Amar Singh tapes – Supreme Court lifts gag order

Amar Singh vs Union of India and others

Writ petition, filed under Article 32, the petitioner sought to protect his fundamental right to privacy under Article 21 of the Constitution of India. The petitioner’s case was that on the basis of his information from various sources, he had learnt that the Government of India and the Government of National Capital Region of Delhi, being pressurised by the Indian National Congress (respondent No.7), had been intercepting the petitioner’s conversation on phone, monitoring them and recording them.

The petitioner had been availing of the telephone services of M/s Reliance Infocom Ltd., impleaded herein as respondent no.8. He further referred to similar cases of interception of phone conversations of other people, including some of the country’s leading political figures, who were using services provided by M/s Reliance Infocom Ltd. and other service providers. Such interception of conversation, according to the petitioner, amounted to intrusion on the privacy of the affected people, and was motivated by political ill will and had been directed only towards those who were not aligned with the political party in power at the Centre. He submitted that this infringement of his fundamental rights was symptomatic of the erosion of the democratic values in the country. He prayed that the Court may declare the orders for interception unconstitutional and therefore void, and initiate a judicial inquiry into the issuance and execution of these orders, and prayed that damages be awarded to him. It was further prayed that all the telecom service providers including M/s. Reliance Infocom, along with all the others who had been impleaded, be directed to disclose all the relevant details with respect to the directions of interception issued to them by the authorities, and the Court may lay down guidelines on interception of phone conversations in addition to the ones laid down by this Court in the judgment in People’s Union for Civil Liberties (PUCL) v. Union of India and Another (1997) 1 SCC 301.

The petitioner’s case was that a request dated 22nd October, 2005 was issued from the office of the Joint Commissioner of Police (Crime), New Delhi to the Nodal Officer, Reliance Infocom Ltd., Delhi, for the interception of all the calls made from or to the telephone numbers of the petitioner. This request was subsequently followed by an order dated 9th November, 2005, from the Principal Secretary (Home), Government of National Capital Territory of Delhi, authorising the said request. The case of respondent no. 8 was that the said orders were acted upon by it, and the petitioner’s conversations were intercepted. However, the Union of India, and the National Capital Territory of Delhi denied the allegations. They submitted that said orders annexed to the petition, purporting to be issued by the Joint Commissioner of Police, (Crime), New Delhi, and the Principal Secretary (Home), Government of National Capital Territory of Delhi were fabricated with forged signatures and they were not genuine. Alleging forgery, a criminal case in that respect had already been initiated.

In the course of the hearing, by filing an interlocutory application the petitioner submitted that the recordings of the said conversations had been made available to some journalists/news agencies. In view of these submissions, the Court directed the electronic and the print media not to publish any part of the said conversations, vide Court’s order dated 27th February, 2006.

Various applications for intervention were preferred, especially by civil society groups. These applications were allowed. The interveners argued that the conversations by the petitioner were mostly made in his capacity as a public functionary and, therefore, were public in nature, and the citizens of the country have a right to know their contents under Article 19(1)(a) of the Constitution. A prayer was therefore made by them to vacate the order of injunction.

An affidavit had been filed by Shri Alok Kumar, Deputy Commissioner of Police, Headquarters. In that affidavit it had been stated, that on inquiry by the Additional Police Commissioner (Crimes), it was discovered that the purported order of Joint Commissioner of Police (Crime) and Principal Secretary (Home) on the basis of which interceptions were alleged by the petitioner were forged documents.

Consequent on the same report, an FIR No.152/2005 had been lodged under Sections 419, 420 468, 471 and 120B of I.P.C., read with Sections 20, 21 and 26 of the Indian Telegraph Act. In the said investigation the statement of the petitioner was also recorded under Section 161 of the Cr.P.C. In a subsequent affidavit filed by Mangesh Kashyap, Deputy Commissioner of Police, Headquarters, it had been stated by the deponent that the Final Report in connection with the said investigation was filed before the competent Court on 15th February, 2006 and the charges were framed on 6th February, 2010. Four accused persons in the said case were charged under Section 120B read with Sections 420 and 471 of I.P.C. and Section 25 of the Indian Telegraph Act. In addition, Bhupender Singh had been charged under Section 201, I.P.C. and Anurag Singh was charged under Section 419, I.P.C. The trial in the said case had commenced.

The Supreme Court observed that the affidavit filed by the petitioner in support of his petition, and relying on which the Court issued notice on 24th January, 2006, was not at all modelled either on order XIX Rule 3 of the Code of Civil Procedure, or Order XI of the Supreme Court Rules, 1966.

Discussing the importance of affidavits strictly conforming to the requirements of Order XIX Rule 3 of the Code, the Supreme Court relied on the following judgments: Padmabati Dasi v. Rasik Lal Dhar (1910) ILR 37 Calcutta 259,  Constitution Bench judgment in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317, Padmabati Dasi vs. Rasik Lal Dhar 37 Cal 259 ;Barium Chemicals Limited and another v. Company Law Board and others, AIR 1967 SC 295,  A. K. K. Nambiar v. Union of India and another, AIR 1970 SC 652, Virendra Kumar Saklecha v. Jagjiwan and others, (1972) 1 SCC 826,  M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab and others, (1982) 1 SCC 31, Smt. Savitramma v. Cicil Naronha and another, AIR 1988 SCC 1987.

