TaxTMI 
TaxTMI 
2026 (3) TMI 1239
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....ment Agencies to resort to covert surveillance by tapping the mobile phones to obtain information regarding the commission of an alleged crime. 3. The circumstances giving rise to this challenge are as under: (i) The petitioner - one Mr. P. Kishore was the Managing Director of one M/s. Everonn Education Limited, Perungudi, Chennai. On 12.8.2011, the first respondent passed an order under Section 5(2) of the Act and Rule 419-A(1) of the Rules authorizing the interception of messages from the phone of the petitioner. The impugned order alleged that interception should be made and disclosed to the CBI for reasons of public safety and in the interest of public order and for preventing incitement to the commission of an offence. (ii) In the meantime, pursuant to the aforesaid order, on 29.8.2011, the third respondent registered a first information report (FIR) in R.C.MA1 2011 A 0033 of 2011 against one Mr. Andasu Ravinder, IRS, Additional Commissioner of Income Tax, Company Range, Chennai (A1), the petitioner (A2) and one Mr. Uttam Bohra (A3) for offences under Section 120-B of the Indian Penal Code (IPC) and Section 7 of the Prevention of Corruption Act, 1988. The ....
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....er Article 226 and not by way of a petition waar under Section 482 of the Cr. P.C. This petition under Article 226 has been filed pursuant to the liberty granted by this Court in the order dated 27.10.2017 in Cr. O.P 12404 of 2014. 4. The 1st respondent has filed its counter affidavit opposing the writ petition on the following grounds: (i) The impugned order has been passed in strict compliance with Section 5(2) of the Act and Rule 419-A of the Rules. Since the petitioner was having a conversation to commit an offence, it was intercepted in the interest of public safety preventing further incitement to the commission of an offence. (ii) Tapping of phones in the instant case has been done in consonance with the law laid down by the Hon'ble Supreme Court in the case of Hukam Chand Shyam Lal Vs. Union of India [reported in 1976 (2) SCC 128]. (iii) The decision of the Hon'ble Supreme Court in the case of R.M. Malkani Vs. State of Maharashtra [reported in 1973 (1) SCC 471] has categorically stated that the argument based on right to privacy is not available to a guilty citizen against the efforts of the police to vindicate the law. Hence, the praye....
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....n'ble Apex Court in the case of R.M. Malkani, it is not open to the petitioner to claim any right to privacy either under Article 21 or under Article 19 of The Constitution of India since the protections given therein are not for the guilty citizens. (v) According to the CBI, the order of the first respondent under Section 5(2) of the Act has been passed on account of a "public emergency". As regards the expression "public safety" occurring in Section 5(2), the CBI stated that this aspect cannot be confined to events or situations, which would be apparent to any reasonable person. Since the offence, in the instant case, is one of corruption, the same would impact public safety since it undermined the reputation of the Income Tax Department. (vi) There was no violation of the safeguards provided under Rule 419-A of the Rules since there was no direction from the first respondent to place the samples before any Review Committee. (vii) The power to take voice samples has been recognized by the Hon'ble Apex Court in the case of Ritesh Sinha Vs. State of U.P. [reported in AIR 2019 SC 3592] and the use of intercepted voice conversations was upheld by a ....
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....ns of the Hon'ble Supreme Court in Gobind Vs. State of M.P. [reported in 1975 (2) SCC 148] and in R. Rajagopal Vs State of Tamil Nadu [reported in 1994 (6) SCC 632], echoes of the existence of a right to privacy were heard. These echoes grew louder in the decision of the Hon'ble Apex Court in People's Union for Civil Liberties, which was concerned with the phone tapping. In the said decision it was conclusively held that the unauthorized phone tapping violated the right to privacy under Article 21 of The Constitution. (c) Once Article 21 was triggered, the impairment of a fundamental right would have to be sustained only on the anvil of a procedure established by law. The statutory backing to tap phones is traceable to Section 5(2) of the Act. Unless the jurisdictional conditions in that provision are satisfied, phone tapping would be illegal. (d) In view of the decision of the Hon'ble Apex Court in People's Union for Civil Liberties, Section 5(2) of the Act will not stand attracted unless and until there existed a public emergency or was done in the interest of public safety. The Supreme Court held that neither the occurrence of public emergen....
