Tuesday 22 January 2013

Even if evidence is illegally obtained, it is admissible

In R.M. Malkani (supra), the Supreme Court, inter alia,
observed that "there is warrant for the proposition that even if evidence is
illegally obtained, it is admissible". The Supreme Court observed as
under:-
"24. It was said by counsel for the appellant that the tape recorded conversation was obtained by illegal means. The illegality was said to be contravention of Section 25 of the Indian Telegraph Act. There is no violation of Section 25 of the Telagraph Act in the facts and circumstances of the present case. There is warrant for proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen [ (1870) 34 JP 759] . The Judicial Committee in Kuruma, Son of Kanju v. R. [ 1955 AC 197] dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence. Supreme Court categorically held that the question of admissibility of a tape recorded conversation illegally collected or obtained was no longer in issue in view of the decision in R.M. Malkani (supra), where the Supreme Court held that a contemporaneous tape record of a relevant conversation was a relevant fact and was admissible. The Supreme Court clearly held that the non-compliance or inadequate compliance with the provisions of the said Telegraph Act did not per se affect the admissibility.

Delhi High Court

Dharambir Khattar vs Union Of India & Another on 21 November, 2012



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:-
WP(Crl) No.1582/07 Page 1 of 52 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.
WP(Crl) No.1582/07 Page 2 of 52
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.
WP(Crl) No.1582/07 Page 3 of 52
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 Section 395 of the Code
WP(Crl) No.1582/07 Page 4 of 52 of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') was
dismissed. According to the petitioner, the case involved the question as
to the validity of Section 5(2) of the said Telegraph Act and, therefore,
the application for reference to the High Court under Section 395, CrPC
ought to have been allowed. It is furthermore the case of the petitioner
that the case pending before the said Special Judge involves a substantial
question of law as to the interpretation of the Constitution and the
determination of which is necessary for the disposal of the case and,
therefore, this court ought to exercise the powers conferred upon it under
Article 228 of the Constitution of India by withdrawing that case from the
Special Judge and thereafter either dispose the case itself or determine the
question of law and return the case to the Special Judge for disposal in
conformity with the decision of this court.
4. Prior to considering the submissions of the learned counsel for
the petitioner with regard to Section 5(2) of the said Telegraph Act, it
would be appropriate to set out the provisions thereof. Section 5 of the
said Telegraph Act reads as under:-
"5. Power for Government to take possession of licensed telegraphs and to order interception of messages. -- (1) On the occurrence of any public emergency, or in the interest of the public safety, the
WP(Crl) No.1582/07 Page 5 of 52 Central Government or a State Government, or any other officer specially authorised in this behalf by the Central Government or a State Government, may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act.
(2) On such occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought by transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:
Provided that press messages intended to be
published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section."
5. After reading through the above provision, Mr R.
Venkatramani, the learned senior counsel, appearing on behalf of the
petitioner, submitted that the powers under Section 5(1) could be invoked
WP(Crl) No.1582/07 Page 6 of 52 only on the occurrence of any 'public emergency' or in the interest of
'public safety'. According to the learned counsel for the petitioner, there
was no 'public emergency' nor was there any issue of 'public safety' in
the present case. He further contended that Section 5(2) also relates to
'such occurrence of any public emergency' and also to a situation
involving 'public safety'. Therefore, interception of messages
transmitted or received by any telegraph could be ordered under Section
5(2) only if there existed a situation of 'public emergency' or it was in the
interest of 'public safety'. Thus, according to the learned counsel for the
petitioner, if these two conditions did not exist, there could not be any
order for interception with regard to telephone. It was further contended
that the power under Section 5(2) was very drastic and was absolutely
arbitrary. Consequently, it could be used by the Government in an
arbitrary fashion. As such, Section 5(2) was violative of the fundamental
rights guaranteed under Articles 14, 19(1)(a) and 21 of the Constitution of
India. A reference was made to the decision of the Supreme Court in the
case of Hukam Chand Shyam Lal v. Union of India: (1976) 2 SCC 128
as also to the Supreme Court decision in People's Union of Civil
Liberties (PUCL) v. Union of India: 1971 (1) SCC 301.
WP(Crl) No.1582/07 Page 7 of 52
6. The learned counsel for the petitioner submitted that it has
been recognized in PUCL (supra) that telephone tapping amounted to an
infraction of the fundamental right guaranteed under Article 21 of the
Constitution. The very same decision of the Supreme Court also
recognized the fact that telephone tapping amounted to an infraction of
Article 19(1)(a) of the Constitution unless it was saved by Article 19(2).
The learned counsel also submitted that the expression 'public
emergency' and 'public safety' were explained in Hukam Chand (supra)
and reiterated in PUCL (supra).
