BADAR DURREZ AHMED, J

1. This writ petition seeks to raise questions with regard to seven interception orders purportedly passed under Section 5(2) of the Indian Telegraph Act, 1885 (hereinafter referred to as ‘the Telegraph Act’) read with Rule 419-A of the Indian Telegraph Rules, 1951 (hereinafter referred to as ‘the Telegraph Rules’). In the backdrop of these seven interception orders, the petitioner has prayed that:-

a) The case Bearing C.C. No.12/2004 (RC No. AC 0001/2003) pending before the Special Judge, CBI, Patiala House Courts, New Delhi should be withdrawn by this court by invoking Article 228 of the Constitution of India inasmuch as, according to the petitioner, inter alia, a substantial question of law is involved therein;

b) Section 5(2) of the said Telegraph Act be declared as unconstitutional and, consequently, the interception orders be declared as void;

c) The seven interception orders be declared as being in violation of the fundamental and statutory rights of the petitioner and to prohibit the trial court from using the materials collected pursuant to the seven orders which pertain to 15 telephone / mobile numbers;

d) The order dated 02.11.2007 passed by the learned Special Judge, CBI, Patiala House Courts, New Delhi dismissing the petitioner’s application under Section 395 of the Criminal Procedure Code, 1973 seeking a reference to the High Court, be quashed.

2. Before we proceed further, one of the seven orders of interception is set out hereinbelow by way of sample:-

“TOP SECRET

No.14/3/97-CBI

MINISTRY OF HOME AFFAIRS

(Government of India)

ORDER

WHEREAS as per provision in Sub-rule (1) of Rule 419-A of the Indian Telegraph Rules, 1951 notified on 16.02.1999 as Indian Telegraph (First Amendment) Rules, 1999 framed in exercise of the powers conferred by Section 7 of the Indian Telegraph Act, 1885 (13 of 1885), the Secretary, Ministry of Home Affairs, Government of India, has been authorized to exercise the powers of Central Government under sub-Section (2) of Section 5 of the Indian Telegraph Act, 1885 (13 of 1885).

2. Now, therefore, I Union Home Secretary, being satisfied that it is necessary / expedient so to do in the Interest of sovereignty and integrity of India / Security of the State / Friendly relations with foreign states / public order / preventing incitement to the commission of an offence hereby direct that any telephone message relating to clandestine contact / movement / activity etc. to and from 98-102-58734, brought for transmission by or transmitted shall be intercepted and disclosed to the Director, CBI.

3. I am further satisfied that it is necessary to monitor this telephone as the information cannot be acquired through any other reasonable means.

4. This order shall remain in force for a period not exceeding 90 days from the date of issue.

Sd/-

(N. Gopalswami)

Secretary to the Govt. of India

Ministry of Home Affairs,

New Delhi.

New Delhi

Dated 20.12.2002”

3. The facts are few. It is apparent that there is a trial going on in CC No.12/2004 (RC No. AC 0001/2003) before the Special Judge, CBI, Patiala House Courts, New Delhi. In that case, the petitioner is an accused. The prosecution is seeking to use as evidence the material collected pursuant to the seven interception orders mentioned above. According to the petitioner, the interception orders were passed purportedly under Section 5(2) of the said Telegraph Act, which provision itself is unconstitutional and, as a consequence thereof, the interception orders are void. It is further the case of the petitioner that the seven interception orders are, in any event, in violation of Section 5(2) of the said Telegraph Act and, therefore, the same should be declared as null and void.

The petitioner also prays that this court should exercise the powers under Article 227 of the Constitution of India to set aside and / or quash the order dated 02.11.2007 passed by the learned Special Judge, CBI, whereby the petitioner’s application under Sec