Supreme Court of India
AMAR SINGHversusUNION OF INDIA & ORS.
- Citation
- 2011 INSC 382
- Decided
- 11 May 2011
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
The writ petition is dismissed as frivolous, the interim injunction is vacated, and the petitioner is denied relief due to non‑compliance with affidavit rules and suppression of material facts.
Summary
Amar Singh filed a writ petition under Article 32 alleging that his telephone conversations were intercepted by the Government of India and the Delhi administration at the behest of a political party, and sought an injunction and damages. The petition relied on annexes that were later shown to be forged and were obtained from an accused in a related criminal case, a fact the petitioner failed to disclose. The Court held that the petitioner’s affidavit did not comply with Order XIX Rule 3 of the CPC or Order XI Rules 5 and 13 of the Supreme Court Rules, that he suppressed material facts and changed his stance, thereby lacking clean hands. No evidence of unlawful interception by the statutory authorities was found, and the petition was deemed frivolous. Consequently, the writ petition was dismissed, the interim injunction vacated, and the Registry was directed to scrutinise affidavits strictly.
Issues considered
- The affidavit filed in support of the writ petition complied with Order XIX Rule 3 of the CPC and Order XI Rules 5 and 13 of the Supreme Court Rules.
- Whether the petitioner suppressed material facts and therefore lacked clean hands to obtain equitable relief.
- Whether there is a prima facie case of illegal telephone interception under the Indian Telegraph Act.
- Whether the interim injunction restraining media publication should continue.
- The duty of the service provider to verify the authenticity of interception orders.
Legislation cited
- Code of Civil Procedure, 1908s. Order XIX Rule 3
- Code of Criminal Procedure, 1973s. Section 161
- Indian Penal Code, 1860s. Section 1208, s. Section 419, s. Section 420, s. Section 468, s. Section 471
- Indian Telegraph Act, 1885s. Section 20, s. Section 21, s. Section 25, s. Section 26, s. Section 5
- Supreme Court Rules, 1966s. Order XI Rule 13, s. Order XI Rule 5
Subjects
Article 32Right to privacyTelephone interceptionAffidavit complianceClean hands doctrineFrivolous litigationInterim injunctionService provider dutyIndian Telegraph ActProcedural law
Judgment
[2011] 6 S.C.R. 403
AMAR SINGH A
v.
UNION OF INDIA & ORS.
(Writ petition (Civil) No. 39 of 2006)
MAY 11, 2011
B
[G. S. SINGHVI AND ASHOK KUMAR GANGULY, JJ.)
CODE OF CIVIL PROCEDURE, 1908:
0. 19, r. 3 CPC and 0. 11 of Supreme Court Rules - c
Affidavits in support of petitions - Affirming of contents of the
petition in the affidavits - Disclosure of source of information
in an affidavit - Significance of - Explained - HELD: In the
instant writ petition, the petitioner approached the Court in a I
casual manner - The affidavit filed by him in support of the 0
petition, relying on which the Court issued notice, was not at
all modelled either on 0. 19 r. 3 CPC or 0. 11 of Supreme
Court Rules - If the rules of affirming the affida.vits were
followed, it would have been difficult for the petitioner to file
the petition and so much of judicial time would have been E;
saved - Perfunctory and slipshod affidavits which are not
consistent either with 0. 19, r. 3 CPC or with 0. 11, rr. 5 and
13 of Supreme Court Rules, should not be entertained by the
Court - Registry of the. Court.directed to scrutinize affidavits
in all petitions/applications strictly - Supreme Court Rules,
1966 - 0. 11 - Constitution of India, 1950 - Article 32.
F
PLEADINGS:
Inconsistent stands by writ petitioner - HELD: A litigant
who comes to Court and invokes its writ jurisdiction must G
come with clean hands - He cannot prevaricate and take
inconsistent positions - 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
403 H
404 SUPREME COURT REPORTS [2011] 6 S.C.R.
A prayer for injunction, which is an equitable remedy and must
be governed by principles of 'uberrima fide' - Equity -
Constitution of India, 1950 - Article 32.
