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Delhi District Court
Kapil Arora vs Central Goods Service Tax North on 9 June, 2025
DLSH010074192024 Page 1 of 18
CR No. 224/2025
Kapil Arora Vs. CGST North
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05
NEW DELHI DISTRICT : PATIALA HOUSE COURTS : NEW DELHI
Criminal Appeal No. 224/2025
In the matter of :-
Kapil Arora,
S/o Shri Rajendra Kumar Arora,
R/o 30/13, 3rd Floor, East Patel Nagar,
New Delhi-110008.
.........Revisionist
(accused before the Ld. Trial Court)
(through Sh. Lalit Valecha, Advocate)
Versus
CGST North
CR Building, I.P. Estate,
New Delhi-110002. .....Respondent
(complainant before the Ld. Trial Court)
CRIMINAL REVISION UNDER SECTION 438 BNSS 2023
Date of institution : 17.04.2025.
Date when judgment reserved : 02.06.2025.
Date of Judgment : 09.06.2025.
JUDGMENT:
–
1. The present revision petition is filed u/s. 438 BNSS 2023 on behalf of revisionist /
proposed accused against order dated 2.04.2025 passed by Ld. Magistrate in case
bearing File No. GEXCOM/AE/INV/GST/6731/2024-AE-DGARM-CGST-DEL(N)/
28050, titled Kapil Arora Vs CGST North, vide which the application of the
revisionist seeking directions to the Telecom Service Providers and concerned
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Kapil Arora Vs. CGST North
authorities to preserve and produce the Call Detail Records (CDR) of the Investigating
Officer (IO) Sh. Rajat Kumar 7419320955) and his accomplices Mr. Jawahd
9811555714) and Mr. Ashu @ Anas (9811941441 and other raiding team members
from 21.10.2024 to 24.10.2024 along with the CDR of the revisionist Kapil Arora and
his wife Garima Arora (9990060500) was dismissed on merits
2. The impugned order, which is under challenge by way of the present revision petition
is reproduced as under :
“This is an application filed on behalf of the applicant, Kapil Arora for seeking directions to
the Telecom Service Providers and concerned authorities to preserve and produce the Call
Detail Records (CDR) of the Investigating Officer (IO) Sh. Rajat Kumar 7419320955) and
his accomplices Mr. Jawahd 9811555714) and Mr. Ashu @ Anas (9811941441 and other
raiding team members from 21.10.2024 to 24.10.2024 along with the CDR of the applicant
Kapil Arora and his wife Garima Arora (9990060500) to substantiate each and every claim
and allegation made by the applicant.
Present: Shri Aditya Singla, Id. SSC for the Department with Id.
Counsels, Shri Siddharth Saxena, Shri Rajat Kumar and Shri Vishab Kumawat.
Shri Lalit Valecha, Ms. Tanya Bali, Ms. Shivani Tiwari and Shri Kunal Insa,
Id. Counsels for the applicant/accused.
1. Arguments on the aforesaid application have already been heard.
2. It is stated in the present application that the preservation of above records is essential to
substantiate the applicant’s claim of false implication in the present case at the behest of the
IO Rajat Kumar and his accomplices and further leading to the illegal arrest of the applicant
and subjecting him to and coercion in an attempt to extort a confession by planting false
documents and evidence gathered by the IO from his accomplices Mr. Jawahd and Mr. Ashu
@ Anas. It is stated that the arrest was orchestrated in connivance with applicant’s
competitors Mr. Jawahd and Mr. Ashu @Anas with the investigating officers and other
members of the raiding team maintaining regular contact with them. The actions of the IO
and the raiding team suggest potential coordination or collaboration with parties having a
vested interest in damaging the reputation and clean business of the applicant. It is stated that
the preservation of the CDRs is crucial to prevent the destruction or alteration of critical
evidence. It is stated that there is a heightened risk that vital information may be lost or
tampered with. Preserving the CDRs will safeguard the integrity of the investigation and
ensure that any evidence related to improper actions by the IO and raiding team members
remains intact.
