REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.39 OF 2006
Amar Singh ...Petitioner(s)
- Versus -
Union of India and others ...Respondent(s)
J U D G M E N T
GANGULY, J.
1. In this writ petition, filed under Article 32,
the petitioner is seeking to protect his
fundamental right to privacy under Article 21 of
the Constitution of India. The petitioner's case is
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 respondent No.7,
had been intercepting the petitioner's conversation
1
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,
amounts to intrusion on the privacy of the affected
people, and is motivated by political ill will and
has been directed only towards those who are 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
2
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 this Court may lay down guidelines on
interception of phone conversations in addition to
the ones laid down by this Court in its judgment in
People's Union for Civil Liberties (PUCL) v. Union
of India and Another (1997) 1 SCC 301.
2. The petitioner's case is 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
3
Delhi, authorising the said request. The case of
respondent no. 8 is 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
are fabricated with forged signatures and they are
not genuine. Alleging forgery, a criminal case in
that respect had already been initiated.
3. In the course of the hearing, by filing an
interlocutory application (no.2 of 2006) the
petitioner submitted that the recordings of the
said conversations had been made available to some
journalists/news agencies. In view of these
submissions, this Court directed the electronic and
the print media not to publish any part of the said
4
conversations, vide Court's order dated 27th
February, 2006.
4. 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.
5. In this matter pursuant to the direction of
this Court, a detailed affidavit has been filed by
one R. Chopra, Joint Secretary (Home Department) of
the Government of National Capital Territory of
Delhi, in which it has been clearly stated that the
Principal Secretary (Home) in the Government of
National Capital Territory of Delhi, is authorised
5
by the Lieutenant Governor of Delhi to exercise
powers to order interception of phone conversation
for a period specified in such orders in accordance
with the provisions of Section 5 of Indian
Telegraph Act, 1885 (the said Act). From the order
of authorisation dated 10th December, 1997, it
appears that the same was issued pursuant to the
judgment of this Court dated 18th December, 1996 in
People's Union for Civil Liberties (supra) and also
Section 5 (2) read with the Government of India,
States Ministry Notification No. 104-J, dated 24th
October, 1950.
6. In the said affidavit it has been clearly
stated by the deponent that no request for
interception is examined by the Home Department
unless it is accompanied by a confirmation that the
same has the prior approval of the Commissioner of
Police, Delhi. It was clarified that no Joint
Commissioner of Police or police officer of any
other rank can directly request for an
6
interception, without first obtaining a prior
approval of the Commissioner of Police. It was also
clarified that no phone interception order is suo
motu issued by the Principal Secretary (Home)
without a request from the Government agency.
Majority of interception requests, received by the
Principal Secretary (Home), are from Delhi Police.
7. In respect of the petitioner's telephone no.
(011 39565414), the deponent specifically stated
that no order for interception of the said number
was ever issued either on 9th November, 2005, or
earlier, or for that matter, even later. The
categorical denial in this respect in the said
affidavit is set out below.
(v)...This categorical denial is being submitted
after careful scrutiny of all the relevant
records. Also it is respectfully stated on the
basis of careful scrutiny of records, that no
request for interception of the petitioner's
telephone number 011 39565414 was received by
the Principal Secretary (Home)/respondent no. 4
from any Police Officer or for that matter any
agency, governmental / police or otherwise.
7
(vi) In view of this, the order bearing no. F.
5/1462/2004 - HG dated 9.11.2005, a copy of
which is appended to the writ petition at page
28 as Annexure B, and having an endorsement No.
F. 5/1462/2004 - HG/7162 of the same date, and
purportedly issued under the signature of the
then Principal Secretary (Home), is forged and
fabricated document.
8. An affidavit has also been filed on behalf of
Union of India by one Mr. J.P.S. Verma, Deputy
Secretary, Ministry of home affairs, North Block,
New Delhi, in which reference was made to certain
orders passed by this Court in this petition, and
thereafter, reference was also made to the judgment
of this Court in People's Union for Civil Liberties
(supra), and the various provisions of Indian
Telegraph Act. The Central Government made it very
clear that it was fully aware of the sensitivity
relating to the conversations on telephone, and the
privacy rights thereon. Reference was also made to
technological measures to avoid unauthorised
interceptions and the changed security scenario.
8
9. In this matter an additional affidavit has been
filed by Shri Alok Kumar, Deputy Commissioner of
Police, Headquarters. In that affidavit it has 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.