7. The learned counsel for the petitioner made a two-fold
submission in the backdrop of the aforesaid decisions of the Supreme
Court. His first submission was that Section 5(2) was clearly
unconstitutional inasmuch as it was amenable to arbitrary exercise of
power. Secondly, he submitted that, in any event, the interception /
phone tapping orders could only be issued in a situation which entailed
'public emergency' or 'public safety'. According to him, a state of
emergency did not exist in the present case prior to the issuance of the
seven interception orders and the said orders were not in the interest of
'public safety' as explained in Hukam Chand (supra). Therefore, a
declaration was sought by the petitioner that the seven interception orders
WP(Crl) No.1582/07 Page 8 of 52 were in violation of the petitioner's fundamental and statutory rights. On
this foundation, it was urged on behalf of the petitioner that the trial court
be prohibited from using the materials collected pursuant to the said
seven orders in the course of the trial pending before it.
8. It was also contended that this court should exercise its powers
under Article 227 of the Constitution to set aside the order dated
02.11.2007 by which the learned Special Judge had dismissed the
petitioner's application under Section 395, CrPC for a reference to the
High Court. It was contended that the learned Special Judge had failed to
realize that the case pending before the said Special Judge involved a
question as to the validity of Section 5(2) of the said Telegraph Act and
that the determination of this question was necessary for the disposal of
the case. Consequently, the learned Special Judge, in view of Section
395 (1), was duty bound to state a case and refer the same for the decision
of the High Court. It was further contended that, in any event, the learned
Special Judge could have acted under Section 395 (2) by exercising her
discretion inasmuch as, even if the provisions of sub-Section (1) did not
apply, the case at least involved a question of law. Since the learned
Special Judge did not make any reference under Section 395, CrPC, this
court, according to the learned counsel for the petitioner, ought to
WP(Crl) No.1582/07 Page 9 of 52 exercise its jurisdiction of superintendence under Article 227 of the
Constitution to set aside and quash the said order.
9. In response to these arguments, Mr Dayan Krishnan,
appearing on behalf of the CBI, submitted that, first of all, Article 228 of
the Constitution would have no application in the present case and,
therefore, the prayer for withdrawing of the case pending before the
learned Special Judge to this court ought to be rejected outright. In this
context, he submitted that Article 228 of the Constitution could only be
invoked where the High Court was satisfied that a case pending before a
court subordinate to it involved a "substantial question of law" as to the
interpretation of the Constitution and the determination of which was
necessary for the disposal of the case pending before the subordinate
court. He submitted that a question already decided by the Supreme
Court can never be regarded as a substantial question of law. According
to Mr Krishnan, the validity of Section 5(2) of the said Telegraph Act was
to be considered as beyond reproach in view of the decision of the
Supreme Court in Hukam Chand (supra) and PUCL (supra). In both
these decisions, Section 5(2) of the said Telegraph Act had been
considered and the Supreme Court had not regarded it as invalid. It was
contended that in PUCL (supra), Section 5(2) was directly under
WP(Crl) No.1582/07 Page 10 of 52 challenge, but in the course of the said decision, the Supreme Court noted
that the vires of Section 5(2) of the said Telegraph Act were not seriously
challenged and that the Supreme Court went on to prescribe the interim
safeguards till the rules were framed under Section 7 of the said
Telegraph Act providing for safeguards. It was contended by Mr
Krishnan that these decisions and, in particular, the decision of the
Supreme Court in PUCL (supra) clearly indicates that the Supreme Court
had given its imprimatur insofar as the Constitutional validity of Section
5(2) of the said Telegraph Act was concerned. Therefore, according to
him, the same was not open to challenge and, consequently, no question
of law with regard to the validity of that provision could at all arise as the
same had been settled by the Supreme Court.
10. In this very context, it was also submitted that even if this
court were to hold that the seven interception orders were in violation of
law, the evidence that was collected pursuant to the said seven orders,
would still be admissible as they were relevant. According to Mr
Krishnan, even illegally obtained evidence is admissible. This, according
to him, was a common law principle which is well recognized in India
and this issue also has been decided by several decisions of the Supreme
WP(Crl) No.1582/07 Page 11 of 52 Court and other courts. Some of the decisions referred to by him were as
under:-
1) Barindra Kumar Ghose v. Emperor: 1910 ILR 37 Cal 467;
2) R.M. Malkani v. State of Maharashtra: 1973 (1) SCC 471;
600.
11. We may also point out, at this juncture, that the learned
counsel for the petitioner had referred to State of Punjab v. Baldev
Singh: 1999 (6) SCC 172, wherein the decision of the Supreme Court in
Pooran Mal (supra) was distinguished. However, Mr Krishnan
submitted that the decision of the Supreme Court in Baldev Singh (supra)
was purely in the context of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), which
was a special case and, therefore, cannot be regarded as having taken
away anything from the Supreme Court decision in Pooran Mal (supra).
It was, therefore, contended by Mr Krishnan that Article 228 of the
Constitution could not be invoked at all in the present case as there was
no substantial question of law which involved the interpretation of the
Constitution. Even if the seven interception orders were, for the sake of
WP(Crl) No.1582/07 Page 12 of 52 argument, to be regarded as illegal, the material collected pursuant thereto
would yet be admissible in view of the clear position of law as prevailing
in India.
