#telephonetapping

While passing orders for interception of phone circumstance has to be disclosed which persuaded the authority to record that public safety requires interception of the phone. Only bald statement of “public safety involved” would not suffice the compliance of law. Moreover, the authority has to record reasons in writing before permitting interception of call details. Only competent Authority can pass such order & the competent authority has to send the order before the review committee & the review committee has to review the order in a stipulated timeShashikant Joshi v. State of Rajasthan & 5 others

Criminal Writ Petition 565/2022 Before High Court of Rajasthan at Jaipur

Judgement pronounced on 04.07.2023 by Hon’ble Mr. Justice Birendra Kumar J

Background

The petitioner Shashikant Joshi has sought for quashing of the order dated 28.10.2020, dated 28.12.2020 and 17.3.2021 passed by the Secretary (Home), Government of Rajasthan permitting interception of Mobile Phones of the petitioner and others in purported exercise of power under Section 5(2) of the Indian Telegraph Act 1885.

By order dated 28.10.2020 Mobile No. 9829172463 of co accused Sunil Sharma was also ordered to be intercepted by the Anti-Corruption Bureau on suspicion that the said mobile was possibly being used for illegal activity relating to the incitement to the commission of an offence affecting public safety.

Interception was permitted for a period of 60 days. However, by another order dt.28.12.2020 this period was extended for another 60 days.

By two separate orders dated 17.3.2021, Mobile phones of the petitioner bearing No. 9587921137 and 9950830107 were ordered to be intercepted.

Submission of the Counsel for the petitioner

Right to privacy has been infringed by putting the mobile phones of the petitioner and others on surveillance/spying by the State machinery.

The orders are violative of Article 19 and 21 of the Constitution of India unless the same is consistent with the procedure established by law.

Referred judgement of the Hon’ble Supreme Court “People’s Union for Civil Liberties (PULC) Vs. Union of India & Anr,” where in provisions of Section 5(2) of the Indian Telegraph Act was considered and it was held that the conditions/situations of “public emergency” or “the interest of public safety” are not secretive conditions.

In the present matter none of the 03 orders depict what were the situations which persuaded the authority to record that public safety requires such an order.

Only bald statement of “public safety involved” would not suffice the compliance of law. Moreover, the authority has to record reasons in writing before permitting interception of call details.

The Respondent authorities have acted in utter violation of requirement of procedural safeguards under Rule 419A. The order was passed by the Secretary Home.

The only competent person to pass the impugned orders was in charge of the Home Department of the State who is known as Principal Secretary, Home.

Submission of the Counsel for the respondent

There is no need for verbatim compliance of the mandate of law.

If substantial compliance has already been done, it would be taken as compliance of the mandate of law.

The authorities have placed before the Secretary (Home) written request for permission stating therein that the user of the referred mobiles is suspected to be involved in corrupt practices under Prevention of Corruption Act.

Observation of the Court

On the basis of information gathered on interception of mobile calls, FIR No. 20 of 2021 was registered on 12.4.2021 under Section 7 and 8 of the Prevention of Corruption Act as well as under Section 201 and 120B of the IPC with the Anti-Corruption Bureau Police Station, Jaipur. After investigation, charge-sheet No. 140/2021 dated 4.5.2021 was also filed.

On bare perusal of the call details disclosed in the FIR, it is evident that there is no direct evidence against the petitioner being indulged in bribing any public servant rather in the purported trap proceeding, no graft money was recovered from possession of any of the accused persons including the petitioner.

A bare perusal of the impugned orders is indicative enough that no circumstance has been disclosed ventilating the objective satisfaction that the impugned orders were necessary for public safety.

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.

Illegal tapping of phone conversation violates right to privacy and it is already accepted by a 9 Judges Constitution Bench decision in case of K.S. Puttaswamy Vs. Union of India, with the following observations:

“ Telehpone 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.”

Evidently, the impugned orders discloses that the authority concerned has not disclosed the material on the basis of which it can be concluded that it was in the interest of public safety to pass such orders. The authorities have failed to record any reason in writing consisted with the requirement of sub-section (2) of Section 5 above.

Impugned orders were never sent to the Review Committee which ought to have been sent within statutory period and the Review Committee was also expected to take decision on the validity of the impugned orders within a specified period

The respondents had not controverted that the impugned orders were not sent to the Review Committee nor any material suggest that the impugned orders were sent to the Review Committee.

The impugned orders do not contain any reason whereas the statutory provisions require reason to be recorded in writing for coming to the conclusion that the interest of public safety has persuaded the authority to pass the impugned orders.

Sub-rule (3) of Rule 419A (supra) requires that the authority passing any order under Section 5 (2) of the Telegraph Act shall consider possibility of acquiring the information by other means and the direction under sub-rule (1) shall be issued only when it is not possible to acquire the information by any other reasonable means.

When the statute provides procedural safeguards to prevent arbitrary infringement of the rights to privacy, it must be strictly followed.

Required mandates could not have been ignored or superseded by the State or its machinery leading to offend the right under Article 19 and 21 of the Constitution of India.

It would be evident that the impugned orders suffer from manifest arbitrariness and if allowed to stand would amount to permit violation of the fundamental rights of the citizens and the law laid down by the Supreme Court.

Decision

All the three interception orders challenged herein and referred above stand hereby quashed.

Respondent authorities are directed to destroy the intercepted messages/recordings and its copies. Such messages shall not be considered in the pending criminal proceedings at any stage of the proceeding. The petitioner would be at liberty to adopt available legal remedy, for other reliefs sought for, in the writ petition.