10. 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, on 30th
December, 2005. 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 on 8th
February, 2011, it has been stated by the deponent
that the Final Report in connection with the said
9
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 has commenced and
one witness, Shri Ranjit Narain the then Joint
Commissioner of Police was examined.
11. Here we may point out the casual manner in
which the petitioner approached the Court. The
affidavit filed by the petitioner in support of his
petition, and relying on which this Court issued
notice on 24th January, 2006, is 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. The relevant portion of the petitioner's
affidavit runs as under:
10
"1.That I am the Petitioner in the above
Writ Petition and am conversant with
the facts and circumstances of the
case. As such, I am competent to swear
this affidavit.
2.That I have read the contents of paras
1 to 9 on pages 1 to 24 of the
accompanying Writ Petition and have
understood the same. I state that what
is stated therein is true to my
knowledge and belief.
3.That I have read the accompanying List
of Dates and Events from pages B to D
and have understood the same. I state
that what is stated therein, is true to
my knowledge and belief."
12. The provision of Order XIX of Code of Civil
Procedure, deals with affidavit. Rule 3 (1) of
Order XIX which deals with matters to which the
affidavit shall be confined provides as follows:
"Matters to which affidavits shall be
confined. - (1) affidavits shall be
confined to such facts as the deponent is
able of his own knowledge to prove, except
on interlocutory applications, on which
statements of his belief may be admitted;
provided that the grounds thereof are
stated."
13. Order XI of the Supreme Court Rules 1966 deals
with affidavits. Rule 5 of Order XI is a virtual
11
replica of Order XIX Rule 3 (1). Order XI Rule 5 of
the Supreme Court Rules is therefore set out:
"Affidavits shall be confined to such
facts as the deponent is able of his own
knowledge to prove, except on
interlocutory applications, on which
statements of his belief may be admitted,
provided that the grounds thereof are
stated."
14. In this connection Rule 13 of Order XI of the
aforesaid Rules are also relevant and is set out
below:
"13. In this Order, `affidavit' includes a
petition or other document required to be
sworn or verified; and `sworn' includes
affirmed. In the verification of
petitions, pleadings or other proceedings,
statements based on personal knowledge
shall be distinguished from statements
based on information and belief. In the
case of statements based on information,
the deponent shall disclose the source of
this information."
15. The importance of affidavits strictly
conforming to the requirements of Order XIX Rule 3
of the Code has been laid down by the Calcutta High
Court as early as in 1910 in the case of Padmabati
Dasi v. Rasik Lal Dhar [(1910) Indian Law Reporter
12
37 Calcutta 259]. An erudite Bench, comprising
Chief Justice Lawrence H. Jenkins and Woodroffe, J.
laid down:
"We desire to impress on those who propose
to rely on affidavits that, in future, the
provisions of Order XIX, Rule 3, must be
strictly observed, and every affidavit
should clearly express how much is a
statement of the deponent's knowledge and
how much is a statement of his belief, and
the grounds of belief must be stated with
sufficient particularity to enable the
Court to judge whether it would be sage to
act on the deponent's belief."
16. This position was subsequently affirmed by
Constitution Bench of this Court in State of Bombay
v. Purushottam Jog Naik, AIR 1952 SC 317. Vivian
Bose, J. speaking for the Court, held:
"We wish, however, to observe that the
verification of the affidavits produced
here is defective. The body of the
affidavit discloses that certain matters
were known to the Secretary who made the
affidavit personally. The verification
however states that everything was true to
the best of his information and belief. We
point this out as slipshod verifications
13
of this type might well in a given case
lead to a rejection of the affidavit.
Verification should invariably be modelled
on the lines of Order 19, Rule 3, of the
Civil Procedure Code, whether the Code
applies in terms or not. And when the
matter deposed to is not based on personal
knowledge the sources of information
should be clearly disclosed. We draw
attention to the remarks of Jenkins, C. J.
and Woodroffe, J. in Padmabati Dasi vs.
Rasik Lal Dhar 37 Cal 259 and endorse the
learned Judges' observations."
