jurisdiction, particularly, with regard to quashing of
charge either in exercise of jurisdiction under Section 397 or Section
482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under
Section 482 of the Code but the more the power, the more due care
and caution is to be exercised in invoking these powers. The power
of quashing criminal proceedings, particularly, the charge framed
in terms of Section 228 of the Code should be exercised very
sparingly and with circumspection and that too in the rarest of rare
cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the case
and the documents submitted therewith prima facie establish the
offence or not. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach such
a conclusion and where the basic ingredients of a criminal offence
are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous
examination of the evidence is needed for considering whether the
case would end in conviction or not at the stage of framing of
charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to
prevent patent miscarriage of justice and for correcting some grave
error that might be committed by the subordinate courts even in
such cases, the High Court should be loath to interfere, at the
threshold, to throttle the prosecution in exercise of its inherent
powers.
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27.8. Where the allegations made and as they appeared from the
record and documents annexed therewith to predominantly give rise
and constitute a “civil wrong” with no “element of criminality” and
does not satisfy the basic ingredients of a criminal offence, the court
may be justified in quashing the charge. Even in such cases, the
court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to
observe is that it cannot examine the facts, evidence and materials
on record to determine whether there is sufficient material on the
basis of which the case would end in a conviction; the court is
concerned primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, is it an abuse of the
process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a
full-fledged enquiry or to appreciate evidence collected by the
investigating agencies to find out whether it is a case of acquittal
or conviction.
27.11. Where allegations give rise to a civil claim and also amount
to an offence, merely because a civil claim is maintainable, does not
mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or
under Section 482, the Court cannot take into consideration
external materials given by an accused for reaching the conclusion
that no offence was disclosed or that there was possibility of his
acquittal. The Court has to consider the record and documents
annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even broadly
satisfied, the Court should be more inclined to permit continuation
of prosecution rather than its quashing at that initial stage. The
Court is not expected to marshal the records with a view to decide
admissibility and reliability of the documents or records but is an
opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the
Code, suffers from fundamental legal defects, the Court may be
well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds
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interest of justice favours, otherwise it may quash the charge. The
power is to be exercised ex debito justitiae i.e. to do real and
substantial justice for administration of which alone, the courts
exist…”
(emphasis supplied)
20. It is the case of the prosecution that the accused persons entered
into a conspiracy for securing a sub-contract for steel work from M/s.
Shapoorji Pallonji and Co. (P) Ltd. in favour of M/s. Capacite Structures
Limited in the project awarded to it by M/s. NBCC (India) Ltd.. It is
alleged that the accused Pradeep, a public servant, had demanded a new
motorcycle as illegal gratification to exercise his influence with senior
functionaries of M/s. NBCC (India) Ltd. The said demand was
conveyed by the accused Rishabh, who acted as a middleman to
facilitate the transaction, to the accused Sanjay, the MD of M/s.
Capacite Structures Limited. It is alleged that the petitioner, who is an
employee of the accused Sanjay, had purchased the motorcycle that was
to be given as bribe and delivered the same to the accused Pradeep.
21. The petitioner has challenged the order on charge as well as the
formal charge on essentially two grounds:
a. The interceptions were unlawfully and illegally carried out by the
investigating agency, in violation of the petitioner’s fundamental
rights and statutory safeguards, due to which, the call recordings
borne out of the interceptions were inadmissible as evidence, andSignature Not Verified
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b. The material brought forth by the prosecution after investigation,
including the calls, did not make out a case of “grave suspicion”
against the petitioner.
22. Before appraising the evidence and material on record to discern
whether the same gives rise to grave suspicion against the petitioner, it
is incumbent on this Court to first analyse the legality of the interception
and if the intercepted calls can even be read against the petitioner.
23. This Court considers it apposite to note that it is cognizant that
the issue of admissibility and reliability of evidence is not one that is to
be probed or marshalled in a challenge against order framing charges.
Yet, in the present case, it is pertinent to note that the petitioner has also
sought for an additional relief of directions for expunging of the
intercepted calls, which warrants attention of this Court on the issue of
legality of the interceptions.
