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2019 SCC OnLine Bom 3155 : (2020) 1 AIR Bom R (Cri) 1

In the High Court of Bombay

(BEFORE RANJIT MORE AND N.J. JAMADAR, JJ.)

Vinit Kumar … Petitioner;

Versus
Central Bureau of Investigation and Others …
Respondents.
Writ Petition No. 2367 of 2019
Decided on October 22, 2019, [Arguments Concluded on : August
22, 2019]
Advocates who appeared in this case:
Mr. Vikram Nankani, Senior Advocate with Dr. Sujay Kantawala i/b
Ishan Srivastava for the Petitioner.
Ms. Rebeca Gonsalvez for Respondent No. 1.
Mrs. A. S. Pai, APP for the Respondent-State.
Mrs. P. H. Kantharia for Respondent Nos. 2 and 4.
The Judgment of the Court was delivered by
RANJIT MORE, J.:— The petitioner has impugned before us the
th th th
orders dated 29 October, 2009, 18 December, 2009 and 24
February, 2010, which directed interception of telephone calls by
respondent No. 2 on the ground of being ultra vires of Section 5(2) of
the Indian Telegraph Act, 1885 (for short “the Act”), non-compliance of
Rules made thereunder, and for being in violation of the fundamental
rights guaranteed under Part-III of the Constitution of India. The
petitioner's case is that they ought to be quashed and intercepted
messages obtained thereunder shall be destroyed as directed by the
Hon'ble Supreme Court in People's Union for Civil Liberties (for short
“the PUCL”) v. Union of India, [(1997) 1 SCC 301] and as provided in
Rule 419A(17) introduced by G.S.R.193 of 1st March, 2007 (w.e.f. 12th
March, 2007) The petitioner is also relying on a Nine Judge Constitution
Bench judgment in K.S. Puttaswamy v. Union of India, [(2017) 10 SCC
1] for seeking enforcement of his fundamental rights under Articles 14
and 21 of the Constitution of India.
2. As per petitioner, the alleged illegally intercepted telephonic
recordings contained in the charge-sheet and all material collected on
the basis of such alleged illegally intercepted telephonic recordings
ought to be set at naught. The petitioner submits that it is settled law
that if the foundation is removed, the structure falls and that the legal
maxim “sublato fundamento cadit opus” squarely applies in the instant
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case.
3. Section 5 of the 1885 Act deals with the power of the Government
to take possession of licensed telegraphs and to order interception of
messages. Sub-section (2) of Section 5, for our purpose is relevant,
which reads as follows:
“5.(1)
(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 the 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.]”
[Underlined emphasis supplied]
4. In PUCL (supra), a two Judge Bench of the Apex Court has
observed as follows:
18. The right to privacy-by itself-has not been identified under the
Constitution. As a concept it may be too broad and moralistic to
define it judicially. Whether right to privacy can be claimed or has
been infringed in a given case would depend on the facts of the said
case. But the right to hold a telephone conversation in the privacy of
one's home or office without interference can certainly be claimed as
“right to privacy”. Conversations on the telephone are often of an
intimate and confidential character. Telephone-conversation is a part
of modern man's life. It is considered so important that more and
more people are carrying mobile telephone instruments in their
pockets. Telephone conversation is an important facet of a man's
private life. Right to privacy would certainly include telephone-
conversation in the privacy of one's home or office. Telephone-
tapping would, thus, infract Article 21 of the Constitution of India
unless it is permitted under the procedure established by law.
28. Section 5(2) of the Act permits the interception of messages
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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.
29. The first step under Section 5(2) of the Act, therefore, is the
occurrence of any public emergency of the existence of a public-
safety interest. Thereafter the competent authority under Section 5
(2) of the Act is empowered to pass an order of interception after
recording its satisfaction that it is necessary or expedient so to do in
the interest of (i) sovereignty and integrity of India, (ii) the security
of the State, (iii) friendly relations with foreign States, (iv) public
order or (v) for preventing incitement to the commission of an
offence. When any of the five situations mentioned above to the
satisfaction of the competent authority require then the said
authority may pass the order for interception of messages by
recording reasons in writing for doing so.
30. The above analysis of Section 5(2) of the Act shows that so far
the power to intercept messages/conversations is concerned the
Section clearly lays-down the situations/conditions under which it
can be exercised. But the substantive law as laid down in Section 5
(2) of the Act must have procedural backing so that the exercise of
power is fair and reasonable. The said procedure itself must be just,
fair and reasonable. It has been settled by this Court in Maneka
Gandhi v. Union of India, that “procedure which deals with the
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modalities of regulating, restricting or even rejecting a fundamental