17. In Barium Chemicals Limited and another v.
Company Law Board and others, AIR 1967 SC 295,
another Constitution Bench of this Court upheld the
same principle:
"The question then is: What were the
materials placed by the appellants in
support of this case which the respondents
had to answer? According to Paragraph 27
of the petition, the proximate cause for
the issuance of the order was the
discussion that the two friends of the 2nd
respondent had with him, the petition
which they filed at his instance and the
direction which the 2nd respondent gave to
respondent No. 7. But these allegations
are not grounded on any knowledge but only
on reasons to believe. Even for their
reasons to believe, the appellants do not
disclose any information on which they
were founded. No particulars as to the
alleged discussion with the 2nd respondent,
or of the petition which the said two
friends were said to have made, such as
14
its contents, its time or to which
authority it was made are forthcoming. It
is true that in a case of this kind it
would be difficult for a petitioner to
have personal knowledge in regard to an
averment of mala fides, but then were such
knowledge is wanting he has to disclose
his source of information so that the
other side gets a fair chance to verify it
and make an effective answer. In such a
situation, this Court had to observe in
1952 SCR 674: AIR 1952 SC 317, that as
slipshod verifications of affidavits might
lead to their rejection, they should be
modelled on the lines of O. XIX, R. 3 of
the Civil Procedure Code and that where an
averment is not based on personal
knowledge, the source of information
should be clearly deposed. In making these
observations this Court endorse the
remarks as regards verification made in
the Calcutta decision in Padmabati Dasi v.
Rasik Lal Dhar, (1910) ILR 37 Cal 259."
18. Another Constitution Bench of this Court in A.
K. K. Nambiar v. Union of India and another, AIR
1970 SC 652, held as follows:
"The appellant filed an affidavit in
support of the petition. Neither the
petition nor the affidavit was verified.
The affidavits which were filed in answer
to the appellant's petition were also not
verified. The reasons for verification of
affidavits are to enable the Court to find
out which facts can be said to be proved
on the affidavit evidence of rival
15
parties. Allegations may be true to
knowledge or allegations may be true to
information received from persons or
allegations may be based on records. The
importance of verification is to test the
genuineness and authenticity of
allegations and also to make the deponent
responsible for allegations. In essence
verification is required to enable the
Court to find out as to whether it will be
safe to act on such affidavit evidence. In
the present case, the affidavits of all
the parties suffer from the mischief of
lack of proper verification with the
result that the affidavits should not be
admissible in evidence."
19. In the case of Virendra Kumar Saklecha v.
Jagjiwan and others, [(1972) 1 SCC 826], this Court
while dealing with an election petition dealt with
the importance of disclosure of source of
information in an affidavit. This Court held that
non-disclosure will indicate that the election
petitioner did not come forward with the source of
information at the first opportunity. The importance
of disclosing such source is to give the other side
notice of the same and also to give an opportunity
to the other side to test the veracity and
genuineness of the source of information. The same
16
principle also applies to the petitioner in this
petition under Article 32 which is based on
allegations of political motivation against some
political parties in causing alleged interception of
his telephone. The absence of such disclosure in the
affidavit, which was filed along with the petition,
raises a prima facie impression that the writ
petition was based on unreliable facts.
20. In case of M/s Sukhwinder Pal Bipan Kumar and
others v. State of Punjab and others, [(1982) 1 SCC
31], a three Judge Bench of this Court in dealing
with petitions under Article 32 of the Constitution
held that under Order XIX Rule 3 of the Code it was
incumbent upon the deponent to disclose the nature
and source of his knowledge with sufficient
particulars. In a case where allegations in the
petition are not affirmed, as aforesaid, it cannot
be treated as supported by an affidavit as required
by law. (See para 12 page 38)
17
21. The purpose of Rules 5 and 13 of the Supreme
Court Rules, set out above, has been explained by
this Court in the case of Smt. Savitramma v. Cicil
Naronha and another, AIR 1988 SCC 1987. This Court
held, in para 2 at page 1988, as follows:
"...In the case of statements based on
information the deponent shall disclose
the source of his information. Similar
provisions are contained in Order 19, Rule
3 of the Code of Civil Procedure.
Affidavit is a mode of placing evidence
before the Court. A party may prove a fact
or facts by means of affidavit before this
Court but such affidavit should be in
accordance with Order XI, Rules 5 and 13
of the Supreme Court Rules. The purpose
underlying Rules 5 and 13 of Order XI of
the Supreme Court Rules is to enable the
Court to find out as to whether it would
be safe to act on such evidence and to
enable the court to know as to what facts
are based in the affidavit on the basis of
personal knowledge, information and belief
as this is relevant for the purpose of
appreciating the evidence placed before
the Court, in the form of affidavit...."
