Disclosing Elaborate Reasons For Passing 'Interception Orders' May Affect Intelligence: Delhi High Court

The Delhi High Court has observed that the disclosure of elaborate reasons for interception orders would be against the modified disclosure requirements of procedural fairness. 

"The disclosure of elaborate reasons for interception orders would be against the modified disclosure requirements of procedural fairness which have been universally deemed acceptable for the protection of other facets of public including the source of information leading to the detection of crime or other wrongdoing, sensitive intelligence information and other information supplied in confidence for the purpose of government or discharge of certain public functions," Justice Chandra Dhari Singh observed.

The Court thus dismissed a petition filed by one Santosh Kumar who had challenged an order passed by Ministry of Home Affairs dated 30th January 2018 which permitted interception of his telephonic calls in the exercise of the powers conferred under sec. 5(2) of the Indian Telegraph Act, 1885 and Rule 419 (A) of the Indian Telegraph Rules 2007.

In pursuance of the said order, an FIR was registered by Central Bureau of Investigation (CBI) under sec. 7, 8, 12 and 13(2) read with 13(1) of the Prevention of Corruption Act, 1988 and under sec. 120B of Indian Penal Code, 1860 on 7th February, 2018.

A raid was then conducted on the same day and 4 persons including the petitioner were taken into custody. Bail was granted to the petitioner by Special CBI Judge. Thereafter, Chargesheet was filed on 23rd December, 2019.

The case made by CBI was based on the interception of the telephonic conversation amongst the accused persons upon taking permission from the MHA.

Apart from assailing the MHA order, the Petitioner had also sought that the interception messages or calls obtained or recorded shall be destroyed and not to be used for any purposes.

Senior Advocate Vikas Pahwa 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. 

He also added that the substantive as well as procedural safeguards enumerated under sec. 5(2) of Telegraph Act and Rule 419A of Telegraph Rules had been violated which had resulted in violation of fundamental right to privacy of the petitioner.

It was submitted that the Impugned Order stated that the said judgments were being passed for reasons of "public safety", "in the interest of public order" and "for preventing incitement to the commission of an offence", however no specific reason was stated as to what was the danger or risk for the people at large.

It was also submitted that the since the call recordings were procured illegally, they were bound to be destroyed and not be used for any purpose, including for the purpose of the trial in the case.

On the other hand, SPP Anupam S. Sharma appearing for CBI submitted that the interception was as per procedure established by law and did not infringe the right to privacy of the petitioner. He added that from the facts of the case, it was apparent that the case pertained to corruption, which endangers public safety since economic crimes ultimately affect the economic stability and safety of the country and its citizens.

The Court noted that the affidavits dated 23rd September, 2020 and 9th October, 2020 filed by Senior Executives of the Union of India reflected that the order was forwarded to the Review Committee and no adverse direction was passed by them.

"Furthermore, the destruction of Minutes of the Review Committee was as per the procedure under Sub Rule (18) of Rule 491A and hard disk and other records were retained for functional purpose," the Court noted further.

The Court was of the view that for the purpose of interception of the calls, all procedures under the Telegraph Act as well as the Telegraph Rules were duly followed by the CBI.

"The law of the land weighs in the favour of the public interest over certain individual interest. In the instant matter as well, the conflict of interest seems to be between the interest of the public and the individual before this Court. However, the material on record as well as the precedents reflect the fact that the interception carried out by the respondent was in accordance with the provisions Section 5(2) of the Indian Telegraph Act, 1885 and Rule 419-A of the Indian Telegraph Rules, 2007," the Court observed.

Accordingly, the plea was dismissed as the Court was of the view that the impugned order was passed in light of the compelling reasons of public security protected under the clause of reasonable restrictions upon exercise of Fundamental Rights.

Case Title: SANTOSH KUMAR v. UNION OF INDIA & ANR

Citation: 2022 LiveLaw (Del) 569

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