right falling within Article 21 has to be fair, not foolish, carefully
designed to effectuate, not to subvert, the substantive right itself”.
Thus, understood, “procedure” must rule out anything arbitrary,
freakish or bizarre. A valuable constitutional right can be canalised
only by civilised processes”.
34. ………….The power to make rules under Section 7 of the Act
has been there for over a century but the Central Government has
not thought it proper to frame the necessary rules despite severe
criticism of the manner in which the power under Section 5(2) has
been exercised. It is entirely for the Central Government to make
rules on the subject but till the time it is done the right to privacy of
an individual has to be safeguarded. In order to rule-out
arbitrariness in the exercise of power under Section 5(2) of the Act
and till the time the Central Government lays down just, fair and
reasonable procedure under Section 7(2)(b) of the Act, it is
necessary to lay down procedural safeguards for the exercise of
power under Section 5(2) of the Act so that the right to privacy of a
person is protected.
[Emphasis supplied]
5. Pursuant to the above observations, the Hon'ble Supreme Court in
PUCL (Supra) was pleased to order and direct inter alia the following as
procedural safeguards:
“35-We therefore direct as under….
9. There shall be a Review Committee consisting of Cabinet
Secretary, the Law Secretary and the Secretary, Telecommunication
at the level of the Central Government. The Review Committee at the
State level shall consist of Chief Secretary, Law Secretary and
another member, other than the Home Secretary, appointed by the
State Government.
(a) The Committee shall on its own, within two months of the
passing of the order by the authority concerned, investigate
whether there is or has been a relevant order under Section 5
(2) of the Act. Where there is or has been an order whether
there has been any contravention of the provisions of Section 5
(2) of the Act.
(b) If on an investigation the Committee concludes that there has
been a contravention of the provisions of Section 5(2) of the
Act, it shall set aside the order under scrutiny of the
Committee. It shall further direct the destruction of the copies
of the intercepted material.
(c) If on investigation, the Committee comes to the conclusion
that there has been no contravention of the provisions of
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Section 5(2) of the Act, it shall record the finding to that effect.
[Emphasis supplied]
6. The Hon'ble Supreme Court in PUCL (Supra) thus categorically
held and directed that:—
I. Right to privacy would certainly include telephonic conversation in
the privacy of one's house or office. Telephone tapping would,
thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law.
II. “Occurrence of 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 1885 Act, and without them, the authorities
have no jurisdiction to exercise the powers under the said Section
to take resort to telephone tapping even though there is
satisfaction that it is necessary or expedient so to do in the
interest of sovereignty and integrity of India etc.
III. The expression “public safety” means the State or Condition of
freedom from danger or risk for the people at large.
IV. Neither the occurrence of public emergency nor the interest of
public safety are secretive conditions or situations. Either of the
situation would be apparent to a reasonable person.
V. The substantive law as laid down in Section 5(2) of the Act must
have procedural safeguards for this valuable constitutional right
as settled in Maneka Gandhi v. Union of India, that “procedure
which deals with the modalities of regulating, restricting or even
rejecting a fundamental right falling within Article 21 of the
Constitution of India has to be fair, not foolish, carefully designed
to effectuate, not to subvert, the substantive right itself”, and the
‘procedure’ must rule out any thing arbitrary, freakish and bizarre.
VI. To safeguard and protect the fundamental right to privacy, and in
order to rule out arbitrariness in the exercise of power under
Section 5(2) of the Act, the Hon'ble Supreme Court laid down
procedural safeguards for the exercise of power under Section 5
(2) of the Act and inter alia directed that there shall be a Review
Committee, which shall on its own, within two months of the
passing of the order by the authority concerned, investigate,
whether there has been any contravention of the provisions of
Section 5(2) of the Act.
VII. Not only this, the Hon'ble Supreme Court further directed that if
on an investigation, the Committee concludes that there has been
a contravention of the provisions of Section 5(2) of the Act, it
shall set-aside the order under scrutiny of the committee, and
shall further direct the destruction of the copies of the intercepted
material.
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VIII. The Hon'ble Supreme Court further directed that if on

investigation, the Committee comes to the conclusion that there
has been no contravention of the provisions of Section 5(2) of the
Act, it shall record the finding to that effect.
7. These directions not only forge procedural safeguards into the
matters of infringement of right to privacy, but also provide for a just
and reasonable procedure. These directions also provide procedural
guarantee against the abuse of any illegal interference by the
guaranteed destruction of the copies of the intercepted material, in a
case where pre-requisite for invoking Section 5(2) i.e. “occurrence of
any public emergency” or “in the interest of public safety” is non-
existent. Needless to say that the aforesaid directions are binding on us
in view of Article 141 and enforceable through India under Article 142
of the Constitution of India.
8. The proposition that illegal tapping of telephone conversation
violates right to privacy is now accepted and reinforced as guaranteed
fundamental right under Article 21 of the Constitution of India, by a
nine Judge Constitution Bench decision in K.S. Puttaswamy v. Union of
India, [(2017) 10 SCC 1], by overruling the earlier Constitution Bench
judgments, which did not consider right to privacy as fundamental
rights, analogues to the American Fourth Amendment, viz. M.P. Sharma
v. Satish Chandra [AIR 1954 SC 300], or held that invasion of privacy
is not an infringement of fundamental right guaranteed by Part III of
the Constitution viz. Kharak Singh [AIR 1963 SC 1295]. It has now
been held by the Constitution Bench in K.S. Puttaswamy (supra) that
the right to privacy is protected by the Constitution as an intrinsic part
of the right to life and personal liberty under Article 21 of the
Constitution of India and as a part of the freedom guaranteed by Part-
III of the Constitution of India.
9. Moreover, the view taken in PUCL's case (supra) was affirmed by
the said nine Judge Bench in K.S. Puttaswamy (supra) with following
observations:
“68. In a decision of a Bench of two judges of this Court in PUCL,
the Court dealt with telephone tapping. The petitioner challenged the
constitutional validity of Section 5(2) of the Indian Telegraph Act,
1885 and urged in the alternative for adopting procedural safeguards
to curb arbitrary acts of telephone tapping.
69…………. Telephone conversations were construed to be an
important ingredient of privacy and the tapping of such
conversations was held to infringe Article 21, unless permitted by
‘procedure established by law’ . .
The Court also held that telephone tapping infringes the
guarantee of free speech and expression under Article 19(1)(a)
unless authorized by Article 19(2). The judgment relied on the
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protection of privacy under Article 17 of the International Covenant