22. In the same paragraph it has also been stated
as follows:
"...If the statement of facts is based on
information the source of information must
18
be disclosed in the affidavit. An
affidavit which does not comply with the
provisions of Order XI of the Supreme
Court Rules, has no probative value and it
is liable to be rejected..."
23. In laying down the aforesaid principles, this
Court in Smt. Savitramma (supra) relied on a full
Bench judgment in Purushottam Jog Naik (supra).
24. In the instant case, the petitioner invoked the
extraordinary writ jurisdiction of this 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 is very serious in the sense that he is
alleging an attempt by the government of
intercepting his phone and he is further alleging
that in making this attempt the government is
acting on extraneous considerations, and is
virtually acting in furtherance of the design of
the ruling party. It is, therefore, imperative that
before making such an allegation the petitioner
19
should be careful, circumspect and file a proper
affidavit in support of his averment in the
petition.
25. In our judgment, this is the primary duty of a
petitioner who invokes the extraordinary
jurisdiction of this Court under Article 32.
26. It is very disturbing to find that on the basis
of such improper and slipshod affidavit, notice was
issued on the petition, as stated above, and
subsequently a detailed interim order was passed on
27th February, 2006 to the following effect:
"Mr. Mukul Rohtagi, learned senior
counsel, on behalf of the petitioner
submits that till this Court decides the
guidelines in respect of tapping of
telephones, a general order of restraint
may be passed restraining publication by
either electronic or print media of
unauthorised tape record versions, We have
asked the view points and assistance of
Mr. Goolam E. Vahanavati, learned
Solicitor General and Mr. Gopal
Subramaniam, learned Additional Solicitor
General. Both learned counsel submit that
they see no prejudice for the order of
restrain as sought for by Mr. Rohtagi
being made."
20
Having regard to the facts and
circumstances, we direct that electronic
and print media would not publish/display
the unauthorisedly and illegally recorded
telephone tapped versions of any person
till the matter is further heard and
guidelines issued by this Court.
27. That interim order continued for about four
years and is continuing till now.
28. 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 has been filed by the
petitioner.
21
29. It appears 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 appears
that petitioner's averments in paragraphs 2(v),
2(vii), 2(viii) and 2(ix) are 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.
30. The affidavit filed by Mr. R. Chopra on behalf
of the Government of National Capital Territory,
22
New Delhi is of some relevance in connection with
the part played by respondent No.8.
31. In paragraph I, sub paragraph (IV), while
giving para wise reply to the writ petition, it has
been reiterated that in the order dated 9th
November, 2005 (Annexure `B' to the writ petition)
there are glaring discrepancies. Those
discrepancies which have been noted are as follows:
"...(iv) It is vehemently denied that the
interception order dated 9th November,2005
was issued by the Principal
Secretary(Home) or any other officer of
the Home Department of Government of NCT
of Delhi in respect of phone No. 011-
39565414 belonging to the petitioner, at
any time. The order dated 9th November 2005
is forged and fabricated. That prima facie
on close scrutiny of the purported order
No. F.5/1462/2004-HG dated 9.11.2005
issued by the Principal Secretary(Home),
Govt. of NCT of Delhi and endorsement No.
F.5/1462/2004-HG/7162 of the same date
purportedly issued by the Deputy
Secretary(Home) which has been annexed as
Annexure B to the writ petition following
discrepancies can be noted and they are as
follows:-
(a) The number of file i.e. No.
F.5/1462/2004-HG cited on the
left hand top of the order, is
on the fact of it, erroneous, as
23
a letter mentioning the year
2004 cannot be issued in the
year 2005, as the
forged/fabricated order of
9/11/2005 purports to do.
(b) It is further submitted that the
interception file No.
F.5/1462/2004-HG in Home
Department pertains to
interception of some other
telephone number, which do not
mention the petitioner's number.
It is pertinent to mention that
the interception order in the
above file was issued on
22.12.2004 i.e. nine months
earlier than the purported
interception with the petitioner's
telephone number.
(c) This shows that the aforementioned
file number was simply written on
the fabricated or forged order of
9th November 2005 referred to
above, which has been cited by the
petitioner in his writ petition.
(d) It is respectfully submitted that
signatures of the then Principal
Secretary (Home) and those of then
Deputy Secretary(Home) have been
forged and fabricated.