Legality of the Interceptions
24. It is argued on behalf of the petitioner that the interceptions were
unlawful as the same were carried out in flagrant breach of Section 5 of
the Indian Telegraph Act, 1885 and the same ought to be destroyed in
pursuance of Rule 419A of the Indian Telegraph Rules, 1951 as (a) the
condition precedents under Section 5(2) of the Indian Telegraph Act,
1885 were not met; and (b) the procedure under Rule 419A of the Indian
Telegraph Rules, 1951 was not followed as the interception orders
passed by the Ministry of Home Affairs had not been reviewed by the
Review Committee. It is further argued that the intercepted call
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recordings are inadmissible as the interceptions were in violation to the
petitioner’s fundamental right to privacy.
25. Section 5(2) of the Indian Telegraph Act, 1885 reads as under:
“5. Power for Government to take possession of licensed
telegraphs and to order interception of messages.–
(2) On the occurrence of any public emergency, or in the interest
of the public safety, the Central Government or a State Government
or any officer specially authorised in this behalf by the Central
Government or a State Government may, if satisfied that it is
necessary or expedient so to do in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with
foreign States or public order or for preventing incitement to the
commission of an offence, for reasons to be recorded in writing, by
order, direct that any message or class of messages to or from any
person or class of persons, or relating to any particular subject,
brought for transmission by or transmitted or received by any
telegraph, shall not be transmitted, or shall be intercepted or
detained, or shall be disclosed to the Government making the order
or an officer thereof mentioned in the order: Provided that press
messages intended to be published in India of correspondents
accredited to the Central Government or a State Government shall
not be intercepted or detained, unless their transmission has been
prohibited under this sub-section.”
26. Although every person has a fundamental right to privacy, the
said right is not absolute and it can be curtailed by procedure established
by law. The aforesaid provision empowers the Central Government or
a State Government or any officer specially authorised in this behalf by
the Central Government or a State Government to legally carry out
interception or surveillance in the event of any public emergency or in
the interest of public safety. In the case of People’s Union for Civil
Liberties (PUCL) v. Union of India : (1997) 1 SCC 301, while
considering the vires of Section 5(2) of the Indian Telegraph Act, 1885,
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the Hon’ble Apex Court had expounded upon what comes under public
emergency or public safety. The relevant portion of the judgment is as
under:
“28. Section 5(2) of the Act permits the interception of messages in
accordance with the provisions of the said section. “Occurrence of
any public emergency” or “in the interest of public safety” are the
sine qua non for the application of the provisions of Section 5(2) of
the Act. Unless a public emergency has occurred or the interest of
public safety demands, the authorities have no jurisdiction to
exercise the powers under the said section. Public emergency would
mean the prevailing of a sudden condition or state of affairs affecting
the people at large calling for immediate action. The expression
“public safety” means the state or condition of freedom from
danger or risk for the people at large. When either of these two
conditions are not in existence, the Central Government or a State
Government or the authorised officer cannot resort to telephone-
tapping even though there is satisfaction that it is necessary or
expedient so to do in the interests of sovereignty and integrity of
India etc. In other words, even if the Central Government is
satisfied that it is necessary or expedient so to do in the interest of
the sovereignty and integrity of India or the security of the State or
friendly relations with sovereign States or public order or for
preventing incitement to the commission of an offence, it cannot
intercept the messages or resort to telephone-tapping unless a
public emergency has occurred or the interest of public safety or
the existence of the interest of public safety requires. Neither the
occurrence of public emergency nor the interest of public safety are
secretive conditions or situations. Either of the situations would be
apparent to a reasonable person.”
(emphasis supplied)
27. It is argued on behalf of CBI that destruction of the intercepted
calls is not warranted and the condition precedent of public safety, as
prescribed under Section 5(2) of the Indian Telegraph Act, 1885, is met
in the present case as the allegations pertain to corruption which poses
a risk on the economic well being of the country and its people.