12. The second point urged by Mr Dayan Krishnan was that the
matter was proceeding in trial before the learned Special Judge and that
this court is not at all required to go into the question of validity of the
seven interception orders or into the question of exercise of the powers
under Section 5(2) of the said Telegraph Act. That, according to the
learned counsel, is a matter to be gone into by the trial court. He placed
reliance on the Supreme Court decision in the case of State of Bihar v.
P.P. Sharma: 1992 Supp 1 SCC 222 and, in particular, on para 31
thereof (per Kuldip Singh, J) which is to the following effect:-
"31. Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Article 226/227 of the Constitution of India at a stage when the Special Judge was seized of the matter. He had heard the arguments on the question of cognisance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders."
13. Thirdly, Mr Krishnan submitted that the High Court generally
does not entertain petitions under Article 226 of the Constitution when a
full-fledged trial is in progress, particularly, as the trial court is seized of
WP(Crl) No.1582/07 Page 13 of 52 the disputed questions of fact, which, this court in exercise of its writ
jurisdiction would not go into.
14. Fourthly, with regard to the order dated 02.11.2007 passed by
the Special Judge, whereby the petitioner's application under Section
395, CrPC was rejected, Mr Krishnan submitted that Article 227 of the
Constitution is not by way of an appellate jurisdiction. As such, it should
not be used as an appeal in disguise. He placed reliance on paragraph 28
of the Supreme Court decision in the case of State, through Special Cell,
New Delhi v. Navjot Sandhu @ Afshan Guru & Others: 2003 (6) SCC
641. The said paragraph 28 reads as under:-
"28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunal's within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is a difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised
WP(Crl) No.1582/07 Page 14 of 52 sparingly and only to keep subordinate Courts and Tribunal's within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise"."
15. For all these reasons, Mr Krishnan submitted that the writ
petition ought to be dismissed.
16. Mr Dubey, appearing for the Union of India, submitted that
the main challenge of the petitioner is to Section 5(2) of the said
Telegraph Act. He submitted that the legislative competence has not
been doubted or challenged. The challenge is in the context of Articles
14, 19 and 21 of the Constitution. He referred to the Supreme Court
2008 (13) SCC 5, wherein the decisions of the Supreme Court in the case
of R.M. Malkani (supra) and PUCL (supra) were considered. Mr Dubey
submitted that the Supreme Court in Bharat Shanti Lal Shah (supra)
clearly held that interception of conversation, although it constitutes an
invasion of an individual right to privacy, can be curtailed in accordance
with the procedure validly established by law. Consequently, what the
WP(Crl) No.1582/07 Page 15 of 52 court has to see is whether the procedure itself is fair, just and reasonable
and not arbitrary, fanciful or oppressive. According to Mr Dubey, when
the PUCL (supra) case was heard by the Supreme Court, there was no
procedure prescribed under Section 7 of the said Telegraph Act. Yet, the
Supreme Court directed a series of steps to be taken before passing an
order of interception under Section 5(2), till such time as the rules under
Section 7 of the said Telegraph Act were framed. Mr Dubey submitted
that thereafter, Rule 419-A has been introduced in the said Telegraph
Rules which are virtually the same as the directions given by the Supreme
Court. Therefore, it would be well nigh impossible to say that the
safeguards prescribed in Rule 419-A are not fair, just and reasonable
inasmuch as they are virtually the same as the ones which find place in
the PUCL (supra) decision. That being the position, the validity of
Section 5(2) of the said Telegraph Act cannot be questioned. Mr Dubey
submitted that the PUCL (supra) case has already decided all the issues
and now that Rule 419-A has been introduced with effect from
16.02.1999, the safeguards are also in place and there is no scope for
challenging the validity of the said Section 5(2) of the said Telegraph
Act.
WP(Crl) No.1582/07 Page 16 of 52
17. In rejoinder, the learned counsel for the petitioner submitted
that the understanding of the Government is contrary to the spirit of
Section 5(2) and the Supreme Court decision in PUCL (supra), therefore,
according to him, the validity of Section 5(2) is alive and is not a dead
letter inasmuch as, according to him, it continues to give room for abuse
of power. He sought to distinguish Navjot Sandhu's case as also the
other decisions which were cited against him. The learned counsel
reiterated that the prayers sought in this petition be allowed.
18. Let us, first of all, examine the prayer with regard to quashing
/ setting aside of the order dated 02.11.2007 passed by the learned Special
Judge, whereby the application under Section 395, CrPC for reference to
the High Court was rejected. Section 395, CrPC reads as under:-
"395. Reference to High Court. -- (1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.Explanation.-- In this section, "Regulation" means any Regulation as
WP(Crl) No.1582/07 Page 17 of 52 defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.
(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.
(3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon."