(e) It is respectfully submitted that
the file endorsement number in the
purported interception order dated
9th November, 2005 there is mention
of No. F.5/1462/2004-HG/7162. This
dispatch number 7162 is itself
wrong and fake as the dispatch
24
number 7162 was given to a
communication issued on 10th
November 2005 and this concerned
the forwarding of a dismissal
order against a Deputy
Superintendent of the Central Jail
Tihar.
32. Apart from the various discrepancies, the
deponent also pointed out in sub paragraph (f) of
para I (IV) the following gross spelling mistakes
in the purported order dated 9.11.2005:
(i) On the first line the words
"satisfied" and "interest" have been
mis-spelt as "setisfied" and "intrest"
(ii) On the second line the word "interest"
has been mis-spelt as "intrest"
(iii)On the fifth line the word
"disclosure" has been mis-spelt as
"dicloser".
(iv)On the eighth line the word "the" has
been mis-spelt as "te". The word Rules"
has been mis-spelt as "Ruls" and word
"exercise" has been mis-spelt as
"exercies".
(v)In the eleventh line the word "message"
has been mis-spelt as "massage", while
on the 12th line the word "messages" has
been mis-spelt as "massage"
(vi)In the endorsement forwarding the
copies the purported order of 9th
November, 2005 the word "Additional
25
Commissioner" has been mis-spelt as
"Addi commissioner" and on the
following line words "Chairman" and
"Committee" have been mis-spelt as
"Cairman" and "Committe" respectively.
33. In view of such disclosures in the affidavit of
the Police authorities as also in the affidavit
filed by Mr. Chopra on behalf of Delhi
Administration, it appeared strange to this court
how the service provider, respondent no. 8 could
act on the basis of communications dated 22.10.2005
and 9.11.2005. To this Court, it appeared that any
reasonable person or a reasonable body of persons
or an institution which is discharging public duty
as a service provider, before acting on an order
like the one dated 9.11.2005, would at least
carefully read its contents. Even from a casual
reading of the purported communication dated
9.11.2005, containing so many gross mistakes, one
would reasonably be suspicious of the authenticity
of its text.
26
34. A query in this respect, made by the Court, was
answered in a subsequent affidavit, filed on behalf
of the respondent No.8, by one Col. A.K. Sachdeva,
working as its Nodal Officer.
35. In the said affidavit it has been stated that
similar orders containing comparable mistakes were
issued by respondent No.4 and that it was
impossible for the service provider to devise a
practice on the basis of which the service provider
could postpone interception on the ground of gross
mistakes instead of taking an immediate action
which is required for the safety of general public
and in public interest.
36. It is further stated that when a request is
made to the service provider, it is duty bound to
comply with the same and there is no provision in
the rule under which the service provider could
send back the written request pointing out the
mistakes contained therein.
27
37. Reference has also been made to License
Condition No. 42 which provides that service
provider is to give assistance, as per request, to
the Law Enforcement Agencies and any violation of
the said condition may lead to imposition of a
heavy penalty on the service provider.
38. Considering the materials on record, this Court
is of the opinion that it is no doubt true that the
service provider has to act on an urgent basis and
has to act in public interest. But in a given case,
like the present one, where the impugned
communication dated 9.11.2005 is full of gross
mistakes, the service provider while immediately
acting upon the same, should simultaneously verify
the authenticity of the same from the author of the
document. This Court is of the opinion that the
service provider has to act as a responsible agency
and cannot act on any communication. Sanctity and
regularity in official communication in such
matters must be maintained especially when the
28
service provider is taking the serious step of
intercepting the telephone conversation of a person
and by doing so is invading the privacy right of
the person concerned and which is a fundamental
right protected under the Constitution, as has been
held by this Court.
39. Therefore, while there is urgent necessity on
the part of the service provider to act on a
communication, at the same time, the respondent
No.8 is equally duty bound to immediately verify
the authenticity of such communication if on a
reasonable reading of the same, it appears to any
person, acting bona fide, that such communication,
with innumerable mistakes, falls clearly short of
the tenor of a genuine official communication.
Therefore, the explanation of the service provider
is not acceptable to this Court. If the service
provider could have shown, which it has not done in
the present case, that it had tried to ascertain
from the author of the communication, its
29
genuineness, but had not received any response or
that the authority had accepted the communication
as genuine, the service provider's duty would have
been over. But the mere stand that there is no
provision under the rule to do so is a lame excuse,
especially having regard to the public element
involved in the working of the service provider and
the consequential effect it has on the fundamental
right of the person concerned.