CONSTITUTION OF /NOIA, 1950:
B Articles 32and 21 - Writ petition alleging infringement of
right of privacy of the petitioner stating that his telephone
conversations were being intercepted at the behest of the
Government- HELD: The petitioner invoked the extraordinary
writ jurisdiction of the Court without filing a proper affidavit -
C The nature of challenge in the petition is very serious as he
is alleging an attempt by the government of intercepting his
phone for extraneous considerations - It is, therefore,
imperative that before m<Jking such an a/legation the
petitioner should be careful, circumspeCt and should file a ·
D proper affidavit in support of the averments in the petition -
This is the primary duty of a petitioner, who invokes the extra-
ordinary jurisdiction of the Court under Article 32 - Code of
Civil Procedure, 1908 - Supreme Court Rules, 1966.
E Article 32 - Writ petition - Conduct of petitioner - Writ
petition filed alleging interception of his telephone
conversations by the Government agencies at the behest of
the political party in power - A/legations directly and indirectly
made in the writ petition against the said political party
F impleading it as one of the respondents -Interim injunction
passed by Court - Later, it was brought before the Court that
the order intercepting the phone calls were fabricated and a
criminal case had already been registered against accused
persons - Affidavit filed by the petitioner seeking to withdraw
the a/legations against the said political party - HELD: The
G main case of the petitioner is based on his a/legations against
the said political party - Petitioner has been shifting his stand
to suit his convenience - The instant writ petition is an attempt
by the petitioner to mislead the Court on the basis of frivolous
a/legations and by suppressing material facts - The so-called
H legal questions on tapping of telephone cannot be gone into
AMAR SINGH v. UNION OF INDIA & ORS. 405
on the basis of a petition which is so weak in its foundation - A
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 the petitioner's stand that he is satisfied with
the investigation in that case - Besides, the petitioner in fifing
the writ petition largely relied upon the information received B
from an accused in the criminal case.
Article 32 - Writ petition - Suppression of material fact
- Effect of - Writ petition alleging tapping of telephone of writ
petitioner-The communications on the basis of which the C
interception was alleged and which were received from the
accused and were made annexures in the writ petition, found
to be forged and criminal case initiated in which petitioner's
statement uls 161 CrPC was recorded - This fact not stated
in the writ petition - HELD: A statement uls 161 is certainly
material fact in a police investigation in connection with an D
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 as. 161 stater;nent
in that investigation is suppression of a very material faCt -A E
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 - 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 F
facts - Administration of justice - Conduct of litigant - Relief.
TELEGRAPH ACT, 1885:
s.5 - Interception of telephone conversations - Duty of
service provider - HELD: Though the service provider is to G
give assistance, as per request, to the law enforcement
agencies and has to act on an urgent basis and in public
interest, at the same time, he is equally duty bound to
immediately verify the authenticity of such communication if
on a reasonable reading of the same, it appears to any H
406 SUPREME COURT REPORTS [2011] 6 S.C.R.
A person, acting bona fide, that such communication, with
innumerable mistakes, falls clearly short of the tenor of a
genuine official communication - In the instant case, the
service provider has failed in discharging the said duty -
Central Government must, therefore, frame certain statutory
B guidelines in this regard to prevent interception of telephone
conversations on unauthorised communications -
Constitution of India, 1950 - Article 32.
