18 Jan 2022 4:00 AM GMT
The Delhi High Court has observed that if illegally intercepted messages or audio conversations pursuant to an order having no sanction of law are permitted, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens. Justice Chandra Dhari Singh thus set aside two orders passed by Special Judge which had framed charges...
The Delhi High Court has observed that if illegally intercepted messages or audio conversations pursuant to an order having no sanction of law are permitted, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens.
Justice Chandra Dhari Singh thus set aside two orders passed by Special Judge which had framed charges against one Jatinder Pal Singh in 2012 in a case registered by CBI, on the basis of evidence gathered through such illegal means.
The case alleged that there was a criminal conspiracy with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012.
The controversy had arisen out of an alleged bribery for allowing the admissions by bypassing the deficiencies in the process. The Petitioner was accused of having acted as a middleman in the alleged bribery.
CBI had placed the mobile phones under telephonic surveillance during the period when MCI received the application for renewal of permission from GSMCH, Patiala for admission into 4th Batch of the MBBS course. The investigation further revealed that criminal conspiracy to obtain favors in the form of recommendation for permission for admission began after deficiencies were pointed out during first inspection of GSMCH, Patiala. Accordingly, the FIR was registered against the accused persons including the petitioner.
In a detailed order, the Court touched upon various aspects including legislative jurisprudence of relevant provisions, the scope of revisional jurisdiction, framing of charge and speedy trial.
On the aspect of alleged illegally intercepted telephonic recordings contained in the charge-sheet, the petitioner had argued that requirements laid down by law for placing the reliance on such audio conversations were not fulfilled by the Investigating Authority. It was further argued that illegal tapping of telephone conversation is a violation of the right to privacy.
The Court perused Rule 419A of the Rules framed under the Telegraph Act and took note of the fact that the order of the Home Secretary granting permission to intercept telephonic conversations is to be forwarded to the Review Committee within seven days of passing the order, for the purpose of being reviewed by the Committee.
"This Court does not find any material on record to establish that any review of the order of the Home Secretary was conducted in compliance of the aforesaid rules framed under the Telegraph Act. Therefore, this Court is convinced that the Special Judge while passing the impugned orders has totally ignored the provisions of the aforesaid rules," the Court said.
The Court was of the view that the mandatory requirements laid down by law for placing reliance on such audio conversations, were not fulfilled. It added that Rule 419(A)(17) which provides for destruction of intercepted message also adopt the said directions.
The Court said that the Special Judge while passing the impugned orders ignored the settled legal positions and directions of the Supreme Court.
"It is also relevant to add here that if the directions of the Hon'ble Supreme Court in PUCL which are now re-enforced and approved by the Hon'ble Supreme Court in K.S. Puttaswamy as also the mandatory rules in regard to the illegally intercepted messages/audio conversations pursuant to an order having no sanction of law, are permitted, it would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Hon'ble Supreme Court," the Court said.
The Court also added that the documents of the Ministry of Health & Family Welfare in reference to Union Heath Minister's note and subsequent orders of the department and the reports of the inspection team were also ignored by the Special Judge while passing the impugned orders.
"This Court is of the view that the intercepted telephonic conversations are insufficient to fulfil the requirement of Section 107 IPC so as to establish a prima facie case that the petitioner committed the offence of abetment as specified under Section 12 of PC Act and other offences as alleged in the chargesheet," the Court observed.
Other observations are as follows:
- A mere intention or preparation to instigate is neither instigation nor abetment. The offence is complete as soon as the abettor has incited another to commit a crime, whether the latter consents or not or whether, having consented, he commits the crime or not. It depends upon the intention of the person who abets and not upon the act which is actually done by the person whom he abets.
- In order to constitute an offence of abetment by conspiracy, there must be a combination of two or more persons in the conspiracy and an act or illegal omission must take place in pursuance of that conspiracy and in order to doing of that thing.
- Mere giving of aid will not make the act of abetment an offence, if the person who gave the aid did not know that an offence was being committed or contemplated. The intention should be to aid an offence or to facilitate the commission of crime.
- The order of framing charge or that of discharge is neither interlocutory nor final and hence, do not attract the bar of Section 397 (2) of the Code. The High Court is thus competent to entertain a revision petition against such orders.
- At the stage of discharge/framing of charge, the Judge is merely required to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused, or in other words, is a prima facie case made out against the accused.
"Thus, in an offence alleging conspiracy, where the main conspirator has been discharged and in the absence of evidence implicating the petitioner as a co-conspirator alleged to be a middle-man, there is no point in continuing with the case and keep the entire criminal justice machinery running endlessly especially in light of the fact that the criminal proceedings had been initiated ten years back and has stayed pending ever since," the Court said.
Accordingly, the Court allowed the petition and set aside the two impugned orders.
Case Title: JATINDER PAL SINGH v. CENTRAL BUREAU OF INVESTIGATION
Citation: 2022 LiveLaw (Del) 23
Click Here To Read Order