3. Reply has been filed on behalf of the Department to the present application wherein it is
stated that the officers of the Anti-Evasion Branch of CGST Delhi North, acting on reliable
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CR No. 224/2025
Kapil Arora Vs. CGST Northinformation, conducted searches on 22.10.2024 at three premises associated with the
applicant, including his residence in Patel Nagar and his businesses, M/s Arora
Communication (GSTIN-07AIJPA7160J1/9) and M/s Cellphone Badlo (GSTIN-07AAJPC
7161PIZW) at Gaffar Market, Karol Bagh, Delhi. These searches were conducted under
Section 67 of the CGST Act, 2017, under the jurisdiction of CGST Delhi North
Commissionerate. It is stated that the applicant, as the owner of these firms, is the primary
beneficiary of the transactions carried out by these businesses. The investigation revealed that
the applicant’s firms were engaged in the purchase and sale of Apple mobile phones, Apple
Watches, iPads, Barbuds, and other electronic items without issuing of invoices as mandated
under the provisions of the CGST Vet. 2017. The goods were procured in cash from various
undisclosed sources and sold to consumers, without issuing GST invoices, thereby causing a
substantial loss to the Public Exchequer. It is stated that during the searches, a large quantity
of unaccounted goods, including mobile phones. Watches, and earbuds, were found at the
premises of M/s Arora Communication and M/s Cellphone Badio. These goods were seized
as they were procured without proper tax documentation. It is stated that the applicant
admitted in his statement under section 70 of the CGST Act that he had been selling mobile
phones in cash, and the money recovered during the search was the proceeds from these sales.
It is stated that sales ledgers retrieved from his laptop showed that the total turnover of his
firms was over Rs. 1200 crores, with an estimated tax evasion of approximately Rs. 216
crores. The investigation in the matter is pending and is at a crucial stage currently.
4. Ld. Counsel for the applicant/accused relied upon certain citations i.e. Narendra Kumar
Soni Vs. State of Rajasthan, Through P.P. S.B. Criminal Miscellaneous (Petition)
No.4342/2024 date of decision 07.01.2025 of the Hon’ble High Court of Judicature for
Rajasthan Bench at Jaipur, State Govt. of NCT of Delhi Vs. Nizamuddin @, Nizam Crl. Rev.
P. 276/2018 date of decision 28.01.2021 of the Hon’ble High Court of Delhi, OBI
Ogochukwu Stephen Vs. State Crl. M.C. 3356/2021 date of decision 10.01.2022 of the
Hon’ble High Court of Delhi and Rohit Chaudhary Vs.State NCT Delhi Crl. Revision
Petition no.161/2022 date of decision 29.08.2023 of the Hon’ble High Court of Delhi.
5. Ld. SSC for the Department relied upon the judgment of State Vs. Haripal Crl. M.C.
No.1239/2018 date of decision 16.08.2023 of the Hon’ble High Court of Delhi.
6. Record perused
7.Allegation against the applicant/accused is that applicant’s firm was engaged in the
purchase and sale of the Apple mobile phone, Apple watches, I Pads, earbuds and other
electronic items without issuing of invoices as mandated under the provisions of CGST Act,
2017. In my humble opinion, there is no requirement of preservation and production of CDR
of IO and his sources as concerned IO may be involved in different cases and it will directly
encroach upon the privacy of the IO and the order may also risk and disclose the identities of
informers and may risk their safety and security. Accordingly, I find no merits in the present
application and same is accordingly dismissed.
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8. It is pertinent to note to observe at this stage that, though this Court holds highest regard
for the decision relied upon by the Id. Counsel for the applicant/accused, however the said
decision would not come to the aid of applicant/accused as sought for as the facts and
circumstances as well as situation envisaged herein are distinguishable. Copy of this order be
given dasti to all concerned.”
(emphasis supplied)
3. In the revision petition it is stated that the revisionist requires the Call Detail Records
(CDRs) of:
1. Investigating Officer (IO) Rajat Kumar,
2. Alleged accomplices Mr. Jawahd and Mr. Ashi @ Anas,
3. Other members of the CGST raiding team,
for the period 21.10.2024 to 24.10.2024, to prove his innocence, as these records are
expected to show:
1. Frequent communication between the IO and the revisionist’s business rivals.
2. Collusion to falsely implicate the revisionist.
3. Improper coordination during the raid and arrest.
4. The following prayer has been made in the revision petition:
“a. Pass appropriate orders thereby calling TCR in CASE FILE
NO:-GEXCOM/AE/INV/GST/6731/2024-AE-DGARM-CGST-DEL(N)
TITLED AS “KAPIL ARORA VS CGST NORTH”;
b. Pass appropriate orders thereby setting aside the impugned order dated 02.04.2025 passed
by the Ld. CJM, PATIALA HOUSE COURT, NEW DELHI IN FILE NO:-
GEXCOM/AE/INV/GST/6731/2024-AE-DGARM-CGST-DEL(N) TITLED AS “KAPIL
ARORA VS CGST NORTH”
c. Pass appropriate orders Directing the Telecom Service Providers and concerned
authorities to preserve and produce the Call Detail Records (CDR) of the Investigating
Officer (IO) Sh. Rajat Kumar 7419320955 and his accomplices Mr. Jawahd (9811555714)
and Mr. Ashu @ Anas (9811941441) and other raiding team members from 21.10.2024 to
24.10.2024 along with the CDR of the applicant Kapil Arora and his wife Garima Arora
(9990060500) to substantiate each and every claim and allegation made by the
applicant/revisionist and bring the same on record;”
5. The main relief that the revisionist is seeking from this court is that directions be
issued to the Telecom Service Providers to preserve and produce the Call Detail
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CR No. 224/2025
Kapil Arora Vs. CGST NorthRecords (CDR) of the Investigating Officer (IO) Sh. Rajat Kumar 7419320955 and his
accomplices Mr. Jawahd (9811555714) and Mr. Ashu @ Anas (9811941441) and other
raiding team members from 21.10.2024 to 24.10.2024 along with the CDR of the
applicant Kapil Arora and his wife Garima Arora (9990060500).
6. Grounds of challenge: The impugned order has been challenged on the following
grounds:
1. Overview of the Challenge
The revisionist challenges the order of the Learned Chief Judicial
Magistrate dated 02.04.2025, alleging that it is contrary to settled legal
principles and passed without proper judicial application of mind. The
core grievance is the trial court’s refusal to direct the preservation and
production of Call Detail Records (CDRs) of:
Investigating Officer (IO) Rajat Kumar,
Alleged accomplices Mr. Jawahd and Mr. Ashi @ Anas,
Other members of the CGST North Office raiding team,
for the period 21.10.2024 to 24.10.2024.
2. CDRs as Crucial Evidence
The revisionist asserts that the CDRs are vital to establish his innocence
and to demonstrate:
False implication orchestrated by the IO in collusion with business
rivals.
Illegal arrest and coercion to extort a confession.
Improper coordination and communication between the IO and private
parties with vested interests.
3. Trial Court’s Erroneous Reasoning
The trial court rejected the application citing privacy concerns of the IO
and potential risk to informants. However, the revisionist argues that:
The right to a fair trial under Article 21 of the Constitution supersedes
the IO’s privacy.
The CDRs are the only available defense to prove the alleged
conspiracy and misconduct.
4. Legal Precedents Supporting the Revisionist’s Case
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Kapil Arora Vs. CGST North a. Paramjit Kaur v. State of Haryana, 2023:PHHC:156074.
The Punjab & Haryana High Court held that:
“While passing appropriate directions for preserving and
producing call details/tower location details under Section 91
Cr.P.C. may affect the right to privacy of police officials, the
right of the accused under Article 21 to a fair trial prevails.
Denial of such evidence amounts to denial of justice.”
b. Suresh Kalmadi v. CBI, 2015 SCC OnLine Del 13618.
The Delhi High Court ruled that:
“If documents such as CDRs are necessary to decide the real
controversy, they must be summoned under Section 91 Cr.P.C.,
regardless of whether the allegations are ultimately proven.”
c. NCB v. Gaurav Kumar, 2019 SCC OnLine Del 10794.
Reiterated the principle that:
“Under Section 91 Cr.P.C., courts may summon documents
necessary or desirable for investigation or trial.”
d. Obi Ogochukwu Stephen v. State, 2022 SCC OnLine Del 44.
The Delhi High Court directed telecom providers to preserve CDRs,
stating:
“If the documents are necessary to decide the real controversy, they
cannot be denied to the accused.”
e. Rohit Choudhary & Anr. v. State of NCT of Delhi , CRL.REV.P.
161/2022, decided on 29 August 2023
The court directed the State to ensure preservation of CDRs of
police officers to prevent destruction of crucial evidence.
5. Legal Basis: Section 91 CrPC
Section 91 of the Code of Criminal Procedure empowers courts to
summon documents or records if they are necessary or desirable for
investigation, inquiry, or trial. This includes CDRs, which are often
retained by telecom providers for up to six months.
6. Violation of Natural Justice and Article 21
The trial court’s refusal to preserve CDRs is alleged to:
Deny the revisionist a reasonable opportunity to defend himself.
Breach the principles of natural justice.
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Kapil Arora Vs. CGST North
Violate the right to a fair trial under Article 21 of the Constitution.
7. Scope of Revision under section 438 BNSS (397 Cr.P.C 1973)
8. Prior to adjudicating the case on its merits, it is essential to delineate the scope and
extent of these proceedings as well as the authority vested in this court under section
438 BNSS.
9. Section 438 BNSS read as under:
438. Calling for records to exercise powers of revision.
(1)The High Court or any Sessions Judge may call for and examine the record of any
proceeding before any inferior Criminal Court situate within its or his local jurisdiction for
the purpose of satisfying itself or himself as to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of
such inferior Court, and may, when calling, for such record, direct that the execution of any
sentence or order be suspended, and if the accused is in confinement that he be released on
his own bond or bail bond pending the examination of the record.