19. A plain reading of Section 395(1) indicates that the court is
required to make a reference only if it is satisfied that a case pending
before it involves a question as to the validity of any Act etc, the
determination of which is necessary for the disposal of the case. It is
further necessary that the court must also be of the opinion that such Act
is invalid or inoperative, but has not been so declared by the concerned
High Court or by the Supreme Court. It is, therefore, clear that, first of
all, the court must itself be satisfied that a case involves the question as to
the validity of an act and that the declaration of which is necessary for the
disposal of the case. There is the further requirement that the court itself
must be of the opinion that the Act is invalid, but has not so been declared
by the High Court or the Supreme Court. In the present case, the learned
WP(Crl) No.1582/07 Page 18 of 52 Special Judge was not of the opinion that Section 5(2) of the said
Telegraph Act was invalid. She was also not satisfied that the case
pending before her involved the question of validity of Section 5(2) of the
said Act. In other words, the learned Special Judge did not feel that the
ingredients of Section 395, CrPC had been satisfied. She also did not feel
that any question of law arose which required her to make a reference
under Section 395, CrPC. After a detailed examination of several cases,
including the PUCL (supra) and the R.M. Malkani (supra) cases and
other cases, the learned Special Judge rejected the application under
Section 395, CrPC.
20. The petitioner has called upon us to exercise jurisdiction under
Article 227 of the Constitution to set aside and quash the order dated
02.11.2007. First of all, we are in agreement with Mr Krishnan in view
of the observations made by the Supreme Court in State v. Navjot
Sandhu: 2003 (6) SCC 461, which we have already referred to above,
that this is not a case for exercise of power under Article 227 of the
Constitution and the same cannot be used as a disguise for an appeal
which is not provided by the statute. Secondly, assuming that we agree
with the request of the petitioner and quash the impugned order dated
02.11.2007, where does it take the petitioner. The fact remains that by
WP(Crl) No.1582/07 Page 19 of 52 quashing the order dated 02.11.2007, a reference to this court does not
automatically ensue. All that it means is the order rejecting the reference
is set aside.
21. At this juncture, it would be pertinent to refer to the provisions
of Section 256 of the Income-tax Act, 1961 which provided for a
reference to the High Court. That was the avenue of proceeding from the
Income-tax Appellate Tribunal to the High Court prior to the introduction
of Section 260-A which provided for appeals to the High Court. Under
Section 256(1) of the Income-tax Act, 1961, an application could be
made requiring the Appellate Tribunal to refer a question of law to the
High Court. Sub-Section (2) of Section 256 was specific, which entitled
an aggrieved party to apply to the High Court in case the Tribunal refused
a reference under Section 256(1). If the High Court was not satisfied
with the correctness of the decision of the Appellate Tribunal, it could
require the Appellate Tribunal to state the case and to refer it to the High
Court. There is no provision similar to Section 256(2) of the Income-tax
Act, 1961 in the CrPC and, particularly, in Section 395 thereof. In the
absence of such a provision, we cannot assume such a power. And,
Article 227 cannot, in our view, be used for this purpose. Therefore, the
WP(Crl) No.1582/07 Page 20 of 52 prayer for quashing the order dated 02.11.2007 is, apart from being
untenable, of no consequence.
22. We shall now deal with the prayer under Article 228 for
withdrawal of the case in conjunction with the prayer that Section 5(2) of
the said Telegraph Act be declared as being unconstitutional and the
prayer that the seven interception orders were in violation of the
fundamental and statutory rights of the petitioner. The object of all these
prayers, insofar as the petitioner is concerned, is that the material
collected pursuant to the seven interception orders should not be used
against the petitioner in the pending trial. Mr Dayan Krishnan has raised
a very important issue and that is that, even if the said interception orders
are held to be illegal, the material collected pursuant thereto would still
be admissible and, therefore, there is no question of invoking the
jurisdiction under Article 228 of withdrawing the case to the High Court
or of this court going into the issue of validity of seven interception
orders.
23. However, before we examine that aspect of the matter, it
would be appropriate for us to first examine the Supreme Court decision
in Hukam Chand (supra) and PUCL (supra). In the context of Section
WP(Crl) No.1582/07 Page 21 of 52 5(2) of the said Telegraph Act and Articles 19(1)(a) and 21 of the
Constitution, in Hukam Chand (supra), the Supreme Court observed as
under:-
"13. Section 5(1) if properly construed, does not confer unguided and unbridled power on the Central Government/State Government/ specially authorised officer to take possession of any telegraphs. Firstly, the occurrence of a "public emergency" is the sine qua non for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must record its satisfaction as to the existence of such an emergency. Further, the existence of the emergency which is a pre-requisite for the exercise of power under this section, must be a "public emergency" and not any other kind of emergency. The expression public emergency has not been defined in the statute, but contours broadly delineating its scope and features are discernible from the section which has to be read as a whole. In sub-section (1) the phrase 'occurrence of any public emergency' is connected with and is immediately followed by the phrase "or in the interests of the public safety". These two phrases appear to take colour from each other. In the first part of sub-section (2) those two phrases again occur in association with each other, and the context further clarifies with amplification that a "public emergency" within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence. It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a public emergency with a view to taking further action under this section. Economic emergency is not one of those matters expressly mentioned in the statute. Mere
WP(Crl) No.1582/07 Page 22 of 52 "economic emergency" -- as the High Court calls it -- may not necessarily amount to a "public emergency" and justify action under this section unless it raises problems relating to the matters indicated in the section."
