Case: Amar Singh Vs. Union of India &amp; Others

2. The petitioners case is that a request dated 22nd October, 2005 was issued from the office of the Joint Commissioner of Police (Crime), New Delhi to the Nodal Officer, Reliance Infocom Ltd., Delhi, for the interception of all the calls made from or to the telephone numbers of the petitioner. This request was subsequently followed by an order dated 9th November, 2005, from the Principal Secretary (Home), Government of National Capital Territory of Delhi, authorising the said request. The case of respondent no. 8 is that the said orders were acted upon by it, and the petitioners conversations were intercepted. However, the Union of India, and the National Capital Territory of Delhi denied the allegations. They submitted that said orders annexed to the petition, purporting to be issued by the Joint Commissioner of Police, (Crime), New Delhi, and the Principal Secretary (Home), Government of National Capital Territory of Delhi are fabricated with forged signatures and they are not genuine. Alleging forgery, a criminal case in that respect had already been initiated.3. In the course of the hearing, by filing an interlocutory application (no.2 of 2006) the petitioner submitted that the recordings of the said conversations had been made available to some journalists/news agencies. In view of these submissions, this Court directed the electronic and the print media not to publish any part of the said conversations, vide Courts order dated 27th February, 2006.4. Various applications for intervention were preferred, especially by civil society groups. These applications were allowed. The interveners argued that the conversations by the petitioner were mostly made in his capacity as a public functionary and, therefore, were public in nature, and the citizens of the country have a right to know their contents under Article 19(1)(a) of the Constitution. A prayer was therefore made by them to vacate the order of injunction.5. In this matter pursuant to the direction of this Court, a detailed affidavit has been filed by one R. Chopra, Joint Secretary (Home Department) of the Government of National Capital Territory of Delhi, in which it has been clearly stated that the Principal Secretary (Home) in the Government of National Capital Territory of Delhi, is authorised by the Lieutenant Governor of Delhi to exercise powers to order interception of phone conversation for a period specified in such orders in accordance with the provisions of Section 5 of Indian Telegraph Act, 1885 (the said Act). From the order of authorisation dated 10th December, 1997, it appears that the same was issued pursuant to the judgment of this Court dated 18th December, 1996 in Peoples Union for Civil Liberties (supra) and also Section 5 (2) read with the Government of India, States Ministry Notification No. 104-J, dated 24th October, 1950.6. In the said affidavit it has been clearly stated by the deponent that no request for interception is examined by the Home Department unless it is accompanied by a confirmation that the same has the prior approval of the Commissioner of Police, Delhi. It was clarified that no Joint Commissioner of Police or police officer of any other rank can directly request for an interception, without first obtaining a prior approval of the Commissioner of Police. It was also clarified that no phone interception order is suo motu issued by the Principal Secretary (Home) without a request from the Government agency. Majority of interception requests, received by the Principal Secretary (Home), are from Delhi Police.7. In respect of the petitioners telephone no. (011 39565414), the deponent specifically stated that no order for interception of the said number was ever issued either on 9th November, 2005, or earlier, or for that matter, even later. The categorical denial in this respect in the said affidavit is set out below.(v)...This categorical denial is being submitted after careful scrutiny of all the relevant records. Also it is respectfully stated on the basis of careful scrutiny of records, that no request for interception of the petitioners telephone number 011 39565414 was received by the Principal Secretary (Home)/respondent no. 4 from any Police Officer or for that matter any agency, governmental / police or otherwise.