Explanation.-All Magistrates, whether Executive or Judicial, and whether exercising original
or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes
of this sub-section and of section 439.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to
any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court
or to the Sessions Judge, no further application by the same person shall be entertained by the
other of them.
10. The wording of the section is verbatim the same as of section 397 Code of Criminal
Procedure 1973.
11. A plain reading of Section 438 of the BNSS clearly indicates that Section 438(1)
allows aggrieved parties to challenge the correctness, legality, or propriety of any
finding, sentence, or order issued by the trial court. Such challenges can be brought
before a revisional court, namely the High Court or the Sessions Judge, as Section 438
confers concurrent jurisdiction upon both judicial authorities.
12. Section 438 (2) BNSS prohibits the revision powers under Section 397 (1) BNSS from
being used on interlocutory orders in appeals, enquiries, trials, or other proceedings.
This creates an explicit legislative bar against revising such orders.
13. It is well settled law that scope of revisional jurisdiction is limited to the extent of
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satisfying itself as to the correctness, legality or propriety of any finding, sentence or
order passed by the Trial Court and jurisdiction under section 438 BNSS to be
exercised for setting right a patent defect or an error of jurisdiction or law cannot be
equated with the power of Appellate Court.
14. As regards the scope of section 397 Cr.P.C (analogous to section 438 BNSS) in
judgment titled as ‘Amit Kapoor Vs. Ramesh Chander‘, (2012) 9 SCC 460 decided on
13.09.2012, the Hon’ble Supreme Court of India has observed that :-
“8. ….Section 397 of the Code vests the court with the power to call for and examine the
records of an inferior court for the purposes of satisfying itself as to the legality and regularity
of any proceedings or order made in a case. The object of this provision is to set right a patent
defect or an error of jurisdiction or law . There has to be a well- founded error and it may not
be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of
careful consideration and appear to be in accordance with law…….”
15. The Hon’ble Apex Court in ‘New India Assurance Co. Ltd. Vs. Krishna Kumar
Pandey’, Crl. Appeal No.1852 of 2019 decided on 06.12.2019, made the following
observations :
“8. The scope of the revisional jurisdiction of the High Court (or Sessions Court) under
Section 397 Cr.P.C, is limited to the extent of satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order passed by an inferior Court. The revisional Court
is entitled to look into the regularity of any proceeding before an inferior Court. As reiterated
by this Court in a number of cases, the purpose of this revisionsal power is to set right a
patent defect or an error of jurisdiction or law.”
16. Hon’ble Supreme Court of India in Sanjaysinh Ramarao Chavan Vs. Dattatray
Gulabrao Phalke, (2015) 3 SCC 123 held:
“14. ………Unless the order passed by the Magistrate is perverse or the view taken by the
court is wholly unreasonable or there is non-consideration of any relevant material or there is
palpable misreading of records, the Revisional Court is not justified in setting aside the order,
merely because another view is possible. The Revisional Court is not meant to act as an
appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in
the court to do justice in accordance with the principles of criminal jurisprudence. The
revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of
an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to
be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the
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Kapil Arora Vs. CGST Northdecision is based on no material or where the material facts are wholly ignored or where the
judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with
decision in exercise of their revisional jurisdiction”. (emphasis supplied).
17. Scope of revision has been explained in para 9 of judgment of Hon’ble High Court of
Delhi Taron Mohan Vs. State & Anr. 2021 SCC OnLine 312 which reads as under:
“9. The scope of interference in a revision petition is extremely narrow. It is well settled that
Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the
correctness, legality or propriety of any finding inter se an order and as to the regularity of the
proceedings of any inferior court. It is also well settled that while considering the legality,
propriety or correctness of a finding or a conclusion, normally the revising court does not
dwell at length upon the facts and evidence of the case. A court in revision considers the
material only to satisfy itself about the legality and propriety of the findings, sentence and
order and refrains from substituting its own conclusion on an elaborate consideration of
evidence. ”
18. The precise purpose of Revision is to examine the correctness, legality and propriety
of the order in question and to set right a patent defect or an error of jurisdiction or
law. Needless to say, that the power of revision needs to be exercised fairly, rationally
and judiciously in order to put right any manifest error of law or jurisdiction.