on Civil and Political Rights (and a similar guarantee under Article 12
of the Universal Declaration of Human Rights) which, in its view,
must be an interpretative tool for construing the provisions of the
Constitution. Article 21, in the view of the Court, has to be
interpreted in conformity with international law. In the absence of
rules providing for the precautions to be adopted for preventing
improper interception and/or disclosure of messages, the
fundamental rights under Articles 19(1)(a) and 21 could not be
safeguarded. But the Court was not inclined to require prior judicial
scrutiny before intercepting telephone conversations. The Court ruled
that it would be necessary to lay down procedural safeguards for the
protection of the right to privacy of a person until Parliament
intervened by framing rules under Section 7 of the Telegraph Act.
The Court accordingly framed guidelines to be adopted in all cases
envisaging telephone tapping.
70. The need to read the fundamental constitutional guarantees
with a purpose illuminated by India's commitment to the
international regime of human rights' protection also weighed in the
decision. Section 5(2) of the Telegraph Act was to be regulated by
rules framed by the Government to render the modalities of
telephone tapping fair, just and reasonable under Article 21. The
importance which the Court ascribes to privacy is evident from the
fact that it did not await the eventual formulation of rules by
Parliament and prescribed that in the meantime, certain procedural
safeguards which it envisaged should be put into place.
…..
512. Similarly, in PUCL v. Union of India, (1997) 1 SCC 301, this
Court dealt with telephone tapping as follows:……
“17. We have, therefore, no hesitation in holding that right to
privacy is a part of the right to “life” and “personal liberty” enshrined
under Article 21 of the Constitution. Once the facts in a given case
constitute a right to privacy, Article 21 is attracted. The said right
cannot be curtailed “except according to procedure established by
law”.
18. The right to privacy—by itself—has not been identified under
the Constitution. As a concept it may be too broad and moralistic to
define it judicially. Whether right to privacy can be claimed or has
been infringed in a given case would depend on the facts of the said
case. But the right to hold a telephone conversation in the privacy of
one's home or office without interference can certainly be claimed as
“right to privacy”. Conversations on the telephone are often of an
intimate and confidential character. Telephone conversation is a part
of modern man's life. It is considered so important that more and
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more people are carrying mobile telephone instruments in their

pockets. Telephone conversation is an important facet of a man's
private life. Right to privacy would certainly include telephone
conversation in the privacy of one's home or office. Telephone-
tapping would, thus, infract Article 21 of the Constitution of India
unless it is permitted under the procedure established by law.”
The Court then went on to apply Article 17 of the International
Covenant on Civil and Political Rights, 1966 which recognizes the
right to privacy and also referred to Article 12 of the Universal
Declaration of Human Rights, 1948 which is in the same terms. It
then imported these international law concepts to interpret Article 21
in accordance with these concepts.”
10. Thus, now the judgment in PUCL (supra) has to be seen in the
light of observations contained in the nine Judge Constitution Bench
judgment. The nine judge judgment also noticed the earlier judgments
in R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 and
observed as under:
“51. Among the early decisions of this Court following Kharak
Singh was RM Malkani v. State of Maharashtra. In that case, this
Court held that Section 25 of the Indian Telegraph Act, 1885 was not
violated because : (R.M. Malkani Case, SCC p. 476, para 20)
“20. Where a person talking on the telephone allows another
person to record it or to hear it, it cannot be said that the other
person who is allowed to do so is damaging, removing, tampering,
touching machinery battery line or post for intercepting or
acquainting himself with the contents of any message. There was no
element of coercion or compulsion in attaching the tape recorder to
the telephone.”
This Court followed the same line of reasoning as it had in Kharak
Singh while rejecting a privacy based challenge under Article 21.
Significantly, the Court observed that : (R.M. Malkani Case, SCC p.
479, para 31)
“31. Article 21 was invoked by submitting that the privacy of the
appellant's conversation was invaded. Article 21 contemplates
procedure established by law with regard to deprivation of life or
personal liberty. The telephone conversation of an innocent citizen
will be protected by Courts against wrongful or high handed
interference by tapping the conversation. The protection is not for
the guilty citizen against the efforts of the police to vindicate the law
and prevent corruption of public servants. It must not be understood
that the Court will tolerate safeguards for the protection of the
citizen to be imperilled by permitting the police to proceed by
unlawful or irregular methods.”
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In other words, it was the targeted and specific nature of the