The instant writ petition was filed by the petitioner
alleging that on a request made on 22.10.2005 from the
C office of the Joint Commissioner of Police (Crime), New
Delhi to Nodal Officer, Reliance lnfocom Ltd (respondent
no. 8), the conversations of the petitioner on phone were
intercepted; that the said request was subsequently
authorised by an order dated 9.11.2005 from the Principal
D Secretary (Home), Government of National Capital
Territory of Delhi; that the petitioner had learnt that the
government of India and the Government of NCT of Delhi
were pressurised by respondent no.7, namely, Indian
National Congress for intercepting, monitoring and
E recording his telephone conversations; that there were
similar cases of interception of phone conversations of
other people, including some of country's leading political
figures who were using the services provided by
respondent no. 8; that the action of the respondents
F amounted to infringing to his fundamental right of
privacy. He, therefore, prayed that the order for
interceptions be declared as unconstitutional and,
therefore, void; and that damages be awarded to him. It
was further prayed that all the service providers including
G respondent no. 8 along with others impleaded in the
petition be directed to disclose all relevant details with
respect to the directions of interception issued to them
by the authorities and the Court may lay down guidelines
on interception of phone conversations in addition to
H those laid down in the case of People's Union for Civil
AMAR SINGH v. UNION OF INDIA & ORS. 407
Liberties. The Union of India and the Government of NCT A
of Delhi denied the allegations. Their case was that the
orders dated 22.10.2005 and 9.11.2005 purporting to have
been issued by the authorities concerned were fabricated
with forged signatures and were not genuine; that a
criminal case in that respect had already been initiated B
and pursuant to the inquiry an FIR under various sections
of the Penal Code and the Telegraph Act had been
registered on 30.12.2005 and in its investigation the
petitioner's statement u/s 161 Cr.P.C. was also recorded;
that pursuant to the investigation charges were framed c
by the competent court againstfour accused including
one 'AS'.
Dismissing the writ petition, the Court
HELD: 1.1. The petitioner approached the Court in a D
casual manner. The affidavit filed by the petitioner in
support of his petition, and relying on which this Court
issued notice on 24.1.2006, is not at all modelled either
on 0.19, r.3 of the Code of Civil Procedure,1908 or 0.11
of the Supreme Court Rules, 1966. [Para 11) (421-G-H; E
422-A]
State of Bombay v. Purushottam Jog Naik, 1952 SCR
674 = AIR 1952 SC 317; Barium Chemicals Limited and
another v. Company Law Board and others, 1966 SCR 311 =
AIR 1967 SC 295; and A. K. K. Nambiar v. Union of India F
and another, 1970 (3) SCR 121 = AIR 1970 SC 652 - relied
on
Padmabati Dasi v. Rasik Lal Dhar ((1910) Indian Law
Reporter 37 Calcutta 259 -referred to. G
1.2. In the case of Virendra Kumar Sak/echa*, this
Court held that non-disclosure of source of information
in an affidavit will indicate that the petitioner did not come
forward with the source of information at the first H
408 SUPREME COURT REPORTS (2011] 6 S.C.R.
A opportunity. The purpose of disclosing such source is to
give the other side notice of the same and also to give it
an opportunity to test the veracity and genuineness of
the source of information. The absence of such
disclosure in the instant case, in the affidavit, which was
B filed along with the petition, raises a prima facie
impression that the writ petition was based on unreliable
facts. In case of Mis Sukhwinder Pal Bipan Kumar**, a three
Judge Bench of this Court in dealing with petitions under
Article 32 of the Constitution held that under 0.19, r.3 of
c 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, it cannot be treated as supported by an
affidavit as required by law. [Para 19-20) [425-G-H; 426-
D A-E]
*Virendra Kumar Saklecha v. Jagjiwan and others, 1972
(3) SCR 955 = (1972) 1 SCC 826; and **Mis Sukhwinder Pal
Bipan Kumar and others v. State of Punjab and others, 1982
( 2) SCR 31 = (1982) 1 SCC 31; and Smt. Savitramma v.
E Cicil Naronha and another, 1988 Suppl. SCR 561 = AIR
1988 sec 1987 - relied on.