(vi) In view of this, the order bearing no. F. 5/1462/2004 - HG dated 9.11.2005, a copy of which is appended to the writ petition at page 28 as Annexure B, and having an endorsement No. F. 5/1462/2004 - HG/7162 of the same date, and purportedly issued under the signature of the then Principal Secretary (Home), is forged and fabricated document.8. An affidavit has also been filed on behalf of Union of India by one Mr. J.P.S. Verma, Deputy Secretary, Ministry of home affairs, North Block, New Delhi, in which reference was made to certain orders passed by this Court in this petition, and thereafter, reference was also made to the judgment of this Court in Peoples Union for Civil Liberties (supra), and the various provisions of Indian Telegraph Act. The Central Government made it very clear that it was fully aware of the sensitivity relating to the conversations on telephone, and the privacy rights thereon. Reference was also made to technological measures to avoid unauthorised interceptions and the changed security scenario.9. In this matter an additional affidavit has been filed by Shri Alok Kumar, Deputy Commissioner of Police, Headquarters. In that affidavit it has been stated, that on inquiry by the Additional Police Commissioner (Crimes), it was discovered that the purported order of Joint Commissioner of Police (Crime) and Principal Secretary (Home) on the basis of which interceptions were alleged by the petitioner were forged documents.10. Consequent on the same report, an FIR No.152/2005. had been lodged under Sections 419, 420 468, 471 and 120B of I.P.C., read with Sections 20, 21 and 26 of the Indian Telegraph Act, on 30th December, 2005. In the said investigation the statement of the petitioner was also recorded under Section 161 of the Cr.P.C. In a subsequent affidavit filed by Mangesh Kashyap, Deputy Commissioner of Police, Headquarters on 8th February, 2011, it has been stated by the deponent that the Final Report in connection with the said investigation was filed before the competent Court on 15th February, 2006 and the charges were framed on 6th February, 2010. Four accused persons in the said case were charged under Section 120B read with Sections 420 and 471 of I.P.C. and Section 25 of the Indian Telegraph Act. In addition, Bhupender Singh had been charged under Section 201, I.P.C. and Anurag Singh was charged under Section 419, I.P.C. The trial in the said case has commenced and one witness, Shri Ranjit Narain the then Joint Commissioner of Police was examined.11. Here we may point out the casual manner in which the petitioner approached the Court. The affidavit filed by the petitioner in support of his petition, and relying on which this Court issued notice on 24th January, 2006, is not at all modelled either on order XIX Rule 3 of the Code of Civil Procedure, or Order XI of the Supreme Court Rules, 1966. The relevant portion of the petitioners affidavit runs asThat I am the Petitioner in the above Writ Petition and am conversant with the facts and circumstances of the case. As such, I am competent to swearthis affidavit.2. That I have read the contents of paras 1 to 9 on pages 1 to 24 of the accompanying Writ Petition and have understood the same. I state that what is stated therein is true to my knowledge and belief.3. That I have read the accompanying List of Dates and Events from pages B to D and have understood the same. I state that what is stated therein, is true to my knowledge and

Reasoning:
24. In the instant case, the petitioner invoked the extraordinary writ jurisdiction of this Court under Article 32, without filing a proper affidavit as required in terms of Order XIX Rule 3 of the Code. Apart from the fact that the petitioner invoked Article 32, the nature of the challenge in his petition is very serious in the sense that he is alleging an attempt by the government of intercepting his phone and he is further alleging that in making this attempt the government is acting on extraneous considerations, and is virtually acting in furtherance of the design of the ruling party. It is, therefore, imperative that before making such an allegation the petitioner should be careful, circumspect and file a proper affidavit in support of his averment in the petition.In view of such disclosures in the affidavit of the Police authorities as also in the affidavit filed by Mr. Chopra on behalf of Delhi Administration, it appeared strange to this court how the service provider, respondent no. 8 could act on the basis of communications dated 22.10.2005 and 9.11.2005. To this Court, it appeared that any reasonable person or a reasonable body of persons or an institution which is discharging public duty as a service provider, before acting on an order like the one dated 9.11.2005, would at least carefully read its contents. Even from a casual reading of the purported communication dated 9.11.2005, containing so many gross mistakes, one would reasonably be suspicious of the authenticity of its text.Considering the materials on record, this Court is of the opinion that it is no doubt true that the service provider has to act on an urgent basis and has to act in public interest. But in a given case, like the present one, where the impugned communication dated 9.11.2005 is full of gross mistakes, the service provider while immediately acting upon the same, should simultaneously verify the authenticity of the same from the author of the document. This Court is of the opinion that the service provider has to act as a responsible agency and cannot act on any communication. Sanctity and regularity in official communication in such matters must be maintained especially when the service provider is taking the serious step of intercepting the telephone conversation of