interception which weighed with the Court, the telephone tapping
being directed at a guilty person. Hence the Court ruled that the
telephone conversation of an innocent citizen will be protected
against wrongful interference by wiretapping.
[Emphasis supplied]
11. Evidently, the nine Judge Bench was of the view that the
judgment in R.M. Malkani (supra) follows the same line of reasoning as
it held in Kharak Singh (supra), as attaching tape recorder to the
telephone was not considered as invasion of fundamental right to
privacy under Article 21 of the Constitution of India. Kharak Singh
(supra) has now been overruled.
12. The 9 Judge Constitution Bench further held that:
“265. But the important point to note is that when a right is
conferred with an entrenched constitutional status in Part III, it
provides a touchstone on which the validity of executive decision
making can be assessed and the validity of law can be determined
by judicial review.
313. Privacy has been held to be an intrinsic element of the right
to life and personal liberty under Article 21 and as a constitutional
value which is embodied in the fundamental freedoms embedded in
Part III of the Constitution. Like the right to life and liberty, privacy
is not absolute. The limitations which operate on the right to life and
personal liberty would operate on the right to privacy. Any
curtailment or deprivation of that right would have to take place
under a regime of law. The procedure established by law must be
fair, just and reasonable. The law which provides for the curtailment
of the right must also be subject to constitutional safeguards.
317. ………. The first part of the decision in Kharak Singh which
invalidated domiciliary visits at night on the ground that they
violated ordered liberty is an implicit recognition of the right to
privacy. The second part of the decision, however, which holds that
the right to privacy is not a guaranteed right under our Constitution,
is not reflective of the correct position. Similarly, Kharak Singh's
reliance upon the decision of the majority in Gopalan is not reflective
of the correct position in view of the decisions in Cooper and in
Maneka. Kharak Singh to the extent that it holds that the right to
privacy is not protected under the Indian Constitution is overruled.
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute right. A
law which encroaches upon privacy will have to withstand the
touchstone of permissible restrictions on fundamental rights. In the
context of Article 21 an invasion of privacy must be justified on the
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basis of a law which stipulates a procedure which is fair, just and

reasonable. The law must also be valid with reference to the
encroachment on life and personal liberty under Article 21. An
invasion of life or personal liberty must meet the three-fold
requirement of (i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the objects
and the means adopted to achieve them.
…
428.2 The right to privacy is inextricably bound up with all
exercises of human liberty - both as it is specifically enumerated
across Part III, and as it is guaranteed in the residue under Article
21. It is distributed across the various articles in Part III and,
mutatis mutandis, takes the form of whichever of their enjoyment its
violation curtails.
428.3 Any interference with privacy by an entity covered by
Article 12's description of the ‘state’ must satisfy the tests applicable
to whichever one or more of the Part III freedoms the interference
affects.
525. It is clear that Article 21, more than any of the other Articles
in the fundamental rights chapter, reflects each of these
constitutional values in full, and is to be read in consonance with
these values and with the international covenants that we have
referred to. In the ultimate analysis, the fundamental right of
privacy, which has so many developing facets, can only be developed
on a case to case basis. Depending upon the particular facet that is
relied upon, either Article 21 by itself or in conjunction with other
fundamental rights would get attracted.
526. But this is not to say that such a right is absolute. This right
is subject to reasonable regulations made by the State to protect
legitimate State interests or public interest. However, when it comes
to restrictions on this right, the drill of various Articles to which the
right relates must be scrupulously followed. For example, if the
restraint on privacy is over fundamental personal choices that an
individual is to make, State action can be restrained under Article 21
read with Article 14 if it is arbitrary and unreasonable; and under
Article 21 read with Article 19(1)(a) only if it relates to the subjects
mentioned in Article 19(2) and the tests laid down by this Court for
such legislation or subordinate legislation to pass muster under the
said Article. Each of the tests evolved by this Court, qua legislation
or executive action, under Article 21 read with Article 14; or Article
21 read with Article 19(1)(a) in the aforesaid examples must be met
in order that State action pass muster. In the ultimate analysis, the
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balancing act that is to be carried out between individual, societal

and State interests must be left to the training and expertise of the
judicial mind.
568. Similarly, I also hold that the “right to privacy” has multiple
facets, and, therefore, the same has to go through a process of case-
to-case development as and when any citizen raises his grievance
complaining of infringement of his alleged right in accordance with
law.
578. It is not India alone, but the world that recognises the right
of privacy as a basic human right. The Universal Declaration of
Human Rights to which India is a signatory, recognises privacy as an
international human right. The importance of this right to privacy
cannot be diluted and the significance of this is that the legal
conundrum was debated and is to be settled in the present reference
by a nine-Judges Constitution Bench.
Test : Principle of proportionality and legitimacy
638. The concerns expressed on behalf of the petitioners arising
from the possibility of the State infringing the right to privacy can be
met by the test suggested for limiting the discretion of the State:
“(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic
society for a legitimate aim;
(iii) The extent of such interference must be proportionate
to the need for such interference;
(iv) There must be procedural guarantees against abuse of
such interference.”
643. The aforesaid aspect has been referred to for purposes that
the concerns about privacy have been left unattended for quite some
time and thus an infringement of the right of privacy cannot be left
to be formulated by the legislature. It is a primal natural right which
is only being recognized as a fundamental right falling in part III of
the Constitution of India.
650. Let the right of privacy, an inherent right, be unequivocally a
fundamental right embedded in part-III of the Constitution of India,
but subject to the restrictions specified, relatable to that part. This is
the call of today. The old order changeth yielding place to new.
652. The reference is disposed of in the following terms:
652.1. The decision in M.P. Sharma which holds that the right to
privacy is not protected by the Constitution stands over-ruled;
652.2. The decision in Kharak Singh to the extent that it holds
that the right to privacy is not protected by the Constitution stands
over-ruled;
653.3. The right to privacy is protected as an intrinsic part of the
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right to life and personal liberty under Article 21 and as a part of the
freedoms guaranteed by Part III of the Constitution.
653.4. Decisions subsequent to Kharak Singh which have
enunciated the position in (iii) above lay down the correct position in
law.
13. In view of the aforesaid clear and emphatic pronunciation of law
on the subject by the Nine Judge Constitution Bench in K.S.
Puttaswami (supra), it is no longer res-integra that:—
(a) The right to privacy is recognised by the Nine Judge Bench as
inherent fundamental right having protection as an intrinsic part of
the right to life and personal liberty under Article 21 and as a part of
the freedom guaranteed by Part III of the Constitution which is
subject to specified restrictions;
(b) Any infringement of the right to privacy by State Authorities
will have to meet the following four tests based on the “Principle of
proportionality and legitimacy”:
1. The action must be sanctioned by law;
2. The proposed action must be necessary in a democratic society
for a legitimate aim;
3. The extent of such interference must be proportionate to the
need for such interference;
4. There must be procedural guarantees against abuse of such
interference.
(c) All earlier judgments suggesting to the contrary, are no longer
binding precedents. The matters of infraction of the fundamental
right to privacy would now have to necessarily satisfy the
aforesaid tests, and cannot be dealt with on the basis of the
overruled judgments in M.P. Sharma (supra) or Kharak Singh
(supra) or based thereon or on the same line of reasoning like
R.M. Malkani (supra).
14. It is at this stage, it is pertinent to note that directions
contained in PUCL (supra) are in consonance with the aforesaid 4 tests.
15. After the judgment in PUCL (supra) and before the judgment in
K.S. Puttaswamy (supra), Rules were also framed by the Central
st
Government. Relevant Rules introduced by G.S.R. 193(4) dated 1
March, 2007 (w.e.f. 12th March, 2007) read as follows:
“419. Interception or monitoring of telephone messages.- (1) It
shall be lawful for the Telegraph Authority to monitor or intercept a
message or messages transmitted through telephone, for the
purpose of verification of any violation of these rule or for the
maintenance of the equipment.
419-A. ………
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(2) Any order issued by the competent authority under sub-rule