40. In view of the public nature of the function of
a service provider, it is inherent in its duty to
act carefully and with a sense of responsibility.
This Court is thus constrained to observe that in
discharging the said duty, respondent No. 8, the
service provider has failed.
41. Of course, this Court is not suggesting that in
the name of verifying the authenticity of any
written request for interception, the service
provider will sit upon it. The service provider
30
must immediately act upon such written request but
when the communication bristles with gross
mistakes, as in the present case, it is the duty of
the service provider to simultaneously verify its
authenticity while at the same time also act upon
it. The Central Government must, therefore, frame
certain statutory guidelines in this regard to
prevent interception of telephone conversation on
unauthorised communication, as has been done in
this case.
42. In this case very strange things have happened.
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 are indirect references to the said
respondent. In various grounds taken in support of
the petition, allegations have been specifically
made against the 7th respondent.
31
43. Even though in the order of this Court dated
27th February, 2006, there is an observation that
respondent No. 7 has been impleaded unnecessarily,
the said respondent has not been deleted and in the
amended cause title also, respondent No. 7 remains
impleaded. The averments against the said
respondent were not withdrawn by the petitioner.
44. In the month of February of 2011, towards the
closing of the hearing, an additional affidavit,
which makes very interesting reading, was filed by
the petitioner. All the three paragraphs of that
affidavit are set out:
"I, Amar Singh, son of late Shri H. G.
Singh, aged 54 years residing at 27,
Lodhi Estate New Delhi, do hereby
solemnly swear on oath as under: -
1. That I am the petitioner in the above
matter and am conversant with the facts
and circumstances of the case and as such
competent to swear this affidavit. The
Petitioner craves leave of this Hon'ble
Court to place the following additional
facts on record before this Hon'ble Court
which has a bearing on the matter.
2. That the Petitioner was informed by
one Mr. Anurag Singh, alias Rahul, who is
one of the accused in the FIR No.
152/2005, registered in Delhi that his
phone was being tapped at the behest of
32
political opponents. However, later the
Delhi Police investigated the mater and
the said Anurag Singh alias Rahul, was
arrested by the Delhi Police for forging
and fabricating the orders on the basis
of which the phone line of the petitioner
was tapped. Further, the Anurag Singh,
alias, Rahul, edited and tampered certain
conversations of the Petitioner.
3. It is stated that the Petitioner was
the complainant in the instant case. It
is stated that the Petitioner is
satisfied with the investigation of Delhi
Police, and therefore withdraws all
averments, contentions and allegations
made against Respondent no. 7."
45. All the aforesaid paragraphs were verified by
the petitioner as true to his knowledge.
46. The said affidavit of the petitioner filed in
February, 2011, completely knocks the bottom out of
the petitioner's case, inasmuch as by the said
affidavit the petitioner seeks to withdraw all
averments, allegations and contentions against the
respondent no. 7. The main case of the petitioner
is based on his allegations against respondent
no.7. The burden of the song in the writ petition
is that the respondent no. 7, acting out of a
political vendetta and exercising its influence on
33
Delhi Police administration caused interception of
the telephone lines of various political leaders of
the opposition including that of the petitioner.
The subsequent affidavit also acknowledges that the
petitioner is 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 makes a statement that the said
Anurag Singh edited and tampered some of the
conversations of the petitioner. It is very
interesting to note that when the petitioner filed
a detailed affidavit in support of his writ
petition, pursuant to the order of this Court, the
petitioner admitted that he relied on the
information from the same Anurag Singh, and the
main annexures to the petition, namely A and B were
received by him from the same Anurag Singh.
Paragraphs 2 (2), 2 (3), 2 (4) and 2 (6) are based
on the information received from Mr. Anurag Singh.
34
But he did not say all these in his affidavit when
he filed the writ petition on 21st January 2006.
47. It may be noted 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.
48. It therefore appears that the petitioner has
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 is still continuing.
35
49. Now when the matter has come up for contested
hearing, he suddenly withdraws his allegations
against the respondent no. 7 and feels satisfied
with the investigation of the Police in connection
with the aforesaid case of forgery and also states
that the same Anurag Singh "edited and tampered
certain conversations of the petitioner".