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28. This Court finds merit in the said argument. The threat posed by
corruption cannot be understated. Corruption has a pervasive impact on
a nation’s economy and the same can impact anything from
infrastructural development to resource allocation. Corruption by a
public servant has far reaching consequences as it serves to not only
erode public trust and cast aspersions on the integrity of public
institutions, but also renders the public at large susceptible and
vulnerable by threatening the economic safety of the country. The
pervasive nature of corruption has been recognised by many Courts and
it has been noted that the same undermines the core values of Indian
Preambular vision [Ref. Subramanian Swamy v. Manmohan Singh :
(2012) 3 SCC 64]. In the case of Sanjay Bhandari v. Ministry of Home
Affairs : 2020 SCC OnLine Mad 28021, the Hon’ble High Court of
Madras had dismissed the writ petitions that were filed challenging the
order directing interception of certain mobile number. The Hon’ble
High Court had elaborated upon the scope of “public safety” as
expounded by the Hon’ble Apex Court in People’s Union for Civil
Liberties (PUCL) v. Union of India (supra) in view of the new
technology and observed as under:
“12. The five circumstances laid under Section (5)(2) of the Indian
Telegraph Act related to the public emergency or interest of the
public safety. The authority is within the powers conferred by the Act
to order for lawful interception. It would also be seen that not only
the bodily injury to the members of the public or the injury to a
minimum number of persons would constitute public safety. With the
latest communication tools in the form of powerful mobile phones
becoming available in every hand in the country which are equipped
with applications ensuring encrypted communication. The available
avenues with the potential criminals, have increased manifolds andSignature Not Verified
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it is becoming increasingly difficult to prevent and detect crime.
Restricting the concept of public safety to the mere “situations that
would be apparent to the reasonable persons” will exclude most of
the actual threats which present the most grave circumstances like
terrorist attacks, corruption at high places, economic and
organized crimes, most of which are hatched in the most secretive
of manners. In most of the circumstances, threat to public safety is
from hidden factor which are neither apparent nor obvious to the
general public and members of the law enforcement community and
the information about these circumstances and factors cannot be
connected by any other reasonable means. In addition, most of such
information, is sensitive in nature, which may not be circulated in
the public domain. Therefore, the first respondent passed the order
to intercept phone messages of the petitioners herein.”
(emphasis supplied)
29. Relying upon the dictum in the case of Sanjay Bhandari v.
Ministry of Home Affairs (supra), a Coordinate Bench of this Court in
Santosh Kumar v. Union of India : (2022) 4 HCC (Del) 697 had
dismissed writ petitions challenging orders of Ministry of Home Affairs
which permitted interception of telephonic calls of the petitioner
therein. It was noted that disclosure of elaborate reasons in interception
orders would be against the modified disclosure requirements. The
relevant portion of the said judgment is as under:
“48. The disclosure of elaborate reasons for interception orders
would be against the modified disclosure requirements of
procedural fairness which have been universally deemed acceptable
for the protection of other facets of public including the source of
information leading to the detection of crime or other wrong doing,
sensitive intelligence information and other information supplied in
confidence for the purpose of Government or discharge of certain
public functions. Furthermore, the Rule 419-A of the Telegraph
Rules provide for extreme secrecy, utmost care and precaution in the
matter of interception as it affects privacy.
xxx
54. It is pertinent to point that the present matter pertains to
corruption and through the order of Sanjay Bhandhari case [SanjaySignature Not Verified
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Bhandari v. Govt. of India, Ministry of Home Affairs, 2020 SCC
OnLine Mad 28021] the same was held to be a matter which
endangers public safety since economic crimes ultimately affect the
economic stability and safety of the country and its citizens.”
(emphasis supplied)
30. In the present case, the allegations relate to the accused persons
seeking to secure a sub-contract, by way of corruption, from a company
that was awarded the task of redevelopment of ITPO Complex into
Integrated Exhibition-Cum-Convention Centre on the basis of personal
influence rather than merit of the bid. The allegations are grave in nature
and, if proven, would render dubious the entire process of awarding of
tenders and bids on the basis of personal influence with senior officers
rather than benefit of the public at large. Although it cannot be
generalized that all allegations in relation to corruption would have the
capacity of influencing the public at large, the allegations herein don’t
relate to a trivial project but one that was awarded for ₹2149.93 crores
where the work sought by way of influence would have been of a
substantial sum as well. The economic scale of the offence, in the
opinion of this Court, satisfies the threshold of “public safety”.