Discussion on the merits of the revision petition:
19. The scope of Section 94 BNSS (91 Cr.P.C.) in a similar matter was considered by
Hon’ble Delhi High Court in judgment titled Mohd. Hashim Vs. GNCT of Delhi,
wherein in paras-14 to 16, it was observed as under :
“14. The cardinal issue which requires adjudication in the instant petition is in the nature of
the power conferred on the Court or any Officer in charge of the Police Station under Section
91 of the Cr.P.C. For convenience, Section 91 of the Cr.P.C. is reproduced as under:
“91. Summons to produce document or other thing.–
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 investigation, inquiry, trial or other proceeding under this Code by or before
such Court or officer, such Court may issue a summons, or such officer a written
order, to the person in whose possession or power such document or thing is believed
to be, requiring him to attend and produce it, or to produce it, at the time and place
stated in the summons or order.
Any person required under this section merely to produce a document or other thing
shall be deemed to have complied with the requisition if he causes such document or
thing to be produced instead of attending personally to produce the same.
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Nothing in this section shall be deemed– (a) to affect sections 123 and 124 of the
Indian Evidence Act, 1872 (1 of 1872), or the Bankers‟ Books Evidence Act,
1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or
any parcel or thing in the custody of the postal or telegraph authority.”
15. A plain reading on the above quoted provision makes it evidently clear that the powers
conferred therein are enabling in nature, aimed at arming the Court or any Officer of the
Police Station concerned to enforce and to ensure production of any document or other
things, “necessary or desirable”, for the purpose of any investigation, inquiry, trial or other
proceedings under the Code, by issuing summons or written orders to those in possession of
such materials. Therefore, sine qua non of an order under this Section is consideration of the
Court that the production of the documents concerned is desirable and necessary for the
purpose of trial. The Hon’ble Supreme Court, in the case of State of Orissa vs. Debendra Nath
Padhi, 2005 (1) SCC 568 held as under:
“25. Any document or other thing envisaged under the aforesaid provision can be
ordered to be produced on finding that the same is “necessary or desirable for the
purpose of investigation, inquiry, trial or other proceedings under the Code”. The first
and foremost requirement of the section is about the document being necessary or
desirable. The necessity or desirability would have to be seen with reference to the
stage when a prayer is made for the production. If any document is necessary or
desirable for the defence of the accused, the question of invoking Section 91 at the
initial stage of framing of a charge would not arise since defence of the accused is not
relevant at that stage. When the section refers to investigation, inquiry, trial or other
proceedings, it is to be borne in mind that under the section a police officer may move
the court for summoning and production of a document as may be necessary at any of
the stages mentioned in the section. Insofar as the accused is concerned, his
entitlement to seek order under Section 91 would ordinarily not come till the stage of
defence. When the section talks of the document being necessary and desirable, it is
implicit that necessity and desirability is to be examined considering the stage when
such a prayer for summoning and production is made and the party who makes it,
whether police or accused. If under Section 227, what is necessary and relevant is
only the record produced in terms of Section 173 of the Code, the accused cannot at
that stage invoke Section 91 to seek production of any document to show his
innocence. Under Section 91 summons for production of document can be issued by
court and under a written order an officer in charge of a police station can also direct
production thereof. Section 91 does not confer any right on the accused to produce
document in his possession to prove his defence. Section 91 presupposes that when
the document is not produced process may be initiated to compel production thereof.
Reliance on behalf of the accused was placed on some observations made in the case
of Om Parkash Sharma v. CBI [(2000) 5 SCC 679 : 2000 SCC (Cri) 1014] . In that
case the application filed by the accused for summoning and production of documents
was rejected by the Special Judge and that order was affirmed by the High
Court. Challenging those orders before this Court, reliance was placed on behalf of the
accused upon Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] . The
contentions based on Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104]
have been noticed in para 4 as under: (SCC p. 682) “4. The learned counsel for the
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Kapil Arora Vs. CGST Northappellant reiterated the stand taken before the courts below with great vehemence by
inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi
Admn. [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] laying emphasis on the fact that
the very learned Judge in the High Court has taken a different view in such matters, in
the decision reported in Ashok Kaushik v. State [(1999) 49 DRJ 202] . Mr Altaf
Ahmed, the learned ASG for the respondents not only contended that the decisions
relied upon for the appellants would not justify the claim of the appellant in this case,
at this stage, but also invited, extensively our attention to the exercise undertaken by
the courts below to find out the relevance, desirability and necessity of those
documents as well as the need for issuing any such directions as claimed at that stage
and consequently there was no justification whatsoever, to intervene by an
interference at the present stage of the proceedings.”