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....pondents and he submitted as follows: (a) The provisions of Section 5(2) of the Act ought to be expanded so as to accommodate newer contingencies such as the case on hand. Adverting to paragraph 16 of the counter affidavit of the CBI, it was submitted that since the matter involved corruption in high places, the issue involved a risk to public safety. Since the reputation of the Income Tax Department was at stake, there was a resultant threat to public safety. (b) Restricting the concept of public safety to situations that would be evident to a reasonable person would exclude situations like detection of crimes carried on by secretive means since most of the threat is from hidden actors. Such information is sensitive in nature and cannot be placed in the public domain. Therefore, the scope of Section 5(2) of the Act must be expanded beyond its literal words to accommodate newer situations such as the one on hand. (c) There was a complete application of mind while passing the impugned order, which is evident from the order itself. Referring to paragraph 10 of the counter affidavit of the CBI, it was submitted that such interception was necessary to prevent....
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.... repose." The sanctity of a man's home was regarded as so sacred that it was declared in Huckle Vs. Money [reported in 95 ER 768] as under: ... To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour .... " 13. In the landmark case of Entick Vs. Carrington [reported in (1765) 19 Howells' State Trials 1029 : (1765) 95 ER 807 : 2 Wils KB 275], Lord Camden observed: "The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole .... By the laws of England, every invasion of private property, be it even so minute, is a trespass. No man can set foot upon my ground without my licence but he is liable to an action though the damage be nothing." 14. These developments led William Pitt, the Elder, to famously declare in 1781 as follows : "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail-its roof may shake....
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....s of private persons ; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer." 17. The seeds of the right to privacy or the right to be let alone, which were sown in this seminal article germinated into a full blossom in the case of Olmstead Vs. United States [reported in 1928 SCC OnLine US SC 131 : 277 US 438 (1928)]. The issue before the U.S. Supreme Court was as to whether the use of evidence of private telephone conversations between the defendants and others, which were intercepted by means of wiretapping, amounted to a violation of the Fourth and the Fifth Amendments of the U.S. Constitution. The Fourth Amendment of the U.S. Constitution declared thus: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 18. The Fifth Amendment guaranteed to a citizen thus: "No person shall be held to answer for a capita....
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....e Fourth Amendment and set out his now infamous prophecy: "The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping. Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." 21. As experience has now shown, the dissent of Justice Brandeis was truly, to borrow the words of Chief Justice Hughes, "an appea....
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....oor behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people and not simply 'areas'-against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.... ......The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance These considerations do not vanish when the search in question is transferred from the setting ....
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....nd knocks at the door at night and after awakening the suspect makes sure of his presence at his home as being violative of Article 21 of The Constitution. However, the Majority still refused to recognize the right to privacy as an aspect of personal liberty under Article 21. N. Rajagopala Ayyangar, J observed thus: "Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III." Subba Rao, J took a slightly different path. The learned Judge viewed privacy as an integral part of personal liberty under Article 21. The learned Judge held thus: "It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, ....
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....ling interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible State interest, the characterization of a claimed right as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a State interest sufficient to justify the infringement of a fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of State." 28. In the decision of the Hon'ble Supreme Court in Gobind, though the relevant Regulations were ultimately saved by reading it down narrowly, it appears that the Hon'ble Supreme Court did, however, proceed on the basis that a right to privacy did exist, which is evident from the following observation: "The right to ....