(1) shall contain reasons for such direction and a copy of such order
shall be forwarded to the concerned Review Committee within a
period of seven working days.
(16) The Central Government and the State Government, as the
case may be, shall constitute a Review Committee. The Review
Committee to be constituted by the Central Government shall consist
of the following, namely:
(a) Cabinet Secretary — Chairman
(b) Secretary to the Government of India Incharge, Legal Affairs -
Member
(c) Secretary to the Government of India, Department of
Telecommunications — Member
The Review Committee to be constituted by a State Government
shall consist of the following, namely:
(a) Chief Secretary — Chairman
(b) Secretary Law/Legal Remembrancer Incharge, Legal Affairs —
Member
(c) Secretary to the State Government (other than the Home
Secretary)— Member
(17) The Review Committee shall meet at least once in two
months and record its findings whether the directions issued under
sub-rule (1) are in accordance with the provisions of sub-section (2)
of Section 5 of the said Act. When the Review Committee is of the
opinion that the directions are not in accordance with the provisions
referred to above it may set aside the directions and orders for
destruction of the copies of the intercepted message or class of
messages.
(18) Records pertaining to such directions for interception and of
intercepted messages shall be destroyed by the relevant competent
authority and the authorized security and Law Enforcement Agencies
every six months unless these are, or likely to be, required for
functional requirements.”
16. The petitioner before us is a businessman and is accused No. 2
in Special CBI Case No. 99 of 2011 arising out of FIR No. RC.
0682010003 of 11th April, 2011, lodged by CBI. In brief, the case of
CBI alleges that the petitioner is a bribe-giver, who gave a bribe of Rs.
10,00,000/- to accused No. 1(Public Servant-Bank Official) for getting
certain credit related favour. We are not going into the merits or
otherwise of the allegations levelled by CBI. The same can be assailed
by the petitioner in his discharge application before the Trial Court.
17. We are of the view that as per Section 5(2) of the Act, an order
for interception can be issued on either the occurrence of any public
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emergency or in the interest of the public safety. The impugned three

interception orders were issued allegedly for the reason of ‘public
safety’. As held in PUCL (supra), 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. The
expression “Public Safety” as held in PUCL (supra) means the state or
condition of freedom from danger or risk for the people at large. When
either of two conditions are not in existence, it was impermissible to
take resort to telephone tapping.
18. The Hon'ble Supreme Court in PUCL case (supra) has observed
that 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 the reasonable person.
19. Even at this stage, from the affidavits filed by the Respondents
or the charge-sheet, the Respondents could not justify any ingredients
of risk to the people at large or interest of the public safety, for having
taken resort to the telephonic tapping by invading the right to privacy.
Neither from the impugned orders nor from the record any situation
showing interest of public safety is borne out.
20. We are satisfied that in peculiar fact of the instant case, the
impugned three interception orders neither have sanction of law nor
issued for legitimate aim, as sought to be suggested. The impugned
three interception orders could not satisfy the test of “Principles of
proportionality and legitimacy” as laid down by the nine judges'
constitution bench decision in K.T. Puttaswamy (supra). We, therefore,
have no hesitation in holding that all three impugned orders are liable
to be set aside. Accordingly, we quash and set aside the same.
21. Having held so, the next question arises is as to whether any
directions for destroying the intercepted messages are warranted in a
particular case or the instant case. The answer to the said issue would
lie in ascertaining whether following directions contained in PUCL case
(supra) which are now upheld by the constitution bench decision in K.T.
Puttaswamy (supra) are mandatory:
“35. We, therefore, order and direct as under:—
9. There shall be a Review Committee consisting of Cabinet
Secretary, the Law Secretary and the Secretary, Telecommunication
at the level of the Central Government. The Review Committee at the
State level shall consist of Chief Secretary, Law Secretary and
another member, other than the Home Secretary, appointed by the
State Government.
(a) …….
(b) If on an investigation the Committee concludes that there has
been a contravention of the provisions of Section 5(2) of the
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Act, it shall set aside the order under scrutiny of the