24. From the above extract, it is apparent that the existence of a
'public emergency' is a pre-condition for the exercise of power under
Section 5 of the said Telegraph Act. The Supreme Court observed that
though the expression 'public emergency' has not been defined in the
said Act, the contours broadly delineating its scope and features are
discernible from the section which has to be read as a whole. The
Supreme Court further observed that the two phrases 'occurrence of any
public emergency' and 'in the interest of public safety' appear to take
colour from each other and this makes it clear that a 'public emergency'
within the contemplation of the said provision is one which raises
problems concerning the interest of public safety, the sovereignty and
integrity of India, the security of the State, friendly relations with foreign
States or public order or the prevention of incitement to the commission
of an offence. The Supreme Court also observed that it is for the
appropriate authority to form an opinion with regard to the occurrence of
a public emergency with a view to take a further action under this
provision.
WP(Crl) No.1582/07 Page 23 of 52
25. In PUCL (supra), the Supreme Court was considering a Public
Interest Litigation (PIL) under Article 32 of the Constitution in which the
incidents of phone tapping had been highlighted. In that petition, there
was a challenge to the Constitutional validity of Section 5(2) of the said
Telegraph Act and, in the alternative, it was contended that the said
provisions be suitably read down to include procedural safeguards, to rule
out arbitrariness and to prevent indiscriminate telephone tapping. In this
backdrop, the Supreme Court held that a telephone conversation is an
important facet of a man's private life and the right to privacy would
certainly include a telephone conversation in the privacy of one's home
or in the office. The Supreme Court was of the view that telephone
tapping would thus infract Article 21 of the Constitution of India unless it
is permitted under the procedure established by law. The exact words
used by the Supreme Court are as under:-
"18. The right to privacy -- by itself -- has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy". Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is
WP(Crl) No.1582/07 Page 24 of 52 considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law."
26. The Supreme Court then, in PUCL (supra), examined the
issue as to whether telephone tapping, in any way, impinged upon the
right to freedom of speech and expression guaranteed under Article 19 (1)
(a) of the Constitution. In this context, the Supreme Court held as under:-
"19. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one's convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone- tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution."
27. It is apparent from the above extracts from the PUCL (supra)
decision that the Supreme Court had taken a clear view that telephone
tapping would infract Article 19(1)(a) of the Constitution unless it came
within the grounds of restrictions under Article 19(2). The Supreme
Court was also of the view that telephone tapping would violate Article
WP(Crl) No.1582/07 Page 25 of 52 21 of the Constitution unless it was permitted under a procedure
established by law.
28. The Supreme Court in PUCL (supra), in this backdrop,
noticed that the Constitutional vires of Section 5(2) of the said Telegraph
Act was not seriously challenged. It is obvious that once the Supreme
Court was of the view that telephone tapping was violative of the
fundamental rights guaranteed under Article 19(1)(a) and Article 21 of
the Constitution, unless it came within the grounds of restrictions under
Article 19 (2) or was permitted under a procedure established by law, the
question of Section 5(2) of the said Telegraph Act being per se
unconstitutional no longer survived. This is so because what remained to
be seen was whether the telephone tapping was permitted under a
procedure established by law and or whether it came within the grounds
of restriction under Article 19(2) of the Constitution.
29. With regard to Section 5(2) of the said Telegraph Act, the
Supreme Court in PUCL (supra) observed as under:-
"28. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said section. "Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non for the application of the
WP(Crl) No.1582/07 Page 26 of 52 provisions of Section 5(2) of the Act. 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. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone-tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone-tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.
29. The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency or the existence of a public safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence. When any of the five situations mentioned above to the satisfaction of the competent authority
WP(Crl) No.1582/07 Page 27 of 52 require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so.
30. The above analysis of Section 5(2) of the Act shows that so far the power to intercept
messages/conversations is concerned the section clearly lays down the situations/conditions under which it can be exercised. But the substantive law as laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable. It has been settled by this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : (1978) 2 SCR 621] that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself". Thus understood, "procedure" must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes."
