The Bombay High Court on October 22, 2019, in the case of Vinit Kumar v. Central Bureau of Investigation Economic Offences Division, has held that as per Section 5(2) of the Indian Telegraph Act, 1885, an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety.
A Division Bench comprising of Justice Ranjit More and Justice N.J. Jamadar passing the ruling has granted relief to a 54-year-old Mumbai based businessman and quashed three separate orders passed by the Union Ministry of Home Affairs allowing Central Bureau of Investigation to intercept phone calls of the petitioner businessman in a case of bribery involving an official of a public sector bank.
In the case, CBI alleged that the petitioner gave a bribe of Rs.10 lakh to the said bank official for credit-related favour. In three separate orders dated October 29, 2009, December 18, 2009 and February 24, 2010, interception of telephone calls of the petitioner was allowed. CBI registered an FIR against the petitioner on April 11, 2011.
Petitioner contended before the court that the said action was ultra vires of Section 5(2) of the Indian Telegraph Act, 1885, in non-compliance of Rules made thereunder, and in violation of the fundamental rights guaranteed under Part-III of the Constitution of India.
Learned counsel appearing for the petitioner referred to the apex court's judgment in People's Union for Civil Liberties (PUCL) v. Union of India (1997) and the nine-judge constitution bench's decision in K.S. Puttaswamy v. Union of India (2017) to argue that 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.
Having heard the arguments, the court noted that "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 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."
Thus, quashing the interception orders and directing the CBI to destroy the copies of the call recordings, the court observed
"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."