Committee. It shall further direct the destruction of the copies
of the intercepted material.”
22. We find that there is no scope to presume that aforesaid
directions are not mandatory. It is an admitted position that Rule 419
(A)(17) which provides for destruction of intercepted messages also
adopt the said directions. We can neither permit the Respondents to
continue to ignore the directions of the Hon'ble Apex Court nor can we
ignore the same. Having held that the impugned interception orders
have been issued in contravention of the provisions of section 5(2) of
the Act, we have no option but to further direct the destruction of
intercepted messages.
23. There is another aspect which has been argued. We were shown
that CBI has taken diverse 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.
th
24. In reply dated 27 January 2016 filed by the CBI before the trial
Court, it was contended as follows:
“3. That the Applicant accused Shri. Vinit Kumar has filed the
Miscellaneous Applications before this Hon'ble Court for providing
certified copy of the prior approval of the review committee under
Rule 419(A) of Indian Telegraph Rule, 1951.
4. That, the said approvals under Rule 419(A) of the Indian
Telegraph Rule, 1951 has been filed along with the charge sheet
filed before this Hon'ble Court vide Dd-4, D-5 and D-6 and the same
has been supplied to all the accused persons along with the charge
sheet.”
th
25. In its additional reply dated 29 August 2016, the CBI has
further contended as under:
“5. It is humbly submitted that, the sanction issued by the Home
Secretary Government of India under Telegraph Rule 1951 for
intercepting the Call Data will be reviewed once in 2 months after
the approval by the Review Committee of Telegraph Authority and
the approval granted by the Home Secretary will be reviewed and if
the said approval is in accordance and no discrepancies are found,
Review Committee will not issue any orders. And if the approval is
given by the Home Secretary and not in accordance and if any
discrepancies are found, then the Review Committee shall issue the
orders to the Home Secretary, Government of India.
6. That, it is ascertained that, once the permission is granted by
the Home Secretary, Government of India under Telegraph Rule
1951, the Review Committee will issue their approval only to the
Home Secretary, Government of India and not to CBI or any other
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Agencies.”
26. Following observations are made In the order dated 18th
November 2015 passed by the trial Court:
“22. …. SPP has submitted that CBI have obtain approval, it will
be produce at the time of evidence.”
27. On behalf of CBI, one Ashok Prasad, Inspector of Police, CBI has
filed an affidavit dated 10th July 2019 opposing this petition, wherein
following averments are made:
“25. …… I say that the CBI EOB was never, an is not at present in
possession of any order of the Review Committee as aforesaid. The
CBI EOB is not aware of whether any such order was ever passed by
the Central Review Committee.
27. ……. The CBI EOW never was, and is not, in possession of any
“approval of the Review Committee”.
30. ….. As mentioned hereinabove, apart from the directions for
interception dated 29/10/2009, 18/12/2009 and 24/2/2010, the
records referred to in the aforesaid paragraphs are not in the
possession of the CBI, EOW, and therefore the CBI EOB would not be
able to produce the same. The records sought by the Petitioner/A-2
would be in the possession of the concerned Secretary who issued
the directions for interception/the Review Committee……..”
28. On behalf of the Respondent - Union of India, one Mr. Rakesh
Kumar, Secretary to Government of India, Ministry of Home Affairs has
filed an affidavit dated 8th August 2019. While relying on Rule 419A
(18), he has submitted thus in paragraphs 2 and 3:
“2. …….. Thus, as per the provision of sub Rule 18 of Rule 419A of
the Indian Telegraph Rules, 1951 all the interception order of mobile
numbers for the above periods have been destroyed through
shredding machine being more than six months old.
3. …….. Only when the Review Committee is of the opinion that
the directions are not in accordance with the provisions as per
Section 5(2) of the Telegraph Act, may set aside the directions and
orders for destruction of the copies of the intercepted message or
class of messages. Otherwise no direction is issued by the Review
Committee”
29. We deprecate taking of such varying stands by the Respondents
in the matter of alleged violation of fundamental rights.
30. The Respondents also claim that three interception orders dated
29.10.2009, 18.12.2009 and 24.2.2010 are 3 different orders and are
not continuation of the earlier order. This action of issuing successive
orders or repeated orders under sub-rule (1) of Rule 419(A) by the
competent authority without making a reference to the review
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committee within 7 working days and/or there being scrutiny by the