31. Insofar as violation of due procedure is concerned, the written
submission placed on record by CBI clarifies the same and mentions
that the Review Committee in its meeting dated 11.01.2018 and
23.03.2018 had reviewed the interception orders issued by Ministry of
Home Affairs for the period from 01.08.2017 to 31.10.2017 and
01.11.2017 to 31.01.2018 respectively. It is mentioned that as per the
minutes, the committee concluded that the interception orders issued by
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Ministry of Home Affairs in respect of the above-mentioned period
were in accordance with the provisions of Section 5(2) of the Indian
Telegraph Act, 1885 and did not merit any intervention of the
Committee.
32. A bare perusal of the interception orders passed by the Ministry
of Home Affairs shows that the same have been passed “for the reason
of public safety” in the interest of public order to prevent incitement to
commission of an offence. As noted in Santosh Kumar v. Union of
India (supra), the disclosure of elaborate reasons would defeat the
purpose of secrecy as provided for under Rule 419A of the Indian
Telegraph Rules, 1951 and would be against the modified disclosure
requirements.
33. The petitioner has placed reliance on a number of judgments,
however, the cases are distinguishable on facts. The judgment in the
case of Jatinder Pal Singh v. Central Bureau of Investigation (supra)
is of no benefit to the petitioner as in the said case, the Court had
observed that there was no material on record to show that any review
of the interception orders was conducted by the Review Committee,
which led to the finding that the mandatory requirements laid down by
law for placing reliance on the intercepted conversations was not met.
34. Unlike the present case, in the case of K.L.D. Nagasree v. Govt
of India, Ministry of Home Affairs (supra) as well, while the
interception orders were placed before the Review Committee,
however, the Committee had decided to hold another meeting and there
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was no material to show that the Review Committee had met. The
Hon’ble Andhra Pradesh High Court was also weighed to direct
destruction of messages by the fact that the interception orders only
repeated the conditions mentioned in Section 5(2) of the Indian
Telegraph Act, 1885 verbatim without any specific reason.
35. It is important to note that the judgment in the cases of Jatinder
Pal Singh v. Central Bureau of Investigation (supra) and K.L.D.
Nagasree v. Govt of India, Ministry of Home Affairs (supra) were also
considered and distinguished in the case of Santosh Kumar v. Union of
India (supra).
36. The petitioner has further sought to place reliance on the case of
Vinit Kumar v. Central Bureau of Investigation : 2019 SCC Online
Bom 3155. As pointed out by the learned counsel for the respondents,
the Hon’ble Apex Court has stayed the aforesaid decision. It is argued
by the learned counsel for the petitioner that mere stay of a decision
does not restrict its operation. While the said decision may have some
persuasive value, in the said case, the Hon’ble Bombay High Court was
of the view that the facts of the case did not justify any ingredients of
the risk it posed to the public and it was found that the action of issuing
successive review orders, without reference to the review committee,
was in clear breach of the relevant rules, statute and Constitution of
India. In the present case, as discussed above, this Court has expressed
its inclination to endorse the view taken by the Coordinate Bench in
Santosh Kumar v. Union of India (supra) and taken the view that the
interception was within the ambit of Section 5(2) of the Indian
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Telegraph Act, 1885 as the allegations pertain to economic crime of
corruption for securing a bid of high value, which ultimately affects the
economic stability of the country. As noted above, the interception
orders were also duly placed before the Review Committee and the
allowed by the same.
37. In view of the above, this Court is of the opinion that the
interception was carried out in accordance with law, and therefore, no
case is made out for destruction of the transcripts.
Admissibility and Reliability of the interceptions
38. Even otherwise, if the case of the petitioner is taken at the highest
and it is considered that the interceptions were unlawful, it is relevant
to note that the destruction of the recordings is sought as it has
prejudiced the petitioner in the present case and it is contended that the
unlawfully obtained call recordings cannot be used to incriminate the
petitioner. A bare perusal of the conversations on record clearly suggest
discussions in relation to demand and delivery of illegal gratification.