1.3. In the instant case, the petitioner invoked the
extraordinary writ jurisdiction of this Court under Article
F 32, without filing a proper affidavit as required in terms
of 0.19, r.3 CPC. Besides, 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
G 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 should be careful,
circumspect and file a proper affidavit in support of his
averments in the petition. This is the primary duty of a
H petitioner who invokes the extraordinary jurisdiction of
AMAR SINGH v. UNION OF INDIA & ORS. 409
this Court under Article 32. It is very disturbing to find that A
on the basis of such improper and slipshod affidavit,
notice was issued on the petition, and subsequently a·
detailed interim order was passed on 22.1.2006, which
continued for about four years and is continuing on date.
[Para 24-27] [427-E-H; 428-A-F] B
1.4. It is made clear that, perfunctory and slipshod
affidavits which are not consistent either with 0. 19, r.3
CPC or with 0.11, rr. 5 and 13 of the Supreme Court Rules
should not be entertained by this Court. [Para 65] [441- C
D]
1.5. In fact three Constitution Bench judgments of
this Court in Purushottam Jog Naik, Barium Chemicals
Ltd. and A.K.K. Nambiar and judgments in several other
cases point out the importance of filing affidavits D
following the discipline of the provision in the Code and
the said rules. These rules, reiterated by this Court time
and again, are aimed at protecting the Court against
frivolous litigation and must not be diluted or ignored.
However, in practice they are frequently flouted by the E
litigants and often ignored by the Registry of this Court.
The instant petition is an illustration of the same. If the
rules for affirming the affidavit 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 F
case is not isolated instance. [Para 66-67] [441-D-G]
1.6. This Court, therefore, directs that the Registry
must strictly scrutinize all the affidavits, all petitions and
applications and will reject or note as defective all those
which are not consistent with the mandate of 0. 19, r.3 G
CPC and 0.11, r.5 and 13 of the Supreme Court Rules.
[Para 68] [441-H; 442-A]
2. When in the course of hearing, it was pointed out
by this Court on 2.2.2011 that the affidavit filed by the H
410 SUPREME COURT REPORTS [2011] 6 S.C.R.
A petitioner is perfunctory, defective and not in accordance
with the mandate of law, the petitioner filed a detailed
affidavit. It appears from the said affidavit that the main
documents on which the writ petition is based, are
Annexures A and B, the orders dated 22.10.2005 and
B 9.11.2005 respectively, which were obtained by the
petitioner from one 'AS', who was arrested in the criminal
case. It also appears that petitioner's averments In
paragraphs 2(v), 2(vii), 2(viil) and 2(ix) are based on
information derived from the same accused and that a
c part of the information relating to the averments in para
5 of the writ petition was also obtained from the same
accused. The petitioner, therefore, in filing the writ petition
under Article 32, largely relied on information received
from an accused in a criminal case. [Para 29) [428-H; 429-
D A-CJ
3.1. It is true that 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
E a heavy penalty on the service provider; and further that
the service provider has to act on an urgent basis and
has to act in public interest, at the same time, he is equally
duty bound to immediately verify the authenticity of such
communication if on a reasonable reading of the same,
F 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. In
the .instant case, any reasonable person or a reasonable
body of persons or an institution which is discharging
G public duty as a service provider, before acting on I
communications dated 22.10.2005 and 9.11.2005,
particularly, the 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,
H containing so many gross mistakes, one would
AMAR SINGH v. UNION OF INDIA & ORS. · 411
reasonably be suspicious of the authenticity of its text. A
Therefore, the explanation of the service provider is not
acceptable. 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
genuineness, but had not received any response or that B
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 c
the service provider and the consequential effect it has
on the fundamental right of the person concerned. 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 0
to observe that in discharging the said duty, respondent
No. 8, the service provider, has failed. [Para 33, 37 to 40)
[431-G-H; 432-A; F-H; 433-C-G]
3.2. The Central Government must, therefore, frame
certain statutory guidelines in this regard to prevent E
interception of telephone conversation on unauthorised
communication, as has been done in this case. [Para 41)
[434-B]
4.1. A litigant who comes to Court and invokes its writ F
jurisdiction must come with clean hands. He cannot
prevaricate and take inconsistent positions. 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. G
A prayer for injunction, which is an equitable remedy,
must be governed by principles of 'uberrima tides'. 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) H