30. The Supreme Court, as is apparent from the above extracts,
was of the view that Section 5(2) itself lays down the parameters of the
power of intercepting messages / conversation and that this power must
have procedural backing so that the exercise of such power is fair and
reasonable. The Supreme Court, therefore, agreed with the submission
that no procedure had been prescribed for the exercise of the power under
Section 5(2) of the said Telegraph Act as it was not disputed that Rules
had not been framed, by then, under Section 7(2)(b) of that Act for
WP(Crl) No.1582/07 Page 28 of 52 providing the precautions to be taken for preventing the improper
interception and disclosure of messages. In this context, the Supreme
Court observed that in the absence of any such provision in the statute, it
was not proper for prior judicial scrutiny as a procedural safeguard and
that it was for the Central Government to make rules under Section 7 of
the said Telegraph Act. The Supreme Court observed that it was entirely
for the Central Government to make such rules on the subject, but till the
time that was done, the right to privacy of an individual had to be
safeguarded and in order to rule out arbitrariness in exercise of the power
under Section 5(2) of the said Telegraph Act, it was necessary to lay
down procedural safeguards for the exercise of power under the said
Section 5(2) so that the right of privacy of a person is protected. The
Supreme Court, in this context, observed as under:-
31. We are of the view that there is considerable force in the contention of Mr Rajinder Sachar, Mr Kapil Sibal and Dr Rajeev Dhavan that no procedure has been prescribed for the exercise of the power under Section 5(2) of the Act. It is not disputed that no rules have been framed under Section 7(2)(b) of the Act for providing the precautions to be taken for preventing the improper interception or disclosure of messages. In the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the rights of the citizens guaranteed under Articles 19(1)(a) and 21 of the Constitution of India. The CBI investigation has
WP(Crl) No.1582/07 Page 29 of 52 revealed several lapses in the execution of the orders passed under Section 5(2) of the Act. Paras 21 and 22 of the report have already been quoted in the earlier part of this judgment.
34. We agree with Mr Sibal that in the absence of any provision in the statute, it is not possible to provide for prior judicial scrutiny as a procedural safeguard. It is for the Central Government to make rules under Section 7 of the Act. Section 7(2)(b) specifically provides that the Central Government may make rules laying down the precautions to be taken for preventing the improper interception or disclosure of messages. The Act was enacted in the year 1885. The power to make rules under Section 7 of the Act has been there for over a century but the Central Government has not thought it proper to frame the necessary rules despite severe criticism of the manner in which the power under Section 5(2) has been exercised. It is entirely for the Central Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguarded. In order to rule out arbitrariness in the exercise of power under Section 5(2) of the Act and till the time the Central Government lays down just, fair and reasonable procedure under Section 7(2)(b) of the Act, it is necessary to lay down procedural safeguards for the exercise of power under Section 5(2) of the Act so that the right to privacy of a person is protected.
35. We, therefore, order and direct as under:
1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued
except by the Home Secretary, Government
of India (Central Government) and Home
Secretaries of the State Governments. In an
urgent case the power may be delegated to
an officer of the Home Department of the
Government of India and the State
WP(Crl) No.1582/07 Page 30 of 52 Governments not below the rank of Joint
Secretary. Copy of the order shall be sent to the Review Committee concerned within
one week of the passing of the order.
2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means of a public
telecommunication system, such communications as are described in the
order. The order may also require the person
to whom it is addressed to disclose the
intercepted material to such persons and in
such manner as are described in the order.
3. The matters to be taken into account in
considering whether an order is necessary
under Section 5(2) of the Act shall include
whether the information which is considered
necessary to acquire could reasonably be
acquired by other means.
4. The interception required under Section 5(2) of the Act shall be the interception of such
communications as are sent to or from one
or more addresses, specified in the order,
being an address or addresses likely to be
used for the transmission of communications
to or from, from one particular person
specified or described in the order or one
particular set of premises specified or
described in the order.
5. The order under Section 5(2) of the Act
shall, unless renewed, cease to have effect at the end of the period of two months from the
date of issue. The authority which issued the order may, at any time before the end of
two-month period renew the order if it
considers that it is necessary to continue the
WP(Crl) No.1582/07 Page 31 of 52 order in terms of Section 5(2) of the Act.
The total period for the operation of the
order shall not exceed six months.
6. The authority which issued the order shall maintain the following records:
(a) the intercepted communications,
(b) the extent to which the material is disclosed, (c) the number of persons and their identity to whom any of the material is disclosed,
(d) the extent to which the material is copied, and
(e) the number of copies made of any of the material.
7. The use of the intercepted material shall be limited to the minimum that is necessary in
terms of Section 5(2) of the Act.
8. Each copy made of any of the intercepted material shall be destroyed as soon as its
retention is no longer necessary in terms of
Section 5(2) of the Act.
9. There shall be a Review Committee
consisting of Cabinet Secretary, the Law
Secretary and the Secretary, Telecommunication at the level of the
Central Government. The Review
Committee at the State level shall consist of Chief Secretary, Law Secretary and another
member, other than the Home Secretary,
appointed by the State Government.
(a) The Committee shall on its own, within two months of the passing of the order by the
authority concerned, investigate whether
there is or has been a relevant order under
Section 5(2) of the Act. Where there is or
WP(Crl) No.1582/07 Page 32 of 52 has been an order, whether there has been
any contravention of the provisions of
Section 5(2) of the Act.
(b) If on an investigation the Committee
concludes that there has been a
contravention of the provisions of Section
5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall
further direct the destruction of the copies of the intercepted material.
(c) If on investigation, the Committee comes to the conclusion that there has been no
contravention of the provisions of Section
5(2) of the Act, it shall record the finding to that effect."