The same are clearly relevant to the case. As held by the Hon’ble Apex
Court in the case of State (NCT of Delhi) v. Navjot Sandhu : (2005) 11
SCC 600, the admissibility of the material is not affected by the non-
compliance of the procedural safeguards. The relevant portion is as
under:
“Interception of phone calls
153. The legality and admissibility of intercepted telephone calls
arises in the context of telephone conversation between Shaukat and
his wife Afsan Guru on 14th December at 2009 hrs and the
conversation between Gilani and his brother Shah Faizal on the
same day at 1222 hrs. …It is contended by the learned SeniorSignature Not Verified
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Counsel appearing for the two accused Shaukat and Gilani, that
even Rule 419-A, has not been complied with in the instant case, and,
therefore, the tape-recorded conversation obtained by such
interception cannot be utilised by the prosecution to incriminate the
said accused. It is the contention of the learned counsel for the
State Mr Gopal Subramanium, that there was substantial
compliance with Rule 419-A and, in any case, even if the
interception did not take place in strict conformity with the Rule,
that does not affect the admissibility of the communications so
recorded. In other words, his submission is that the illegality or
irregularity in the interception does not affect its admissibility in
evidence there being no specific embargo against the admissibility
in the Telegraph Act or in the Rules. Irrespective of the merit in the
first contention of Mr Gopal Subramanium, we find force in the
alternative contention advanced by him.
154. In regard to the first aspect, two infirmities are pointed out in
the relevant orders authorising and confirming the interception in
respect of specified telephone numbers. It is not shown by the
prosecution that the Joint Director, Intelligence Bureau who
authorised the interception, holds the rank of Joint Secretary to the
Government of India. Secondly, the confirmation orders passed by
the Home Secretary (contained in Vol. 7 of the lower court record,
p. 447, etc.) would indicate that the confirmation was prospective.
We are distressed to note that the confirmation orders should be
passed by a senior officer of the Government of India in such a
careless manner, that too, in an important case of this nature.
However, these deficiencies or inadequacies do not, in our view,
preclude the admission of intercepted telephonic communication
in evidence. It is to be noted that unlike the proviso to Section 45
of POTA, Section 5(2) of the Telegraph Act or Rule 419-A does not
deal with any rule of evidence. The non-compliance or inadequate
compliance with the provisions of the Telegraph Act does not per
se affect the admissibility. The legal position regarding the question
of admissibility of the tape-recorded conversation illegally collected
or obtained is no longer res integra in view of the decision of this
Court in R.M. Malkani v. State of Maharashtra [(1973) 1 SCC 471
: 1973 SCC (Cri) 399] . In that case, the Court clarified that a
contemporaneous tape record of a relevant conversation is a
relevant fact and is admissible as res gestae under Section 7 of the
Evidence Act. Adverting to the argument that Section 25 of the
Telegraph Act, 1885 was contravened the learned Judges held that
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of evidence illegally obtained was discussed. The law was laid down
as follows: (SCC p. 477, para 24)
‘There is warrant for the proposition that even if evidence
is illegally obtained it is admissible. Over a century ago it
was said in an English case where a constable searched the
appellant illegally and found a quantity of offending article
in his pocket that it would be a dangerous obstacle to the
administration of justice if it were held, because evidence
was obtained by illegal means, it could not be used against
a party charged with an offence.
See Jones v. Owens [(1870) 34 JP 759] . The Judicial
Committee in Kuruma v. R. [(1955) 1 All ER 236 : 1955 AC
197 : (1955) 2 WLR 223 (PC)] dealt with the conviction of
an accused of being in unlawful possession of ammunition
which had been discovered in consequence of a search of
his person by a police officer below the rank of those who
were permitted to make such searches. The Judicial
Committee held that the evidence was rightly admitted. The
reason given was that if evidence was admissible it matters
not how it was obtained. There is of course always a word
of caution. It is that the judge has a discretion to disallow
evidence in a criminal case if the strict rules of admissibility
would operate unfairly against the accused. That caution is
the golden rule in criminal jurisprudence.’ ”
(emphasis supplied)
39. The admissibility of any piece of evidence rests on its
reliability, instead of how that evidence came to be procured.
That is not to say that such evidence cannot be disallowed if the
evidence is colored by breach of the privacy of the accused,
however, even then, the judicial discretion will need to be
exercised at the time of stage of adjudication rather than at the
time of admitting the evidence on record.
40. Having observed that the interceptions were lawful, the
same are reliable and admissible.
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41. In the opinion of this Court, the transcripts cannot be
discarded and the learned Trial Court rightly perused the same
before forming its opinion on whether charges ought to be framed
against the petitioner and other accused persons.