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....ne tapping, an invasion into the right to privacy was through a procedure established by law ie., Section 5(2) of the Act. It also laid down certain procedural safeguards by way of directions under Article 142 of The Constitution, which will be referred to and dealt with in another part of this order. 31. At this juncture, it should be observed that the decision of the Hon'ble Supreme Court in M.P. Sharma was by a Bench of 8 Judges and the decision of the Hon'ble Supreme Court in Kharak Singh was by a Bench of 6 Judges. Although the decisions of the Hon'ble Supreme Court in Gobind, R. Rajagopal and People's Union for Civil Liberties had declared the right to privacy to be a part of Article 21, this view could not be definitively proclaimed since the shadow in the decision of M.P. Sharma still hung over these decisions. Matters eventually came to head when the matter was referred to a Nine Judges' Bench of the Hon'ble Supreme Court by a Constitution Bench in K.S. Puttaswamy (Privacy-9J) Vs. Union of India [reported in 2017 (10) SCC 1]. 32. It is not necessary to burden this order with the various scholarly opinions in the Nine Judges Bench judgment of t....
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.... 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." From a reading of the above, there can be no doubt that telephone tapping would infringe Article 21 unless such infringement has the sanction of a procedure established by law. Does the impugned order meet the requirements of Section 5(2) of the Act : 35. The "law", which is referred to in the context of phone tapping in the decision of the Hon'ble Supreme Court in People's Union for Civil Liberties, is the Act namely the Telegraph Act, 1885. It is, therefore, necessary to first set out the relevant provisions of this Act as they stood at different points in time. When the Act was originally enacted, Section 5 read as follows: "5. (1) On the occurrence of any public emergency, or in the interest of the public safety, the Governor General in Council or a Local Government, or any officer specially authorised in this behalf by, the Governor General in Council, m....
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....n licensed under this Act. (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 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- sec....
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.... 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 publi....
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....ondition of freedom from danger or risk for the people at large. Neither the occurrence of public emergency nor the interest of public safety is a secretive condition or situation. Either of the situations would be apparent to a reasonable person. ● It is only when the above two situations exist that the Authority may then pass an order directing interception of messages after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) the 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. ● In other words, unless and until there is a public emergency or it is necessary in the interests of public safety, 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. 41. Keeping these principles in mind, it is seen that in the instant case, a perusal of the impugned order would show that it has b....
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....sume is "in the interests of public safety" as provided under Section 5(2) of the Act. But, the invocation of this ground in this case is clearly unsustainable since the Hon'ble Supreme Court in the case of People's Union for Civil Liberties clearly held as follows: "The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. 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." 44. Admittedly, the entire operation in this case involves covert surveillance of the mobile phone of the petitioner and consequent interception of conversations between the accused persons. This was clearly a covert operation. The term 'interests of public safety' as explained in the decision of the Hon'ble Supreme Court in People's Union for Civil Liberties contemplates a situation, which is not secretive and is apparent to a reasonable person. By no stretch of imagination, can the facts of this case be characterised to meet the aforesaid requirements so as to bring it within the rub....
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....fety and preventing further incitement by the Petitioner to the commission of an Offence. " The first respondent has thereafter made a reference to the decision of the Hon'ble Supreme Court in Hukam Chand Shyam Lal and stated as follows: "6 ........ That it is respectfully submitted that the Respondent herein has used the mechanism of telephone tapping only on the occurrence of the aforesaid circumstances mentioned in Hukum Chand Shyam Lal's case namely on the occurrence of any "public emergency" or in the "interest of public safety" 47. He would further submit that the terms 'public emergency' and 'public safety' have been interpreted by the Hon'ble Supreme Court to mean problems concerning the interests of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States or public Order or for preventing the incitement to the commission of an offence and hence, the allegation questioning the validity of the order passed by the first respondent is irrational. 48. The counter affidavit, instead of lending clarity, unfortunately exposes the flawed understanding of the first respo....