412 SUPREME COURT REPORTS [2011) 6 S.C.R.
A and 2(12). In paras 2(12) and 5 of the writ petition, there
are indirect references to the said respondent. In the
various grounds taken in support of the petition,
allegations have been specifically made against
respondent no. 7. Even though in the order of this Court
B dated 27 .2.2006, 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
c withdrawn by the petitioner. [Para 42, 43, 50 and 58] [434-
C-E; 436-G-H;439-B]
Hari Narain v. Badri Das - 1964 SCR 203 =AIR 1963
SC 1558, Welcome Hotel and others v. State of A.P. and
others - 1983 (3) SCR 674 = (1983) 4 SCC 575, G.
D Narayanaswamy Reddy (Dead) by LRs. and another v.
Government of Karnatka and anot.'1er- 1991 ( 2 ) SCR 563 =
JT 1991(3) SC 12: (1991) 3 SCC 261, S.P. Chenga/varaya
Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and others
- 1993 ( 3 ) Suppl. SCR 422 = JT 1993 (6) SC 331: (1994)
E 1 SCC 1, A. V. Papayya Sastry and others v. Government of
A.P. and others- 2007 (3) SCR 603 = JT 2007 (4) SC 186:
(2007) 4 SCC 221, Prestige Lights Limited v. SB/ - 2007 (9)
SCR 112 = JT 2007(10) SC 218: (2007) 8 sec 449, Sunil
Poddar and others v. Union Bank of India - 2008 (1)
F SCR 261 = JT 2008(1) SC 308: (2008) 2 sec 326,
KO.Sharma v. SAIL and others - 2008 (10) SCR 454 = JT
2008 (8) SC 57: (2008) 12 SCC 481, G. Jayashree and
others v. Bhagwandas S. Patel and others - 2008 (17 )
SCR 1454 = JT 2009(2) SC 71 : (2009) 3 sec 141, Dalip
G Singh v. State of U.P. and others - 2009 (16) SCR 111 =
JT 2009 (15) sc 201: (2010) 2 sec 114 - Relied on
Da/g/ish v. Jarvie 2 Mac. & G. 231, 238; Castelli v. Cook
1849 (7) Hare, 89,94; Republic of Peru v. Dreyfus Brothers
& Company 55 L.T. 802,803; and R. v. Kensington Income
H Tax Commissioner 1917 (1) K.B. 486 - referred to.
AMAR SINGH v. UNION OF INDIA & ORS. 413
4.2. However, the affidavit of the petitioner filed in A
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 respondent no. 7. The main case
of the petitioner is based on his allegations against B
respondent no.7. The burden of the song in the writ
petition is that respondent no. 7, acting out of a political
vendetta and exercising its influence on Delhi Police
administration caused interception of the telephone lines
of various political leaders of the opposition including c
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 0
lines of the petitioner were tapped. The petitioner also
makes a statement that the accused 'AS' edited and
tampered some of the conversations of the petitioner.
Further, when the writ petitioner filed the petition on
21.1.2006, he was aware that an investigation that was
going on by the Delhi Police in connection of the forgery E
of Annexures A and B. Even then he filed the petition with
those annexures and without a proper affidavit. 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 F