Insofar as Section 91 is concerned, it was rightly held that the width of the powers of that
section was unlimited but there were inbuilt, inherent limitations as to the stage or point of
time of its exercise, commensurate with the nature of proceedings as also the compulsions
of necessity and desirability, to fulfil the task or achieve the object. Before the trial court the
stage was to find out whether there was sufficient ground for proceeding to the next stage
against the accused. The application filed by the accused under Section 91 of the Code for
summoning and production of document was dismissed and order was upheld by the High
Court and this Court. But observations were made in para 6 to the effect that if the accused
could produce any reliable material even at that stage which might totally affect even the very
sustainability of the case, a refusal to look into the material so produced may result in
injustice, apart from averting an exercise in futility at the expense of valuable judicial/public
time, these observations are clearly obiter dicta and in any case of no consequence in view of
conclusion reached by us hereinbefore. Further, the observations cannot be understood to
mean that the accused has a right to produce any document at the stage of framing of charge
having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239
and 240 in Chapter 19.
We are of the view that jurisdiction under Section 91 of the Code when invoked by the
accused, the necessity and desirability would have to be seen by the court in the context of
the purpose — investigation, inquiry, trial or other proceedings under the Code. It would also
have to be borne in mind that law does not permit a roving or fishing inquiry.”
16. In another matter Nitya Dharmanda & Anr vs. Gopal Sheelum Reddy & Anr, (2018) 20
SCC 93, the Hon’ble Supreme Court held as under:
“5. It is settled law that at the stage of framing of charge, the accused cannot
ordinarily invoke Section 91. However, the court being under the obligation to impart
justice and to uphold the law, is not debarred from exercising its power, if the interest
of justice in a given case so require, even if the accused may have no right to
invoke Section 91. To exercise this power, the court is to be satisfied that the material
available with the investigator, not made part of the charge-sheet, has crucial bearing
on the issue of framing of charge.
6. In Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005
SCC (Cri) 415] , it was observed: (SCC pp. 579-80, para 25)
“25. Any document or other thing envisaged under the aforesaid provision can be
ordered to be produced on finding that the same is „necessary or desirable for the
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Kapil Arora Vs. CGST Northpurpose of investigation, inquiry, trial or other proceedings under the Code ‟. The first
and foremost requirement of the section is about the document being necessary or
desirable. The necessity or desirability would have to be seen with reference to the
stage when a prayer is made for the production. If any document is necessary or
desirable for the defence of the accused, the question of invoking Section 91 at the
initial stage of framing of a charge would not arise since defence of the accused is not
relevant at that stage. When the section refers to investigation, inquiry, trial or other
proceedings, it is to be borne in mind that under the section a police officer may move
the court for summoning and production of a document as may be necessary at any of
the stages mentioned in the section. Insofar as the accused is concerned, his
entitlement to seek order under Section 91 would ordinarily not come till the stage of
defence. When the section talks of the document being necessary and desirable, it is
implicit that necessity and desirability is to be examined considering the stage when
such a prayer for summoning and production is made and the party who makes it,
whether police or accused. If under Section 227, what is necessary and relevant is
only the record produced in terms of Section 173 of the Code, the accused cannot at
that stage invoke Section 91 to seek production of any document to show his
innocence. Under Section 91 summons for production of document can be issued by
court and under a written order an officer in charge of a police station can also direct
production thereof. Section 91 does not confer any right on the accused to produce
document in his possession to prove his defence. Section 91 presupposes that when
the document is not produced process may be initiated to compel production thereof.”
7. In Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92:
(2014) 2 SCC (Cri) 86] a Bench of five Judges observed: (SCC pp. 115- 16, para 19)
“19. The court is the sole repository of justice and a duty is cast upon it to uphold the
rule of law and, therefore, it will be inappropriate to deny the existence of such
powers with the courts in our criminal justice system where it is not uncommon that
the real accused, at times, get away by manipulating the investigating and/or the
prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts
at times to get himself absolved even at the stage of investigation or inquiry even
though he may be connected with the commission of the offence.”
8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material
produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied
that there is material of sterling quality which has been withheld by the
investigator/prosecutor, the court is not debarred from summoning or relying upon the same
even if such document is not a part of the charge-sheet. It does not mean that the defence has
a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge.”
(emphasis supplied)
20. From the aforesaid judgment it is clear that insofar as the revisionist is concerned, his
entitlement to seek order under Section 94 BNSS would ordinarily not come till the
stage of defence. However, the court being under the obligation to impart justice and
to uphold the law, is not debarred from exercising its power, if the interest of justice in
DLSH010074192024 Page 13 of 18
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Kapil Arora Vs. CGST North
a given case so require, even if the accused may have no right to invoke Section 94
BNSS.