a person and by doing so is invading the privacy right of the person concerned and which is a fundamental right protected under the Constitution, as has been held by this Court.39. Therefore, while there is urgent necessity on the part of the service provider to act on a communication, at the same time, the respondent No.8 is equally duty bound to immediately verify the authenticity of such communication if on a reasonable reading of the same, it appears to any person, acting bona fide, that such communication, with innumerable mistakes, falls clearly short of the tenor of a genuine official communication. Therefore, the explanation of the service provider is not acceptable to this Court. If the service provider could have shown, which it has not done in the present case, that it had tried to ascertain from the author of the communication, its genuineness, but had not received any response or that the authority had accepted the communication as genuine, the service providers duty would have been over. But the mere stand that there is no provision under the rule to do so is a lame excuse, especially having regard to the public element involved in the working of the service provider and the consequential effect it has on the fundamental right of the person concerned.Even though in the order of this Court dated 27th February, 2006, there is an observation that respondent No. 7 has been impleaded unnecessarily, the said respondent has not been deleted and in the amended cause title also, respondent No. 7 remains impleaded. The averments against the said respondent were not withdrawn by the petitioner.It therefore appears that the petitioner has been shifting his stand to suit his convenience. In 2006, the gravamen of the petitioners grievances was against the respondent no. 7, and the basis of his petition was the information that he derived from the said Anurag Singh. On the basis of such a petition, he invoked the jurisdiction of this Court and an interim order was issued in his favour, which is still continuing.Apart from the aforesaid, in the writ petition which was filed on 21st January, 2006, there is no mention of the fact that the petitioner gave a statement under section 161, Code of Criminal Procedure in connection with the investigation arising out of FIR lodged on 30th December, 2005. From the records of the case it appears the petitioner gave 161 statement on 13th January, 2006. In the writ petition there is a complete suppression of the aforesaid fact. A statement under Section 161 is certainly a material fact in a police investigation in connection with an FIR. The investigation is to find out the genuineness of those very documents on the basis of which the writ petition was moved. In that factual context, total suppression in the writ petition of the fact that the petitioner gave a 161 statement in that investigation is, in our judgment, suppression of a very material fact.52. It is, therefore, clear that writ petition is frivolous and is speculative in character. This Court is of the opinion that the so called legal questions on tapping of telephone cannot be gone into on the basis of a petition which is so weak in its foundation.This Court, therefore, dismisses the writ petition and vacates the interim order and is not called upon to decide the merits, if any, of the petitioners case. No case of tapping of telephone has been made out against the statutory authorities in view of the criminal case which is going on and especially in view of the petitioners stand that he is satisfied with the investigation in that case. The petitioner has withdrawn its case against the respondent No.7. In that view of the matter this Court makes it clear that the petitioner, if so advised, may proceed against the service provider, respondent No.8, before the appropriate forum, in accordance with law. This Court, however, makes it clear that it does not make any observation on the merits of the case in the event the petitioner initiates any proceeding against respondent No.8.65. This court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order XIX Rule 3 of the CPC or with Order XI Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court.66. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik (supra), Barium Chemicals Ltd. (supra) and A.K.K. Nambiar (supra) and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said rules.67. These rules, reiterated by this Court time and again, are aimed at protecting the Court against frivolous litigation must not be diluted or ignored. However, in practice they are frequently flouted by the litigants and often ignored by the Registry of this Court. The instant petition is an illustration of the same. If the rules for affirming affidavit according to Supreme Court were followed, it would have been difficult for the petitioner to file this petition and so much of judicial time would have been saved. This case is not isolated instance. There are innumerable cases which have been filed with affidavits affirmed in a slipshod manner.