Grave Suspicion against the petitioner
42. It will be apposite to succinctly discuss the statutory law with
respect to discharge and framing of charge as provided under Sections
227 and 228 of the CrPC. The same is set out below:
“227. Discharge
If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers that
there is not sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reasons for so doing.
228. Framing of Charge
(1) If, after such consideration and hearing as aforesaid, the Judge
is of opinion that there is ground for presuming that the accused has
committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame
a charge against the accused and, by order, transfer the case for trial
to the Chief Judicial Magistrate, or any other Judicial Magistrate of
the first class and direct the accused to appear before the Chief
Judicial Magistrate, or, as the case may be, the Judicial Magistrate
of the first class, on such date as he deems fit, and thereupon such
Magistrate shall try the offence in accordance with the procedure for
the trial of warrant cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused.
(2) Where the Judge frames any charge under clause (b) of
subsection (1), the charge shall be read and explained to the accused
and the accused shall be asked whether he pleads guilty of the
offence charged or claims to be tried.”
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43. It is trite law that the learned Trial Court while framing charges
is not required to conduct a mini-trial and has to merely weigh the
material on record to ascertain whether the ingredients constituting the
alleged offence are prima facie made out against the accused persons.
The Hon’ble Apex Court, in the case of Sajjan Kumar v. CBI : (2010)
9 SCC 368, has culled out the following principles in regards to the
scope of Sections 227 and 228 of the CrPC:
“21. On consideration of the authorities about the scope of Sections
227 and 228 of the Code, the following principles emerge: (i) The
Judge while considering the question of framing the charges under
Section 227 CrPC has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out whether or not a
prima facie case against the accused has been made out. The test to
determine prima facie case would depend upon the facts of each
case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
explained, the court will be fully justified in framing a charge and
proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece
of the prosecution but has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced
before the court, any basic infirmities, etc. However, at this stage,
there cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form
an opinion that the accused might have committed offence, it can
frame the charge, though for conviction the conclusion is required
to be proved beyond reasonable doubt that the accused has
committed the offence.
(vi) At the stage of Sections 227 and 228, the court is required to
evaluate the material and documents on record with a view to find
out if the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the alleged
offence. For this limited purpose, sift the evidence as it cannot be
expected even at that initial stage to accept all that the prosecution
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broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage, he is not to see whether the trial will end in conviction or
acquittal.”
(emphasis supplied)
44. In a recent decision in State of Gujarat v. Dilipsinh Kishorsinh
Rao : 2023 SCC OnLine SC 1294, the Hon’ble Apex Court has
discussed the parameters that would be appropriate to keep in mind at
the stage of framing of charge/discharge, as under:
“7. It is trite law that application of judicial mind being necessary
to determine whether a case has been made out by the prosecution
for proceeding with trial and it would not be necessary to dwell into
the pros and cons of the matter by examining the defence of the
accused when an application for discharge is filed. At that stage, the
trial judge has to merely examine the evidence placed by the
prosecution in order to determine whether or not the grounds are
sufficient to proceed against the accused on basis of charge sheet
material. The nature of the evidence recorded or collected by the
investigating agency or the documents produced in which prima
facie it reveals that there are suspicious circumstances against the
accused, so as to frame a charge would suffice and such material
would be taken into account for the purposes of framing the
charge. If there is no sufficient ground for proceeding against the
accused necessarily, the accused would be discharged, but if the
court is of the opinion, after such consideration of the material
there are grounds for presuming that accused has committed the
offence which is triable, then necessarily charge has to be framed.
xxx
12. The primary consideration at the stage of framing of charge is
the test of existence of a prima-facie case, and at this stage, the
probative value of materials on record need not be gone into. This
Court by referring to its earlier decisions in the State of
Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of
MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of
evaluation to be made by the court at the stage of framing of the
charge is to test the existence of prima-facie case. It is also held at
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opinion to the existence of factual ingredients constituting the
offence alleged and it is not expected to go deep into probative value
of the material on record and to check whether the material on
record would certainly lead to conviction at the conclusion of trial.”
(emphasis supplied)
45. In view of the above, it is clear that this Court, at this stage, is not
required to revaluate the evidence or hold a mini trial as the same would
tantamount to this Court assuming appellate jurisdiction. Thus, all that
has to be seen is whether the learned Trial Court has adequately
appreciated the material on record and whether the Court could form an
opinion on the basis of the material on record that there is grave
suspicion against the accused which is not properly explained.