'AS', and the main annexures to the petition, namely,
Annexures A and B were received by him from the same
accused 'AS'. Paragraphs 2 (2), 2 (3), 2 (4) and 2 (6) are
based on the information received from 'AS'. But he did
not say all these in his affidavit when he filed the writ G
petition on 21.1.2006.ln 2006, the gravamen of the
petitioner's grievances was against respondent no. 7,
and the basis of his petition was the information that he
derived from the accused 'AS'. On the basis of such a
H
414 SUPREME COURT REPORTS [2011] 6 S.C.R.
A petition, he invoked the jurisdiction of this Court and an
interim order was issued in his favour, which is still
continuing. Now when the matter has come up for
contested hearing, he suddenly withdraws his allegations
against respondent no. 7 and feels satisfied with the
B investigation of the Police in connection with the case of
forgery and also states that the same 'AS' "edited and
tampered certain conversations of the petitioner". Thus,
the petitioner has been shifting his stand to suit his
convenience. [Para 46-49) [435-E-H; 436-A-C-E]
c 4.3. Besides, in the writ petition which was filed on
21.1.2006, there is no mention of the fact that the
petitioner gave a statement u/s. 161, Code of Criminal
Procedure, 1973 in connection with the investigation
arising out of FIR lodged on 30.12.2005. From the records
D of the case it appears that the petitioner gave s.161
statements on 13.1.2006. In the writ petition there is a
complete suppression of the fact. A statement u/s. 161 is
certainly a material fact in a police investigation in
connection with an FIR. The investigation is to find out
E 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 s.161 statement in that
investigation is, suppression of a very material fact. [Para
F 51) [437-A-C; 435-E-H; 436-A-F]
4.4. 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
G entitled to any relief, interim or final. 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. In view of such incorrect
presentation of facts, this Court had issued notice and
H
AMAR SINGH v. UNION OF INDIA & ORS. 415
also subsequently passed. the injunction order which is A
still continuing. [Para 60, 61 to 63] [440-D-G]
Dalip Singh V; State of U.P. and others - 2009 (16)
SCR 111 =JT 2009 (15) SC 201: (2010) 2 SCC 114 - relied
on B
4.5. 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. No case of tapping C
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 the respondent No.7. In D
that view of the matter, it is made clear that the petitioner,
if so advised, may proceed against the service provider,
respondent No.8, before the appropriate forum, in
accordance with law, and this Court does not make any
observation on the merits of the case in the event the E
petitioner initiates any proceeding against respondent
No.8. [Para 52 and 64] [437-D-E; 441-A-C]
People's Union for Civil Liberties (PUCL) v. Union of India
and Another 1996 (10) Suppl. SCR 321 = (1997) 1 SCC
F
301-Cited.
Case Law Reference:
1996 (10) Suppl. SCR 321 cited Para 1
(1910) Indian Law Reporter referred to Para 15 G
37 Calcutta 259
1952 SCR 674 Relied on Para 16
1966 SCR311 relied on Para 17
H
416 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 1970 (3) SCR 121 relied on Para 18
1972 (3) SCR 955 relied on Para 19
1982 (2) SCR 31 relied on Para 20
1988 Suppl. SCR 561 relied on Para 21
B
2 Mac. & G. 231,238 referred to Para 54
1849 (7) Hare, 89, 94 referred to Para 55
55 L.T. 802,803 referred to Para 56
c 1917 (1) K.B. 486 referred to Para 57
1964 SCR 203 relied on Para 59
1983 (3) SCR 67 4 relied on Para 59
D 1991 (2) SCR 563 relied on Para 59
1993 (3) Suppl. SCR 422 relied on Para 59
2007 (3) SCR 603 relied on Para 59
E 2007 (9) SCR 112 relied on Para 59
2008 (1) SCR 261 relied on Para 59
2008 (10) SCR 454 relied on Para 59
2008 (17) SCR 1454 relied on Para 59
F
2009 (16) SCR 111 relied on Para 59
CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
G Writ Petition (Civil) No.39 of 2006.
Indira Jaising, ASG, Dr. A.M. Singhvi, Pravin Parekh, J.S.
Attri, Harish Chander, C.S. Vaidyanathan, Anoop G.