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....inct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order" 51. Thus, the effect of breach of public order would involve a wide spectrum of the public and does not involve a covert operation hatched and carried out in secrecy such as the case on hand. In fact, the use of Section 5(2) of the Act to detect the commission of ordinary crimes de-hors the requirement of public emergency or in the interests of public safety appears to be clearly misconceived. Where phone tapping has been found necessary to tackle crimes, such a power has been expressly conferred as for example in certain special statutes like the Maharashtra Control of Organized Crime Act, 1999. Section 14 of the said Act authorizes interception of wire, electronic or oral communication for the purposes of investigating into organized crime. The words of Section 5(2) of the Act cannot be strained to include detection of ordinary crime. 52. Realizing this legal position, the CBI, in it....
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.... that the correct factual position is presented to the media. The provisions for authorization of interception are contained in Section 5(2) of Indian Telegraph Act, 1885 read with Rule 419(A) of the Indian Telegraph Rules, 1951 as well as Section 69 of the Information Technology Act, 2000 read with Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009. The Hon'ble Supreme Court has upheld the constitutional validity of interceptions and monitoring under Section 5(2) of the Act through its order dated 18.12.1996 in Writ Petition (C) No.256/1991 by People's Union for Civil Liberties (PUCL) Vs. Union of India. It has also observed that 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", and accordingly, held that telephone tapping would infringe the Right to Life and Right to Freedom of Speech & Expression enshrined in Articles 21 and 19(1)(a) respectively of the Constitution of India, unless it is permitted under the procedure established by law. The Hon'ble Court further observed that Section 5(2) ....
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....finement of Rules and Procedures, in addition to providing for stronger penal provisions for violations by amending the law. It was also recommended to either remove the CBDT from the list of authorized agencies in respect of telephone interception as the income tax laws fall within civil jurisdiction and do not always impinge on the public safety or to specify stipulations regarding the extent of surveillance allowed to the agency, including the level at which requests are to be made for authorization by the Home Secretary. It is clarified that the law does not permit use of telephone tapping and monitoring of conversations to merely detect tax evasion. There are specific laws and rules that contain provisions for detection of unaccounted wealth and evasion of taxes, and interception of telephones without 'public emergency' or 'public safety' being at stake is not in accordance with the law, as exhaustively interpreted by the Hon'ble Supreme Court. The recommendations made by the Cabinet Secretary reiterate this established legal position, which should not be seen in terms of conflicts between individuals or interest groups." 57. The aforesaid Press Note is ....
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....daries for invasion of a fundamental right through the medium of enacted law is a function of the Legislature and not the Court. Section 5(2) of the Act has set out the Lakshman Rekha and the role of the Court is confined to seeing as to whether the threshold is not crossed. As sentinels on the qui vive, the Courts are gatekeepers of Fundamental Rights. Gate keepers cannot become gate makers to reposition the gates as and when the Executive requires without the intervention of the Legislature as pointed out by H.R. Khanna, J in the case of Godavari Sugar Mills Ltd. Vs. S.B. Kamble [reported in 1975 (1) SCC 696], which reads thus : "Any provision which has the effect of making an inroad into the guarantee of fundamental rights in the very nature of things should be construed very strictly and it would not, in our opinion, be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beyond what is warranted by the language of the provision." 64. That apart, the above contention cannot be accepted since this Court is bound by the interpretation put upon Section 5(2) of the Act in paragraph 28 of the decision of the Hon'ble Apex....
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....128] further clarifies that the scope of "public emergency" relates to the situations contemplated under the sub-section pertaining to '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'. 101. The word "emergency" has various connotations. Everyday emergency, needs to be distinguished from the type of emergency wherein events which involve, or might involve, serious and sometimes widespread risk of injury or harm to members of the public or the destruction of, or serious damage to, property. Article 4 of the International Covenant on Civil and Political Rights, notes that '[I]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed ... '. Comparable language has also been used in Article 15 of the European Convention on Human Rights which says "In time of war or other public emergency threatening the life of the nation". We may only point out that the "public emergency" is required to be of serious nature, and needs to be determined on a case-to-case basis. 102.....
