MANGAT RAI SHORI Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) This is an application under Sec. 482 of the Code of Criminal Procedure challenging the order dtd. 8/1/2020 passed by the Special Judge (C.B.I.), Gr. Bombay in C.B.I. Special Case No.95 of 2009 allowing Application Exhibit No.150 and recalling PW-11 and PW-17 to depose in the Court for the assigned purpose.

(2.) R.C. No.01(A)2009-CBI/ACU-VII/New Delhi was registered on 29/1/2009, on the basis of preliminary enquiry No.01/(A)2008/CBI/ACU-VII under Sec. 120-B IPC r/w Ss. 11 & 12 and 13(2) r/w Sec. 13(1)(d) of Prevention of Corruption Act, 1988 against Shri. Mangal Rai Shori, the then Addl. S.P. CBI, EOW, Mumbai and Shri. Ravinder Kumar, Superintendent customs alleging that, Mr. Shori has informed contemplated action to Shri. Ravinder Kumar. Mr. Shori obtained pecuniary favour in the form of AIR tickets from Shri. Ravinder Kumar. These tickets were booked through Shri. Sunil Suri. Two cases were registered on 24/9/2005 against Shri. Ravinder Kumar. Mobile No.9869408494 and 9819826520 of Mr. Shori were intercepted during August 2005 to November 2005. From the transcription of intercepted calls it is evident that Mr. Shori and Mr. Ravinder Kumar had talked frequently with each other. Mr. Shori passed information regarding two cases. Transcription also contains the conversation which shows that, Mr. Shori had demanded illegal gratification from Ravinder Kumar in the form of tickets for Journey to Delhi. Charge-sheet was filed.

(3.) Learned Advocate for the applicants submitted that the application was preferred belatedly after examining 19 witnesses. It is a settled law that the application under Sec. 311 of Cr.P.C. cannot be made to fill up the lacuna. The grounds for recalling PW-17 was that, Certificate under Sec. 65-B of the Evidence Act is required to be obtained from the said witness in respect of a C.D. marked as Exhibit-B (Article "M") which is in fact the copy of another C.D. marked as (Art. N/2). Thus, the said CD marked as Exhibit-B for which the Certificate under Sec. 65-B(4) of the Evidence Act is intended to be obtained is in fact the copy of another CD marked as 'A' (Article N/2) on which some data has been said to be copied from the hard disk of the computer allegedly containing original recordings of intercepted calls of two mobiles. CD marked as 'A' is not a listed document but was produced by prosecution at belated stage. The trial Court has allowed the application of prosecution for recalling PW-17 for obtaining certificate under Sec. 65-B(4) of the Evidence Act and CD marked as 'B' which is a copy of another CD which is said to be containing output of a computer and which itself is secondary evidence subject to production of a certificate under Sec. 65-B(4) of the Evidence Act. There is no question of permitting the prosecution to obtain certain clarifications as mentioned in the certificate given by PW-11. The order passed by the learned Judge is contrary to the well established principles of law. The evidence tried to be adduced by the prosecution has no legal sanctity.