31. We may point out, at this juncture, that subsequent to the
decision in PUCL (supra), the Central Government has, in fact, amended
the said Telegraph Rules and introduced Rule 419-A, which is a virtual
reproduction of the Supreme Court directions in para 35 of the PUCL
(supra) case. The said Rule 419-A was brought into force with effect
from 16.02.1999 and prior to that, but after the PUCL (supra) decision,
the directions as given by the Supreme Court were in vogue.
32. From the above, it is apparent that the issue of the
Constitutional validity of Section 5(2) of the said Telegraph Act is no
longer open for the High Court inasmuch as the Supreme Court in PUCL
WP(Crl) No.1582/07 Page 33 of 52 (supra) took the alternative route of reading down the provision to
include procedural safeguards so as to rule out arbitrariness and to
prevent indiscriminate telephone tapping. From the manner in which the
Supreme Court gave the directions in PUCL (supra), it is apparent that if
those directions were to supplement Section 5(2), it would amount to a
reasonable and fair procedure and the power of interception under Section
5(2) of the said Act would then not be such an arbitrary or unguided or
unfair power as would amount to a violation of Article 19(1)(a) or Article
21 of the Constitution. We are, therefore, of the view that the submission
of the learned counsel for the petitioner that Section 5(2) of the said
Telegraph Act is unconstitutional is not tenable in the light of the
observations and conclusions of the Supreme Court in Hukam Chand
(supra) and PUCL (supra).
33. We shall now consider Article 228 of the Constitution. The
same reads as under:-
"228. Transfer of certain cases to High Court.-- If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may--
(a) either dispose of the case itself, or
WP(Crl) No.1582/07 Page 34 of 52 (b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment."
34. In order to invoke Article 228 of the Constitution, the High
Court must be satisfied that the case pending before a subordinate court
involves a "substantial question of law" as to the interpretation of the
Constitution and the determination of which is necessary for the disposal
of the case. As was pointed out earlier, Mr Krishnan, appearing on behalf
of the CBI, had contended that a question which has been settled by the
Supreme Court can never be regarded as a substantial question of law.
He had placed reliance on the Supreme Court decision in Pankaj
Bhargava v. Mohinder Nath: 1991 (1) SCC 556. In that case, the
Supreme Court has observed as under:-
"10. What is a substantial question of law would certainly depend upon facts and circumstances of every case and if a question of law had been settled by the highest court of the country that question however important and difficult it may have been regarded in the past and however large may be its effect on any of the parties, would not be regarded as substantial question of law. In Raghunath Prasad Singh v. Dy. Commr. of Partabgarh [ (1927) 54 IA 126 : AIR 1927 PC 110] the Judicial Committee observed that a question of law to
WP(Crl) No.1582/07 Page 35 of 52 be considered a "substantial question of law" need not be one of general importance and it could be a substantial question "as between the parties". This Court had occasion to consider the views expressed on the point by the High Courts of Bombay, Nagpur and Madras in Kaikhushroo Pirojsha Ghaira v. C.P. Syndicate Ltd. [ (1948) 50 Bom LR 744 : AIR 1949 Bom 134] , Dinkar Rao Dhar Rao Rajoorkar v.
Rattansey Asariya Bhate [ ILR 1949 Nag 224 : AIR 1949 Nag 300] and Rimmalapudi Subba Rao v. Noony Veeraju [ ILR 1952 Mad 264 : AIR 1951 Mad 969] respectively placing differing emphasis on what was a "substantial" question of law between the parties. It was held by this Court that while the view taken by the Bombay High Court was too narrow, the one taken by the Nagpur High Court was too broadly stated. Approving the view taken by the Madras High Court it was observed: (SCR pp. 557-58)
"...The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of
general public importance of whether it directly and substantially affects the rights of the
parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question
would not be a substantial question of law."
(emphasis supplied)
35. It is obvious that Mr Krishnan is right in contending that a
question of law, which has been settled by the Supreme Court, however,
WP(Crl) No.1582/07 Page 36 of 52 important or difficult it may have been regarded in the past and whatever
be the magnitude of its effect on any of the parties, cannot be regarded as
a substantial question of law. It is obvious that the questions with regard
to Section 5(2) of the said Telegraph Act already stand settled by the
Supreme Court in PUCL (supra) and the parameters for its functioning
are already clearly laid out. It is for the courts to examine the facts of
each case and to arrive at a conclusion as to whether the parameters have
been transgressed in each individual case or not. The question would be
one of fact and not of law and certainly not a substantial question of law.
Therefore, we agree with the submission of Mr Krishnan that this is not a
case in which we can invoke Article 228 of the Constitution and
withdraw the case pending before the learned Special Judge.
36. The submission of Mr Krishnan that, in any event, no question
of law as such arises for consideration because even if the evidence is
gathered illegally, the same would still be admissible, needs to be
considered. The submission was that even if, on the facts of the present
case, the trial court came to the conclusion that the seven interception
orders in question were illegal in the sense that there was some
contravention of the provisions of Section 5(2) of the said Telegraph Act
or of Rule 419-A of the said Telegraph Rules, the same would not, in any
WP(Crl) No.1582/07 Page 37 of 52 event, enable the trial court to detract from the position that the material
collected pursuant to the said orders would be admissible, as long as they
were relevant. Several decisions had been referred to by Mr Dayan
Krishnan which we have noted earlier.