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.... to be placed before a Review Committee to examine as to whether the interception was carried out in accordance with Section 5(2) of the Act. The attention of this Court was drawn to Rule 419-A(17) to (19), which reads as follows: "(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. (19) The service providers shall destroy records pertaining to directions for interception of message within two months of discontinuance of the interception of such messages and ....
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....nd Shyam Lal v. Union of India, (1976) 2 SCC 128], observed as follows : (SCC p. 133, para 18) '18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other amodes (sic) of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature .... ' (emphasis supplied) This applies with even more force considering the large public impact on the right to freedom of speech and expression that such a broad-based restriction would have." 74. In view of the above, it is clear that the exercise of power under Section 5(2) of the Act was coupled with a duty to forward the same under Rule 419-A(17) of the Rules to examine as to whether the jurisdictional requirements under Section 5(2) had been satisfied. Admittedly, in the instant case, the intercepted material has not been placed before the Review Committee at all. Thus, there has been a complete go by of the compliance of the mandatory provisions of law. 75. The attention of this Court was drawn to a decision of a learned Single Judge....
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.... 2019 SCC Online Bombay 3155] wherein it was held as under : "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 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 earlier order. The 1st order dated 29th 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, third order dated 24th 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....
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....ote the scant regard to the procedure and fundamental rights of the citizens and the law laid down by the Apex Court. 83. It was brought to the notice of the Court that this judgment is now pending consideration before the Hon'ble Supreme Court. However, the same view has been taken by the Rajasthan High Court in the case of Shashikant Joshi Vs. State of Rajasthan [reported in 2023 SCC OnLine Rajasthan 1108 : (2023) 3 RLW 2333] and recently in the case of Rakesh Kumar Meena Vs. State of Rajasthan [reported in 2025 SCC Online Rajasthan 448]. 84. The CBI had pointed out that a learned Single Judge of this Court had, in the case of Sanjay Bhandari, taken a different view. 85. But, a close look at the said decision would show that in paragraph 11, the learned Single Judge of this Court has reproduced the contentions in the counter affidavit of the CBI, which have been once again repeated before this Court in the instant case. It is also seen that the attention of the learned Single Judge was not drawn to the fact that paragraph 28 of the decision of the Hon'ble Supreme Court in People's Union for Civil Liberties has been affirmed by the Bench of the Apex Court i....
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....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 Courts will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or even irregular method in obtaining the tape-recording of the conversation." 90. This decision may not aid the case of the respondents for more than one reason. In the first place, the decision of the Hon'ble Supreme Court in R.M. Malkani was a case of an appeal against conviction where the presumption of innocence did not apply. It is in this context that the Hon'ble Supreme Court had observed that the protection against phone tapping is not available to a guilty citizen. Here, the petitioner is only accused of an offence. The presumption of innocence still applies in his favour. 91. Secondly, as pointed out above, the decision was rendered during the time when the judgment of the Hon'ble Apex Court in M.P. Sharma was holding the field. It has been pointed out by D.Y. Ch....
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...., 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and the cases that have followed it. I have said that we are free to choose between two principles of policy. But if we are to confine ourselves to precedent and logic the reason for excluding evidence obtained by violating the Constitution seems to me logically to lead to excluding evidence obtained by a crime of the officers of the law." 94. Leaving aside the broader question of the general admissibility of evidence obtained by unconstitutional means, this case can be decided on a narrower basis i.e., on the basis of Rule 419-A of the Rules. As has been pointed out earlier, one of the guidelines issued by the Hon'ble Supreme Court in People's Union for Civil Liberties, dealt with this issue and it reads as follows: "35. (9) ..... (a) .... (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." 95. Rule 419-A(17) of the Rules also authori....