50. This Court wants to make it clear that an
action at law is not a game of chess. A litigant
who comes to Court and invokes its writ
jurisdiction must come with clean hands. He cannot
prevaricate and take inconsistent positions.
51. Apart from the aforesaid, in the writ petition
which was filed on 21st January, 2006, there is no
mention of the fact that the petitioner gave a
statement under section 161, Code of Criminal
Procedure in connection with the investigation
arising out of FIR lodged on 30th December, 2005.
From the records of the case it appears the
36
petitioner gave 161 statement on 13th January, 2006.
In the writ petition there is a complete
suppression of the aforesaid fact. A statement
under Section 161 is certainly a material fact in a
police investigation in connection with an FIR. The
investigation is to find out the genuineness of
those very documents on the basis of which the writ
petition was moved. In that factual context, total
suppression in the writ petition of the fact that
the petitioner gave a 161 statement in that
investigation is, in our judgment, suppression of a
very material fact.
52. It is, therefore, clear that writ petition is
frivolous and is speculative in character. This
Court is of the opinion that the so called legal
questions on tapping of telephone cannot be gone
into on the basis of a petition which is so weak in
its foundation.
37
53. Courts have, over the centuries, frowned upon
litigants who, with intent to deceive and mislead
the courts, initiated proceedings without full
disclosure of facts. Courts held that such
litigants have come with "unclean hands" and are
not entitled to be heard on the merits of their
case.
54. In Dalglish v. Jarvie {2 Mac. & G. 231,238},
the Court, speaking through Lord Langdale and Rolfe
B., laid down:
"It is the duty of a party asking for an
injunction to bring under the notice of
the Court all facts material to the
determination of his right to that
injunction; and it is no excuse for him to
say that he was not aware of the
importance of any fact which he has
omitted to bring forward."
55. In Castelli v. Cook {1849 (7) Hare, 89,94},
Vice Chancellor Wigram, formulated the same
principles as follows:
"A plaintiff applying ex parte comes under
a contract with the Court that he will
state the whole case fully and fairly to
the Court. If he fails to do that, and the
38
Court finds, when the other party applies
to dissolve the injunction, that any
material fact has been suppressed or not
property brought forward, the plaintiff is
told that the Court will not decide on the
merits, and that, as has broken faith with
the Court, the injunction must go."
56. In the case of Republic of Peru v. Dreyfus
Brothers & Company {55 L.T. 802,803}, Justice Kay
reminded us of the same position by holding:
"...If there is an important misstatement,
speaking for myself, I have never
hesitated, and never shall hesitate until
the rule is altered, to discharge the
order at once, so as to impress upon all
persons who are suitors in this Court the
importance of dealing in good faith with
the Court when ex parte applications are
made."
57. In one of the most celebrated cases upholding
this principle, in the Court of Appeal in R. v.
Kensington Income Tax Commissioner {1917 (1) K.B.
486} Lord Justice Scrutton formulated as under:
"and it has been for many years the rule
of the Court, and one which it is of the
greatest importance to maintain, that when
an applicant comes to the Court to obtain
relief on an ex parte statement he should
make a full and fair disclosure of all the
material facts- facts, now law. He must
not misstate the law if he can help it -
39
the court is supposed to know the law. But
it knows nothing about the facts, and the
applicant must state fully and fairly the
facts, and the penalty by which the Court
enforces that obligation is that if it
finds out that the facts have been fully
and fairly stated to it, the Court will
set aside any action which it has taken on
the faith of the imperfect statement."
58. It is one of the fundamental principles of
jurisprudence that litigants must observe total
clarity and candour in their pleadings and
especially when it contains a prayer for
injunction. A prayer for injunction, which is an
equitable remedy, must be governed by principles of
`uberrima fide'.
59. The aforesaid requirement of coming to Court
with clean hands has been repeatedly reiterated by
this Court in a large number of cases. Some of
which may be noted, they are: 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 another v.
Government of Karnatka and another - JT 1991(3) SC
40
12: (1991) 3 SCC 261, S.P. Chengalvaraya Naidu
(Dead) by LRs. v. Jagannath (Dead) by LRs. and
others - JT 1993 (6) SC 331: (1994) 1 SCC 1, A.V.
Papayya Sastry and others v. Government of A.P. and
others - JT 2007 (4) SC 186: (2007) 4 SCC 221,
Prestige Lights Limited v. SBI - JT 2007(10) SC
218: (2007) 8 SCC 449, Sunil Poddar and others v.