Coming to the instant case, the Court held that the petitioner invoked the extraordinary writ jurisdiction of the Court under Article 32, without filing a proper affidavit as required in terms of Order XIX Rule 3 of the Code. Apart from the fact that the petitioner invoked Article 32, the nature of the challenge in his petition was very serious in the sense that he was alleging an attempt by the government of intercepting his phone and he was further alleging that in making this attempt the government was acting on extraneous considerations, and was virtually acting in furtherance of the design of the ruling party. It was, therefore, imperative that before making such an allegation the petitioner should be careful, circumspect and file a proper affidavit in support of his averment in the petition.

Then when in the course of hearing of this case, it was pointed out by this Court on 2nd February, 2011 that the affidavit filed by the petitioner is perfunctory, defective and not in accordance with the mandate of law, a prayer was made by the learned Senior Counsel of the petitioner to file a proper affidavit as required under the law. Similar prayer was made by the learned Solicitor General for the official respondents, and the case was adjourned. Thereupon a detailed affidavit was filed by the petitioner.

It appeared from the detailed affidavit filed by the petitioner, pursuant to the order of this Court dated 2nd February, 2011, that the main documents on which the writ petition is based, namely Annexures A and B, the orders dated 22nd October, and 9th November, 2005 were obtained by him from Mr. Anurag Singh, who is one of the accused and was arrested in the aforesaid criminal case. It also appeared that petitioner’s averments in paragraphs 2(v), 2(vii), 2(viii) and 2(ix) were based on information derived from the same Anurag Singh and that part of the information relating to the averments in para 5 of the writ petition was also obtained from the same Mr. Anurag Singh. The petitioner, therefore, largely relied on information received from an accused in a criminal case while he filed his petition under Article 32.

The Court also noted that at the time of filing the writ petition, the petitioner impleaded the Indian National Congress as respondent No.7 and also made direct allegations against it in paras 2(1), 2(10), 2(11) and 2(12). In para 2(12) and in para 5 of the writ petition, there were indirect references to the said respondent. In various grounds taken in support of the petition, allegations had been specifically made against the 7th respondent. Even though in the order of the Court dated 27th February, 2006, there was an observation that respondent No. 7 had been impleaded unnecessarily, the said respondent had not been deleted and in the amended cause title also, respondent No. 7 remained impleaded. The averments against the said respondent were not withdrawn by the petitioner. In the month of February of 2011, towards the closing of the hearing, an additional affidavit was filed by the petitioner. The said affidavit of the petitioner filed in February, 2011, completely knock the bottom out of the petitioner’s case, inasmuch as by the said affidavit the petitioner sought to withdraw all averments, allegations and contentions against the respondent no. 7. The main case of the petitioner was based on his allegations against respondent no.7. The subsequent affidavit also acknowledged that the petitioner was satisfied with the investigation by the Delhi Police in connection with the forgery alleged to have been committed, namely the fabrication of orders on the basis of which the phone lines of the petitioner were tapped. Petitioner also made a statement that the said Anurag Singh edited and tampered some of the conversations of the petitioner. It was also noted by the Court that when the writ petitioner filed the petition on 21st January, 2006, he was aware of an investigation that was going on by the Delhi Police in connection of the forgery of annexures A and B. Even then he filed the petition with those annexures and without a proper affidavit.

The Court thus observed that the petitioner had been shifting his stand to suit his convenience. In 2006, the gravamen of the petitioner’s grievances was against the respondent no. 7, and the basis of his petition was the information that he derived from the said Anurag Singh. On the basis of such a petition, he invoked the jurisdiction of this Court and an interim order was issued in his favour, which was still continuing. Now when the matter came up for hearing, he suddenly withdrew his allegations against the respondent no. 7 and felt satisfied with the investigation of the Police in connection with the aforesaid case of forgery and also stated that the same Anurag Singh edited and tampered certain conversations of the petitioner.

The Court also held that the total suppression in the writ petition of the fact that the petitioner gave a 161 statement in that investigation was a suppression of a very material fact. It thus termed the writ petition as frivolous and speculative in character. The Court was of the opinion that the so called legal questions on tapping of telephone could not be gone into on the basis of a petition which was so weak in its foundation. Courts had frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. The following judgments were discussed:  Dalglish v. Jarvie (2 Mac. & G. 231,238), Castelli v. Cook (1849 (7) Hare, 89,94), Republic of Peru v. Dreyfus Brothers &anr Company (55 L.T. 802,803), R. v. Kensington Income Tax Commissioner (1917 (1) K.B. 486), Hari Narain v. Badri Das – AIR 1963 SC 1558, Welcome Hotel and others v. State of A.P. and others – (1983) 4 SCC 575, G. Narayanaswamy Reddy (Dead) by LRs. and anr v. Government of Karnatka and anr – (1991) 3 SCC 261, S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and others (1994) 1 SCC 1, A.V. Papayya Sastry and others v. Government of A.P. and others (2007) 4 SCC 221, Prestige Lights Limited v. SBI (2007) 8 SCC 449, Sunil Poddar and others v. Union Bank of India (2008) 2 SCC 326, K.D.Sharma v. SAIL and others (2008) 12 SCC 481, G. Jayashree and others v. Bhagwandas S. Patel and others (2009) 3 SCC 141, Dalip Singh v. State of U.P. and others (2010) 2 SCC 114.

The Court thus concluded that the instant writ petition was an attempt by the petitioner to mislead the Court on the basis of frivolous allegations and by suppression of material facts.

The Supreme Court thus dismissed the writ petition and vacated the interim order. It held that no case of tapping of telephone had been made out against the statutory authorities in view of the criminal case which was going on and especially in view of the petitioner’s stand that he was satisfied with the investigation in that case.