21. However, sine qua non of an order under this Section is consideration of the Court that
the production of the documents concerned is desirable and necessary for the purpose
of trial. Necessity and desirability is to be examined considering the stage when such a
prayer for summoning and production is made and the party who makes it, whether
police or accused. It is clear from the aforesaid judgment that law does not permit a
roving or fishing inquiry
22. The simple question before this court is whether there is any patent defect or an error
of jurisdiction or law in the impugned order dated 2.4.2025, which needs to be
rectified by this court in the present Revision proceedings?
23. As the issue relates to preservation of the Call Detail Records of the raiding party and
also of business rivals, the court would firstly refer to some judgments on this aspect.
24. In Suresh Kumar Vs. Union of India, SLP Crl. 1477/2014 dated 06.05.2014 Hon’ble
Apex Court was vexed with a similar situation. In para 8 of the judgment Hon’ble
Apex Court observed as under:-
“8. All that we are concerned 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 call 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 calls 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 possible prejudice in terms of exposure of sources of
information available to the Bureau. Interest of justice would in our opinion be sufficiently
served if we direct the Trial Court to summon from the Companies concerned call details of
DLSH010074192024 Page 14 of 18
CR No. 224/2025
Kapil Arora Vs. CGST NorthSim telephone No. 9039520407 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 out by the companies while furnishing such details.”
(emphasis supplied)
25. In Puneet Arora Vs. State, Crl. MC 2477/2020 dated 09.12.2021, Hon’ble Delhi High
Court discussed Suresh Kumar (supra) and gave the following directions:-
“In view of the verdict relied upon on behalf of the petitioner and the submissions made on
behalf of the State, the call details of all the witnesses mentioned in paragraph 6 of the
petition are directed to be preserved specifically to ascertain the location of witnesses as
mentioned at Sr. Nos. 1 to 8 in paragraph 6 of the application of the petitioner referred to
hereinabove. However, the same shall be preserved in relation to the location of these
witnesses only and in terms of the verdict of the Hon’ble Supreme Court in Suresh Kumar V.
Union of India (supra), the calling numbers and the numbers called from the said mobile
phones shall be blacked out by the companies Airtel, Vodafone, Idea and Jio also are thus
directed to ensure that the call detail records of the persons mentioned at in paragraph 6
herein above in the petition are retained and preserved, if presently available.”
(emphasis supplied)
26. Reference may also be made to judgment of Krishan Pawdia Vs. State, WP Crl.
1236/2022 dated 03.06.2022 wherein Hon’ble Delhi High court while denying a
similar prayer observed in para 7 as under:-
“7. In the present case, the members of raiding party belong to a specialized investigating
agency which carries investigation in the matter of national interest, terrorism, armed dealing,
drug paddling and organized criminal activities and for said purpose the members of the
raiding party have to remain in touch with the secret informers. It would not be in the interest
of the functioning of the investigating agency to preserve CDR of mobile phone of the raiding
party as it may cause prejudice to the personal safety/security of the police officials as well as
may expose identity of the secret informers. The investigation is already completed.”
27. In another judgment Attar Singh Vs. State, Crl. MC 406/16 dated 18.07.2016.,
Hon’ble Delhi High Court observed as under:-
“9. I have heard learned counsel for the parties at length & gone through the available
records. After hearing the arguments advanced by counsel for the petitioner and the rival
contention and after perusal of the order passed by the Trial Court, it appears that the the
petitioner is seeking direction from this Court for the supply of the call details of the calls
made from the mobile phone of the investigating officer. The grievance of the petitioner is
that the calls made from the mobile of the investigating officer would indicate the presence,
location and the activities of the investigating officer whereas the case of the State is that in
the details of mobile calls of the investigating officer, it is not suggested to be the calls
DLSH010074192024 Page 15 of 18
CR No. 224/2025
Kapil Arora Vs. CGST Northrelating to the present case and apart from the present case, the investigating officer being a
police officer, had been dealing with other matters and activities of various other accused and
with regard to the duty assigned to him. Further contention made by the prosecution is that
the accused could not claim the record of various activities of the investigating officer and he
has to restrict to the activity of the investigating officer in the present case only. The
prosecution has claimed that accused does not have any right to have the information about
the final activities of the investigating officer and that cannot be limited to the activity in the
present case. So, the accused could not be said to be entitled for seeking the details of records
of all the calls made or calls received from the mobile phone of the investigating officer.”
