W.P.(CRL) 1147/2020

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on : 24^th March 2022

Pronounced on: 13^th June, 2022

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W.P.(CRL) 1147/2020

SANTOSH KUMAR

..... Petitioner

Through:

Mr. Vikas Pahwa, Mr. Syed Arham

Masud, Mr. Vikhyat Oberoi, Mr.

Rohan Wadhwa, Mr. Sudeep,

Mr. Shadman Siddiqui, Mr. Sumair

Boparai, Mr. Raavi Sharma and

Ms. Nimisha Jain, Advocates

versus

UNION OF INDIA & ANR.

..... Respondents

Through:

Mr. Amit Mahajan, CGSC with

Mr.

Kritagya

Kumar

Kait,

Advocate for UOI/R-1

Mr. Anupam S. Sharma, SPP for

CBI with Mr. Prakarsh Airan, Ms.

Harpreet Kalsi and Mr. Anurag

Andley, Advocates

CORAM:

HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

J U D G M E N T

CHANDRA DHARI SINGH, J.

1. The instant Criminal Writ Petition has been preferred by the

petitioner under Article 226 read with Article 227 of the Constitution of

India, seeking a writ of Mandamus or any other appropriate writ or order

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or direction in the nature for quashing of the order no. 14/3/97-CBI dated

30^th January, 2018, issued by Ministry of Home Affairs (hereinafter

“MHA”) which permitted interception of telephonic calls of the

petitioner, in the exercise of the powers conferred under Section 5(2) of

the Indian Telegraph Act, 1885 and Rule 419 (A) of the Indian Telegraph

Rules 2007. The Petitioner further seeks that the interception

messages/calls obtained/recorded thereunder shall be destroyed and not to

be used for any purposes.

FACTUAL MATRIX

2. Brief facts of the case are as laid down under:

a.Permission for interception of telephonic calls of the petitioner

was granted by the MHA under Section 5(2) of the Indian

Telegraph Act, 1885 and as per the procedure laid down under

Rule 419A of the Telegraph Rules by order dated 30^th January,

2018. In pursuant to the Order, FIR No. RC 01 (A)/2018/AC-

111/CBI/New Delhi was registered under Sections 7/8/12/13(2)

read with 13(1) of the Prevention of Corruption Act, 1988

(hereinafter “PC Act”) and under Section 120B of Indian Penal

Code, 1860 (hereinafter “IPC”) at PS SPE/CBI/ACU-VIII/AC-

III on 7^th February, 2018. A raid was conducted on the same day

and 4 persons including the petitioner were taken into custody.

Bail was granted to the petitioner by learned Special Judge- CBI

(PC Act)- 06 Tis Hazari Court, India.

b.Thereafter, Chargesheet was filed before the learned Special

Judge on 23^rd December, 2019. The perusal of the Chargesheet

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and FIR demonstrates that the case made by respondent no. 1

(CBI) was based on the interception of the telephonic

conversation amongst the accused persons by the Special Unit

CBI, New Delhi upon taking permission from the MHA vide the

Impugned Order.

c.The learned Special Judge took cognizance of the offences

punishable under Sections 7/8/12/13(1) read with 13(2) of the

PC Act and substantive offences thereof. Hence, the instant

petition filed by the petitioner.

SUBMISSIONS

3. Mr. Vikas Pahwa, learned senior counsel appearing on behalf of

the petitioner submitted that reasons for “public emergency” or “public

safety” were neither recorded in the Impugned Order nor attracted in the

instant case. The substantive as well as procedural safeguards enumerated

under Section 5(2) of Telegraph Act and Rule 419A of Telegraph Rules

have been violated which has resulted in violation of fundamental right to

privacy of the petitioner.

4. Learned senior counsel for the petitioner referred to the judgment

of People’s Union of Civil Liberties (PUCL) vs. Union of India (UOI)

and Ors.,(1997) 1 SCC 301. The Hon‟ble Supreme Court stated that to

pass an Order for interception, in exercise of powers under Section 5(2)

and Rule 419-A, the occurrence of a public emergency or existence of

public interest are the sine qua non. The judgment defined “public

emergency” as a s