37. In Barindra Kumar Ghose (supra), Lawrence H. Jenkins, CJ,
observed as under:-
"61. Next, Mr. Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For, without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded. As
Jimutavahana with his shrewd common sense observes- -"a fact cannot be altered by 100 texts," and as his commentator quaintly remarks: "If a Brahmana be slain, the precept 'slay not a Brahmana' does not annul the murder." But the absence of the precautions designed by the legislature lends support to the argument that the alleged discovery should be carefully scrutinized. In this case there do seem to have been some irregularities, In the case of some searches there were not the two witnesses directed by the Code, while in the case of others it is at least problematical whether the witnesses called in comply with the statutory test of being "respectable inhabitants of the locality."
WP(Crl) No.1582/07 Page 38 of 52
38. In R.M. Malkani (supra), the Supreme Court, inter alia,
observed that "there is warrant for the proposition that even if evidence is
illegally obtained, it is admissible". The Supreme Court observed as
under:-
"24. It was said by counsel for the appellant that the tape recorded conversation was obtained by illegal means. The illegality was said to be contravention of Section 25 of the Indian Telegraph Act. There is no violation of Section 25 of the Telagraph Act in the facts and circumstances of the present case. There is warrant for proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen [ (1870) 34 JP 759] . The Judicial Committee in Kuruma, Son of Kanju v. R. [ 1955 AC 197] dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.
WP(Crl) No.1582/07 Page 39 of 52
30. It was said that the admissibility of the tape recorded evidence offended Articles 20(3) and 21 of the Constitution. The submission was that the manner of acquiring the tape-recorded conversation was not procedure established by law and the appellant was incriminated. The appellant's conversation was voluntary. There was no compulsion. The attaching of the tape-recording instrument was unknown to the appellant. That fact does not render the evidence of conversation inadmissible. The appellant's conversation was not extracted under duress or compulsion. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham[ (1961) 8 Cox CC 498] it was said "it matters not how you get it if you steal it even, it would be admissible in evidence". As long as it is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible.
31. There is no scope for holding that the appellant was made to incriminate himself. At the time of the conversation there was no case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or highhanded interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or even irregular method in obtaining the tape-recording of the conversation."

39. While the Supreme Court in R.M. Malkani (supra) held that a
telephone conversation of an innocent citizen will be protected by the
court against wrongful and highhanded interference by tapping the
conversation, the protection is not for the guilty citizen against the efforts
of the police to vindicate the law and prevent corruption of public
servants. The Supreme Court referred to the decision in Kuruma, Son of
Kanju v. R.: 1955 AC 197 and observed that in that case, the Judicial
Committee held that the evidence was rightly admitted and the reason
given was that evidence was admissible, it mattered not how it was
obtained. The Supreme Court also observed and noted that there is, of
course, always a word of caution and that is that the Judge has a
discretion to disallow evidence in a criminal case if the strict rules of
admissibility would operate unfairly against the accused and that caution
is the golden rule in criminal jurisprudence.
40. In Pooran Mal (supra), which is a Constitution Bench
decision of the Supreme Court, it has been held that so far as India is
concerned, its law of evidence is modelled on the rules of evidence which
prevailed in English law and the courts in India and in England have
constantly refused to exclude relevant evidence merely on the ground that
it is obtained by illegal search or seizure. The Supreme Court referred to
 the Calcutta High Court decision in Barindra Kumar Ghose (supra)
which we have already mentioned above. The Supreme Court then
examined the decision of the Allahabad High Court in Emperor v.
Allahdad Khan: ILR 35 All 358, Kuruma v. Queen: 1955 AC 197,
Herman King v. Queen: 1969 1 AC 304. The Supreme Court noticed
that in Herman King (supra), the Privy Council, following Kuruma v. R.
(supra), held that it was open to the court not to admit the evidence
against the accused if the court was of the view that the evidence had
been obtained by conduct of which the prosecution ought not to take
advantage. But the Supreme Court further noted that that was not a rule
of evidence, but a rule of prudence and fair play. In this backdrop, the
Supreme Court observed as under:-
"... It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out."
41. Consequently, in the context of the factual matrix of the case
before it, the Supreme Court held as under:-
"25. In that view, even assuming, as was done by the High Court, that the search and seizure were in contravention of the provisions of Section 132 of the Income Tax Act, still the material seized was liable to
be used subject to law before the Income tax authorities against the person from whose custody it was seized and, therefore, no Writ of Prohibition in restraint of such use could be granted. It must be, therefore, held that the High Court was right in dismissing the two writ petitions. The appeals must also fail and are dismissed with costs."
It is obvious that the Constitution Bench of the Supreme Court gave its
imprimatur to the proposition that any evidence, if relevant, even if it was
illegally obtained, would be admissible.


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