(emphasis supplied)
28. Findings: Keeping in mind the aforesaid observations of the Hon’ble Delhi High
Court, read along with the observations made by the Hon’ble Apex Court in Suresh
Kumar (supra), in the opinion of the Court, the present revision petition may be
allowed only to the extent it is not fishing and is specific to the defence that the
revisionist intend to prove at appropriate stage. Further, the revision can be allowed
only to the extent that the order does not cause prejudice to the personal
safety/security of the concerned government officials or private persons and do not
expose identity of the informers.
29. It may be noted that the right of the revisionist to prove his defence and get the
evidence preserved for that purpose, is no less than the right of the prosecution to do
so in order to prove the case against the revisionist. However, the defence must be
specific and the record sought to be preserved should also be specific. Section 94
BNSS cannot be used by the accused either to derail the investigation or to make a
roving or phishing inquiry in search of a plausible defence. Further in garb of section
94 BNSS the revisionist cannot seek the CDRs of his business rivals, so that he may
use that data for his own business benefit later on.
30. As far as the prayers in the application w.r.t. preserving the CDR of the members of
the raiding team, Investigating officer and the revisionist and his wife is concerned, in
DLSH010074192024 Page 16 of 18
CR No. 224/2025
Kapil Arora Vs. CGST North
the opinion of the Court, in view of the observations made in Suresh Kumar (supra) 1,
the same can be allowed only to the extent that the CDR corresponding to time &
location only and not w.r.t. the calls or SMS sent or received w.r.t. mobile numbers of
(1) members of the raiding team, (2) IO i.e. Rajat Kumar (phone numbers of IO
mentioned in the application) and (3) revisionist and his wife for period of four days
i.e. from 21.10.2024 to 24.10.2024, may be got preserved with the concerned mobile
service providers, so that the same may be available to the revisionist at the
appropriate stage, when he has the opportunity to prove his defence. The CDRs of the
business rivals cannot be permitted to be preserved or provided. The defence that the
revisionist has been falsely implicated at their instance can be taken care of by
directing that the details of any call/SMS with mobile No. 9811555714 and
9811941441 only in the CDR of the members of the raiding team be preserved. In the
opinion of the court, if these records (w.r.t. time & location) are not preserved at this
stage, the same may not be available to the revisionist at the stage of defence evidence
to prove his defence.
Order
31. Accordingly, the revision petition is partly allowed with:
direction to the concerned Mobile/Cellular Service Providers, through the
investigating agency, to preserve:-
only location/tower details with time (all other details including the details
regarding calls or SMS received or made/sent are not to be preserved)
AND
details of any call/SMS with mobile No. 9811555714 and 9811941441 only in
the CDR
with respect to mobile number of members of the raiding team and IO Rajat1
Followed in Puneet Arora (supra)
DLSH010074192024 Page 17 of 18
CR No. 224/2025
Kapil Arora Vs. CGST NorthKumar (74193220955),
for period of four days i.e. 21.10.2024 to 24.10.2024
[It is made clear that all other details in the CDRs are not required to be
preserved and be redacted so that those details do not, even inadvertently, come
on record]direction to the concerned Mobile/Cellular Service Providers, through the
investigating agency, to preserve:-
All the details in the CDR
with respect to mobile numbers of revisionist Kapil Arora and his wife
Garima Arora
for period of four days i.e. 21.10.2024 to 24.10.2024.
32. The revision petition is dismissed as far as the CDRs with respect to the mobile
numbers of the competitors namely Jawadh and Ashu @ Anas are concerned.
33. The purpose of getting the records preserved is that the same may not get deleted with
time, so that the records are available to the revisionist at the appropriate stage, when
he gets the opportunity to prove his defence. It is made clear that no other details
except the location and time needs to be preserved in the CDR by the mobile service
providers in terms of this order. It is also made clear that the record is not required to
be produced before the Court at this stage and may be summoned at relevant stage, if
required.
34. The prayers in the revision petition are allowed to this limited extent only.
DLSH010074192024 Page 18 of 18
CR No. 224/2025
Kapil Arora Vs. CGST North
35. In view of the aforesaid discussion, the impugned order dated 02.04.2025 is partly set-
aside with the aforesaid directions.
Copy be sent to IO for compliance.
Compliance report be filed before Ld Trial Court within one month.
Revision Petition is disposed of accordingly.
Revision file be consigned to Record Room.
TCR, if any, be sent back alongwith copy of this judgment.
Digitally signed by
SAURABH
Announced in the open Court PARTAP
SAURABH PARTAP
SINGH LALER
on 9th June 2025 SINGH LALER
Date: 2025.06.09
18:07:49 +0530
(Saurabh Partap Singh Laler)
ASJ-05 New Delhi
Patiala House Courts
Delhi/9.6.2025
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