Vinit Kumar vs. CBI & Ors.

In the High Court of Bombay
Criminal Appellate Jurisdiction
Writ petition 2367 of 19(J)
Petitioner
Vinit Kumar
Respondents
Central Bureau of Investigation & Ors.
Date of Judgement
22nd October 2019
Bench
Hon’ble Justice Ranjit More; Hon’ble Justice N. J. Jamdar

Background:

The Landmark Judgement given by two Judges bench of Hon’ble Supreme Court(PUCL supra) identified Privacy as Fundamental Right under Article 21 of The Constitution of India which was reaffirmed by 9 Judges Constitutional Bench  Judgement of Supreme Court of India. The central government has also framed rules as procedural safeguards.

Landmark Cases referred:

• PUCL v. Union of India
• K. S. Puttaswamy v. Union of India
• M.P. Sharma v. Satish Chandra
• Kharak Singh
• R. M. Malkhani v. State of Maharashtra
• Dharambir Khattar v. Union of India

Facts of the Case:

1. Ministry of Home Affairs, Government of India issued orders dated 29^th October, 2009, 18^th December, 2009 and 24^th February, 2010 directing interception of telephone calls.
2. The petitioner is a businessman and is accused in Special CBI Case No. 99 of 2011 arising out of FIR No. RC. 0682010003 of 11^th April, 2011, lodged by CBI. In the case CBI alleged that petitioner is a bribe-giver, who gave a bribe of Rs. 1000000/- to Public Servant for getting certain credit related favour.
3. Respondents have taken varying stands in various proceedings before the trial Court from time to time on the issue of compliance of rules in response to the applications made by the petitioner.

Issues:

• Whether the orders dated 29^th October, 2009 , 18^th December ,2009 and 24^th February , 2010 are ultra vires of Section 5(2) of the Indian Telegraph Act, 1885 , and Rule 419A(17) introduced by G.S.R. 193 of 1^st March , 2007 ?
• Consequences of Non compliance of Rule 419A(17) introduced by G.S.R. 193 of 1^st March , 2007
• Whether evidence collected through a procedure violating some rules framed under the Act be relied upon as evidence in trial?

Judgement:

• The Court relied on the view of Hon’ble Supreme Court in PUCL (Supra) in interpretation of S. 5(2) of the Indian Telegraph Act, 1885 that when either of two conditions are not in existence, it is impermissible to tap telephone. The court observed that from the affidavits filed by the respondents and any impugned orders, the respondents could not justify any ingredients of risk to people at large. The Supreme Court in PUCL case observed that neither occurrence of public emergency nor interest of public safety is secretive situations.  These situations would be apparent to a reasonable person. So , the court being satisfied that neither occurrence of public emergency nor public safety are justifiable from orders and affidavits filed by respondents ,held the 3 impugned orders ultra vires of Section 5(2) of the Act.
• The Court has observed that the respondents have taken diversed stands in various proceedings before the trial Court from time to time regarding approval of review committee and possession of the recording. The respondents claimed that the 3 interception orders are different and are not continuation of the earlier order. But it is observed that the 3 impugned orders bear the same number and ex-facie appears to have been issued in similar manner before the expiry of the earlier order. The Court observed that this action of issuing successive orders or repeated orders by the competent authority without making a reference to the review committee within 7 working days or there being scrutiny by the review committee under sub rule (1) of Rule 419 (A) and sub rule (17) of Rule 419 (A) respectively is in clear breach of the statute, Rules and the Constitution of India. There being no record to show compliance, the Court said that it is wholly impermissible and and in violation of directions issued in PUCL case by Supreme Court and affirmed by 9 judge constitution bench Judgement in K. T. Puttaswamy(supra).
• The Hon’ble High Court referred to KLD Nagashree v. Government of India (AIR 2007 AP 102) and observed that the non compliance of the procedure under Rule 419 A is undoubtedly fatal. Since the impugned order is in contravention of the Section 5(2) of the Indian Telegraph Act, it is declared illegal and the consequential action in intercepting telephone is automatically rendered unauthorized. Hence whater information is obtained pursuant to the impugned order cannot be taken into consideration for whatsoever purpose.
• The Hon’ble High Court distinguished Dharambir Khattar v. Union of India (2012 SCC Online Delhi), R L Malkhani v. State of Maharashtra (1973 (1) SCC 471) , Navjot Sandhu (2005 (11) SCC 600) , Pooran Mal v. Director of Inspection from the present case on the basis of difference in material  facts and benefit of authoritative pronouncement of the nine judges constitution bench Judgement in K. T. Puttaswamy(supra) which the instant case has. And hence the instant case would be looked into in the light of PUCL (supra), K.T. Puttaswamy and Rule 419A (17) introduced by central government.
• The High Court, considering the above discussed issues, found the impugned order ultra vires to the Act, and Rule 419 A (17). The court observed that non compliance of guidelines issued by Hon’ble Supreme Court in PUCL (supra) and affirmed by the nine judges constitution bench Judgement in K. T. Puttaswamy (supra) in order to secure evidence against the citizens would lead to arbitrariness and hence the High Court quashd and set aside all the three impugned orders and consequently directed the destruction of the intercepted messages.

Ratio Decidendi:

The Court is of the view that the as per S. 5(2) of Indian Telegraph Act, 1885, an order can be issued only in cases of public emergency and of the public safety. The Hon’ble Supreme Court has observed in PUCL (supra) case that neither the occurrence of public emergency nor the interests of public safety are secretive situations. It is apparent to the reasonable person.

From the affidavits filed by respondents or charge sheet, the respondent could not justify any ingredient of risk to public and even from impugned orders and record no situation showing interest of public safety is borne out.  The impugned orders neither have sanction of law nor issued for legitimate aim. These orders could not satisfy the test of “Principles of proportionality and legitimacy” as laid down by nine judges’ constitutional bench in K.T. Puttaswamy (Supra) case. Hence the three impugned orders are liable to be set aside.

Conclusion:

The right to privacy is a fundamental right as identified by PUCL (supra) and affirmed by K T Puttaswamy (supra) case. Any order for interception of telephone calls should not be ultra vires to the Indian Telegraph Act and Rules 419A (17). It should be in accordance with the directions issued by the Supreme Court in PUCL (supra) case and Rules framed by Central Government.

“The views of the authors are personal“