Union Bank of India - JT 2008(1) SC 308: (2008) 2
SCC 326, K.D.Sharma v. SAIL and others - JT 2008
(8) SC 57: (2008) 12 SCC 481, G. Jayashree and
others v. Bhagwandas S. Patel and others - JT
2009(2) SC 71 : (2009) 3 SCC 141, Dalip Singh v.
State of U.P. and others - JT 2009 (15) SC 201:
(2010) 2 SCC 114.
60. In the last noted case of Dalip Singh (supra),
this Court has given this concept a new dimension
which has a far reaching effect. We, therefore,
repeat those principles here again:
"For many centuries Indian society
cherished two basic values of life i.e.
"satya"(truth) and "ahimsa (non-violence),
41
Mahavir, Gautam Budha and Mahatma Gandhi
guided the people to ingrain these values
in their daily life. Truth constituted an
integral part of the justice-delivery
system which was in vogue in the pre-
independence era and the people used to
feel proud to tell truth in the courts
irrespective of the consequences. However,
post-Independence period has seen drastic
changes in our value system. The
materialism has overshadowed the old ethos
and the quest for personal gain has become
so intense that those involved in
litigation do not hesitate to take shelter
of falsehood, misrepresentation and
suppression of facts in the court
proceedings.
In the last 40 years, a new creed of
litigants has cropped up. Those who belong
to this creed do not have any respect for
truth. They shamelessly resort to
falsehood and unethical means for
achieving their goals. In order to meet
the challenge posed by this new creed of
litigants, the courts have, from time to
time, evolved new rules and it is now well
established that a litigant, who attempts
to pollute the stream of justice or who
touches the pure fountain of justice with
tainted hands, is not entitled to any
relief, interim or final."
61. However, this Court is constrained to observe
that those principles are honoured more in breach
than in their observance.
42
62. Following these principles, this Court has no
hesitation in holding that the instant writ
petition is an attempt by the petitioner to mislead
the Court on the basis of frivolous allegations and
by suppression of material facts as pointed out and
discussed above.
63. In view of such incorrect presentation of
facts, this court had issued notice and also
subsequently passed the injunction order which is
still continuing.
64. This Court, therefore, dismisses the writ
petition and vacates the interim order and is not
called upon to decide the merits, if any, of the
petitioner's case. No case of tapping of telephone
has been made out against the statutory authorities
in view of the criminal case which is going on and
especially in view of the petitioner's stand that
he is satisfied with the investigation in that
case. The petitioner has withdrawn its case against
43
the respondent No.7. In that view of the matter
this Court makes it clear that the petitioner, if
so advised, may proceed against the service
provider, respondent No.8, before the appropriate
forum, in accordance with law. This Court, however,
makes it clear that it does not make any
observation on the merits of the case in the event
the petitioner initiates any proceeding against
respondent No.8.
65. This court wants to make one thing clear i.e.
perfunctory and slipshod affidavits which are not
consistent either with Order XIX Rule 3 of the CPC
or with Order XI Rules 5 and 13 of the Supreme Court
Rules should not be entertained by this Court.
66. In fact three Constitution Bench judgments of
this Court in Purushottam Jog Naik (supra), Barium
Chemicals Ltd. (supra) and A.K.K. Nambiar (supra)
and in several other judgments pointed out the
importance of filing affidavits following the
44
discipline of the provision in the Code and the said
rules.
67. These rules, reiterated by this Court time and
again, are aimed at protecting the Court against
frivolous litigation must not be diluted or
ignored. However, in practice they are frequently
flouted by the litigants and often ignored by the
Registry of this Court. The instant petition is an
illustration of the same. If the rules for
affirming affidavit according to Supreme Court were
followed, it would have been difficult for the
petitioner to file this petition and so much of
judicial time would have been saved. This case is
not isolated instance. There are innumerable cases
which have been filed with affidavits affirmed in a
slipshod manner.
68. This Court, therefore, directs that the
Registry must henceforth strictly scrutinize all
the affidavits, all petitions and applications and
45
will reject or note as defective all those which
are not consistent with the mandate of Order XIX
Rule 3 of the CPC and Order XI Rules 5 and 13 of
the Supreme Court Rules.
69. The writ petition is, therefore, dismissed
subject to the aforesaid liberty. All interim
orders are vacated.
70. Parties are left to bear their own costs.
.......................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New Delhi
May 11, 2011
46