46. In the present case, the learned Trial Court has framed charges
against the petitioner for the offence under Section 120B of the IPC read
with Section 9 of the PC Act.
47. Section 9 pertains to the offence relating to bribing a public
servant by commercial organization intending to obtain or retain
business for such commercial organization or to obtain or retain an
advantage in the conduct of business for such commercial organization.
48. The learned Trial Court observed that although it had been argued
that Section 9 of the PC Act was nor made out, however, the
conversation between the accused persons shows that the accused
Rishabh had contacted the accused Pradeep to influence higher officials
of M/s. NBCC (India) Ltd. to pressurize M/s. Shapoorji Pallonji and Co.
(P) Ltd. to award the contract to M/s. Capacite Structures Ltd. It is
argued that there is no evidence that Mr. Anoop Kumar Mittal was ever
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influenced. As rightly noted by the learned Trial Court, for the purpose
of constituting the offence under Section 9 of the PC Act, it is not
necessary that the accused who obtains illegal gratification actually
succeeds in their attempt to induce the public servant by exercising
personal influence. In the present case, there is categorical evidence on
record, including recovery of bike bought by the petitioner from the
accused Pradeep and the statement of the petitioner’s driver (CSW8-
Shiv Kumar) who saw the delivery of bike, which shows the transfer of
the gratification as bribe. As also noted by the learned Trial Court, it is
clear from the record that the accused Pradeep was known to the
Chairman of M/s. NBCC (India) Ltd. and the recorded conversations
between the accused Pradeep and the accused Rishabh show that the
accused Pradeep had assured that he would be able to influence the said
official for grant of the sub-contract.
49. It is argued that the petitioner cannot be persecuted merely on the
basis of calls as they are corroborative in nature. The learned Trial Court
has rightly appreciated that the electronic media corroborates the case
of the prosecution by filling the missing gaps as are created by factors
like the delivery of motorcycle.
50. It is further argued that the petitioner was merely an employee
and he was acting on instructions. It is argued that the calls also show
that the accused was waiting for financial approval. A bare perusal of
the transcripts of the calls show that while the petitioner did mention
financial approvals, however, at this stage, some portions of the call
suggest that the petitioner was aware of the reason for giving the bike.
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51. As noted by the learned Trial Court, Call Nos. 31, 33, 34, 41, 44
and other calls show that the petitioner was aware of the matter
regarding the sub-contract and that the motorcycle was being given to
the accused Pradeep, who was the Assistant Director in IB and who was
to exercise his influence on higher officials of M/s. NBCC (India) Ltd.
The Court is in agreement with the observations of the learned Trial
Court in this regard. In particular, reference has been made to call no.
34 where co-accused Rishabh is saying that “kaam khatam”, that is,
work is done, and that the accused Pradeep had confirmed that black
color of bike is fine with him. The said conversation prima facie shows
that the petitioner was aware that some work was being done by the
accused Pradeep, for which, he was receiving the motorcycle. In call
no. 31 between the accused Rishabh and the petitioner, there are even
specific mentions to the engagement of the accused Pradeep in IB and
the nexus of the accused Pradeep with Mr. Anoop Kumar Mittal, CMD,
M/s. NBCC (India) Ltd. The nature of the conversation prima facie
seems to be suggestive of the fact that the bike is being given as a bribe.
52. In a nutshell, at this stage, prima facie, the material on record
including the calls cast grave suspicion against the petitioner which
shows that even though he may not be the ultimate beneficiary to the
offence, he was participating in the transfer of bribe despite knowing
about the nature of the transaction. While the guilt of the petitioner
would be ascertained in trial, at this stage, the conversations and the
statement of the petitioner’s driver cast grave suspicion against him.
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53. It is also pertinent to note that the present case has been pending
before this Court since the year 2020 and the trial has since proceeded.
Needless to say, it is open to the petitioner to raise all arguments before
the learned Trial Court.
54. In view of the aforesaid discussion, this Court finds no reason to
interfere with the impugned order or to order destruction of the
intercepted call recordings.
55. The present petition is dismissed in the aforesaid terms.
AMIT MAHAJAN, J
JUNE 26, 2025
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