review committee under sub-rule (17) of Rule 419(A) is in clear breach
of the statute, Rules and the Constitution of India. All three impugned
orders in the instant case bear the same number and ex-facie appears
to have been issued in the similar manner before the expiry of period of
st th
earlier order. The 1 order dated 29 October 2009 is valid for 60 days.
Before the expiry thereof, order dated 18th December 2009 is issued for
further period of 60 days. And before the expiry of this second order,
th
third order dated 24 February 2010 is issued for further period of 60
days. There is no record produced to show that the compliance of Rules.
This is wholly impermissible and in violation of the directions issued by
the supreme Court in PUCL's case (supra), which stand affirmed by the
constitution bench judgment in K.T. Puttaswamy (supra).
31. In the instant case, now there is an admission by the
Respondent that the record have been destroyed purportedly under sub
-rule (18) of rule 419(A). The words “such” in sub-rule (18) therefore,
refers to the direction and/or to the intercepted message referred to in
previous sub-rule (17) which are not in accordance with the provisions
of sub-section (2) of section 5.
32. The findings of review committee would be either directions
being in accordance with the provisions or not. If findings are in favour
of the directions, i.e., if the directions conform to the requirements of
provisions, no further step is contemplated. However, if the findings are
that directions are not in accordance with the provisions, then Rule 419
(A)(17) further provides for setting aside the directions and orders for
destruction of the copies of intercepted messages or class of messages.
Thus, orders for destruction are contemplated in Rule 419(A)(17) if and
only if the directions so issued under rule 419(A)(1) for interception are
ultra vires of section 5(2). Significantly, the destruction of record (i.e.,
copies of the intercepted messages and or class of messages) is
mandatorily coupled with setting aside the directions for interceptions.
33. The stand of the Respondent, therefore, draws adverse inference
against the Respondent and would not put them on a better footing to
take advantage of their own wrong.
34. In KLD Nagashree v. Government of India [AIR 2007 AP 102]
while considering the rules as existed before 12.7.2007 and directing
the destruction of intercepted messages pursuant to the illegal
direction, it was observed in paragraphs 35 to 38:
“35. Keeping in view the object and purpose of the said Rules as
declared in People's Union for Civil Liberties's case (supra) and
particularly since the violation of the said provisions would result in
infraction of right to privacy of an individual which is a part of the
right guaranteed under Article 21 of the Constitution of India, I am
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of the opinion that Rule 419-A though procedural in nature is

mandatory and the non-compliance of the same would vitiate the
entire proceedings.
36. It is also relevant to note that under Sub-rule (9) if the
Review Committee is of the opinion that the directions are not in
accordance with the provisions of Rule 419-A, it is empowered to set
aside the directions and order for destruction of the copies of the
intercepted message. The fact that the consequences of non-
compliance of the procedure prescribed under Rule 419-A are also
provided under the same Rule further makes clear the intention of
the Legislature to make the said procedure mandatory. Hence, the
non-compliance of the procedure under Rule 419-A is undoubtedly
fatal.
37. At any rate, since the impugned order is also in contravention
of the substantive law as laid down in Subsection (2) of Section 5 of
the Act and is declared illegal, the consequential action of the
respondents 2 and 3 in intercepting the mobile telephone of the
petitioner is automatically rendered unauthorised. Hence, whatever
information is obtained pursuant to the order dated 17-11-2003
cannot be taken into consideration for any purpose whatsoever.
38. For the reasons stated above, the Writ Petition is allowed
declaring the impugned order dated 17-11-2003 as illegal and void
and consequently directing that the copies of the intercepted
messages pursuant to the said order shall be destroyed. No costs.”
35. We are in complete agreement with the view taken by the
Andhra Pradesh High Court which considers the rules providing for
consequences for non compliance, as well as the directions of the
supreme Court in PUCL's case (supra) while deciding this issue.
36. The Respondents relied on the judgment in Dharambir Khattar v.
Union of India [2012 SCC OnLine Del 5805] which relies on R.L.
Malkhani v. State of Maharashtra, [(1973) 1 SCC 471], State (NCT of
Delhi) Navjot Sandhu, [(2005) 11 SCC 600] and Pooran Mal v. Director
of Inspection (Investigation), [(1974) 1 SCC 345] to urge that even if
there is some violation of the rules framed under the Act in collecting
the material, such material can be relied upon as evidence during the
trial. In particular, the following observations from Dharambir (supra)
was stressed upon:
“Therefore, without going into the issue of whether there was non-
compliance of the provisions of Section 5(2) or of Rule 419-A, it is
clear that even if there was, in fact, no compliance, the evidence
gathered thereupon would still be admissible. This is the clear
position settled by the Supreme Court and, therefore, no further
question of law arises on this aspect of the matter.”
37. In Dharambir (supra) the challenge before the Delhi High Court
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was to constitutional validity of section 5(2) of the Act and the

intercepted messages were sought to be declared void on that basis.
The compliance of final directions in PULC's case (supra) directing
destruction of the intercepted messages on finding contravention of
section 5(2) of the Act was not in consideration. The fact of complete
lack of jurisdiction and mandatory rules itself providing for
consequences of destruction in such event was not the issue involved
and considered. Most importantly, while delivering the said judgment,
Delhi High Court did not have the benefit of authoritative
pronouncement of the the nine judges constitution bench judgment in
K.T. Puttaswamy (supra). No examination on the touchstone of
principles of proportionality and legitimacy, as laid down by the nine
judges constitution bench judgment in K.T. Puttaswamy (supra) was
involved. The facts before the Delhi High Court were materially
different. The case of Dharambir Khattar (supra) is, thus,
distinguishable on the above peculiar facts and ground.
38. Similarly, Navjot Sandhu (supra) was a case of prevention of
terrorist activities. It was serious case relating to the national security.
It was nobody's case that ingredients of section 5(2) of the Act could
not be satisfied or there was complete lack of jurisdiction under section
5(2) of the Act as in the instant case. Moreover, the said judgment is
only prior to decision in K.T. Puttaswamy (supra). It in paragraph 154,
it relies on R.M. Malkhani (supra) which as noticed in paragraph 51,
K.T. Puttaswamy (supra) followed the same line of reasoning as in
Kharak Singh (supra) while rejecting the privacy based challenge under
Article 21 of the Constitution of India, which now stands overruled.
39. Poorn Mal (supra) is a decision where the facts and issues were
not similar to the instant case. Here the action of the executive is in
breach of the fundamental rights under Article 21 of the Constitution of
India as also directions of the Supreme Court in PUCL's case (supra), in
that case there was no direction or provision which could mandate the
destruction of record in the absence of valid order. No case of any
infraction of Article 21 of the Constitution of India was raised. That
apart, Pooran Mal (supra) inter alia follows M.P. Sharma (supra) and
majority opinion in A.K. Gopalan v. State of Madras [1950 SCC 228 :
1950 SCR 88] which today stand overruled. The following paragraphs
from Pooran Mal (supra) where reliance is placed on A.K. Gopalan
(supra) and M.P. Sharma (supra) which are now overruled by the nine
judges constitution bench decision in K.T. Puttaswamy (supra):
“23. As to the argument based on “the spirit of our Constitution”,
we can do no better than quote from the judgment of Kania, C. J. in
A.K. Gopalan v. The State of Madras:
“There is considerable authority for the statement that the Courts
are not at liberty to declare an Act void because in their opinion it is
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opposed to a spirit supposed to pervade the Constitution but not

expressed in words. Where the fundamental law has not limited,
either in terms or by necessary implication, the general powers
conferred upon the Legislature we cannot declare a limitation under
the notion of having discovered something in the spirit of the
Constitution which is not even mentioned in the instrument. It is
difficult upon any general principles to limit the omnipotence of the
sovereign legislative power by judicial interposition, except so far as
the express words of a written Constitution give that authority.”
………..
In M.P. Sharma v. Satish Chander, already referred to, a search
and seizure made under the Criminal Procedure Code was challenged
as illegal on the ground of violation of the fundamental right under
Article 20(3), the argument being that the evidence was no better
than illegally compelled evidence. In support of that contention
reference was made to the Fourth and Fifth amendments of the
American Constitution and also to some American cases which
seemed to hold that the obtaining of incriminating evidence by
illegal seizure and search tantamounts to the violation of the Fifth
amendment. The Fourth amendment does not place any embargo
on. reasonable searches and seizures. It. provides that the right of
the people to be secure in their persons, papers and effects against
unreasonable searches and seizures shall not be violated. Thus the
privacy of a citizen's home was specifically safeguarded under the-
Constitution, although reasonable searches and seizures were not
taboo. Repelling the submission, this Court observed at page 1096.”
A power of search and seizure is in any system of jurisprudence in
overriding power of the State for the protection of social security and
that power is necessarily regulated by law. When the Constitution
makers have thought fit not to subject such regulation to
constitutional limitations by recognition of a fundamental right to
privacy,. analogous to the American Fourth Amendment, we have no
justification to import it, into a totally different fundamental right, by
some process of strained construction. Nor is it legitimate to assume
that the constitutional protection under article 20(3) would be
defeated by the statutory provisions for searches.
It, therefore, follows that neither by invoking the spirit of our
Constitution nor by a strained construction of any of the fundamental
rights can we spell out the exclusion of evidence obtained on an
illegal search.”
40. Even the judgment of Hon'ble Supreme Court in Umesh Kumar
v. State of UP, [(2013) 10 SCC 591], in paragraph 35 refers to and
relies upon R.M. Malkhani, Pooran Mal and Navjot Sandhu (supra),
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which are already discussed hereinabove. Moreover, the said cases are
distinguishable from the facts of the instant case. We are also bound by
the judicial discipline which requires that we should follow the latter
decision of greater strength bench in preference to the lesser strength
bench decision.
41. Further in Hussein Ghadially v. State of Gujarat, [(2014) 8 SCC
425] for non compliance with the mandatory requirement of approval,
in the light of Article 21 the Constitution of India, even the conviction
under the TADA Act was set aside.
“21.3 Thirdly, because if the statute provides for a thing to be
done in a particular manner, then it must be done in that manner
alone. All other modes or methods of doing that thing must be
deemed to have been prohibited.
……
29. The upshot of the above discussion, therefore, is that the
requirement of a mandatory statutory provision having been
violated, the trial and conviction of the petitioners for offences under
the TADA must be held to have been vitiated on that account.”
42. We may also add here that if the directions of the Apex Court in
PUCL'case (supra) which are now re-enforced and approved by the Apex
Court in K.T. Puttaswamy (supra) as also the mandatory rules in regard
to the illegally intercepted messages pursuant to an order having no
sanction of law, are permitted to be flouted, we may be breeding
contempt for law, that too in matters involving infraction of
fundamental right of privacy under Article 21 the Constitution of India.
To declare that dehorse the fundamental rights, in the administration of
criminal law, the ends would justify the means would amount to
declaring the Government authorities may violate any directions of the
Supreme Court or mandatory statutory rules in order to secure evidence
against the citizens. It would lead to manifest arbitrariness and would
promote the scant regard to the procedure and fundamental rights of
the citizens, and law laid down by the Apex Court.
43. We, therefore, quash and set aside three interception orders
th th th
dated 29 October, 2009, 18 December, 2009 and 24 February,
2010 and consequently direct the destruction of copies of intercepted
messages/recordings. The intercepted messages/recordings stand
eschewed from the consideration of trial Court. The Petitioner is at
liberty to adopt the remedy available in law for the other reliefs sought
in the writ petition.
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