H
AMAR SINGH v. UNION OF INDIA & ORS. 417
Choudhari, Ram Jethmalani, Ajay Kumar Jha, Pradeep Rai, A
Shashank Kunwar, Shweta Sharma, (for Parekh & Co.), Sonam
Anand, Aditya Sharma, Mukesh Verma, A.K. Sharma, Supriya
. Jain, Manjul Bajpai, Ankur Saigal, Bina Gupta, Abhay Anand
Jena, Rishi Malhotra, Mrinmayee Sahu, Equity Lex Associates,
Nikhil Nayyar, TVS Raghavendra Sreyas, Swapnil Verma, B
Prashant Bhushan, Pranav Sachdeva, Manali Singhal, Santosh
Sachin, Abhijat P. Medh, Vivek Kishore, Ruchi Gour Narula,
S.R. Setia, Vivek Verma, Sushma Suri, Gyan Shyam Vasisht,
Rajiv Mehta, Navin Chawla Gaurav Kaushik, E.C. Agrawala,
Sunita Hazarika, Nidhi, Madhu Sikri Saket Sikri for the c
appearing parties.
The Judgment of the Court was delivered by
GANGULY, J. 1. In this writ petition, filed under Article 32,
the petitioner is seeking to protect his fundamental right to D
privacy under Article 21 of the Constitution of\ India. The
petitioner's case is that on the basis of his inforr~ation 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 E
petitioner's conversation on phone, monitoring them and
recording them. The petitioner had been availing of the
telephone services of Mis Reliance lnfocom Ltd., impleaded
herein as respondent no.8. He further referred to similar cases
of interception of phone conversations of other people, including F
some of the country's leading political figures, who were using
services provided by M/s Reliance lnfocom 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 G
directed only towards those who are not aligned with the
political party in power at the Centre. He submitted that this
infringement of his .funefamental rights was symptomatic of the
erosion of the democratic values in the country. He prayed that
the Court may declare the orders for interception H
418 SUPREME COURT REPORTS [2011] 6 S.C.R.
A unconstitutional and therefore void, and initiate a judicial inquiry
into the issuance and execution of these orders, and prayed
that damages be awarded to him. It was further prayed that all
the telecom service providers including M/s. Reliance lnfocom,
along with all the others who had been impleaded, be directed
B 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 Civl1 Liberties (PUCL) v. Union of India
C 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 lnfocom Ltd., Delhi, for the interception of all
D the calls made from or to the telephone numbers of the
petitioner. This request was subsequently followed by an order
dated 9th November, 2005, from the Principal Secretary
(Home), Government of National Capital Territory of Delhi,
authorising the said request. The case of respondent no. 8 is
E 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
F 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.
G
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
H
AMAR SINGH v. UNION OF INDIA & ORS. 419
[ASHOK KUMAR GANGULY, J.]
submissions, this Court directed the electronic and the print A
media not to publish any part of the said conversations, vide
Court's order dated 27th February, 2006.
4. Various applications for intervention were preferred,
especially by civil society groups. These applications were 8
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 C
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 D
the Principal Secretary (Home) in the Government of National
Capital Territory of Delhi, is authorised 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 E
Act, 1885 (the said Act). Froin 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 F
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 G
Police, Delhi. It was clarified that no Joint Commissioner of
Police or police officer of any other rank can directly request
for an 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 H
420 SUPREME COURT REPORTS [2011] 6 S.C.R.
A (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
8
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.
c (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
D Secretary (Home)/respondent no. 4 from any Police Officer
or for that matter any agency, governmental I police or
otherwise.
(vi) In view of this, the order bearinp no. F. 5/1462/2004 -
HG dated 9.11.2005, a copy of which is appended to the
E
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.
F
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
G 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
H privacy rights thereon. Reference was also made to
AMAR SINGH v. UNION OF INDIA & ORS. 421
[ASHOK KUMAR GANGULY, J.]
technological measures to avoid unauthorised interceptions and A
the changed security scenario.
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
8
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.
'
c
10. Consequent on the same report, an FIR No.152/2005.
had been lodged under Sections 419, 420 468, 471 and 1208
of l.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 DI
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
investigation was filed before the competent Court on 15th E
February, 2006 and the charges were framed on 6th February,
2010. Four accused persons in the said case were charged
under Section 1208 read with Sections 420 and 471 of 1.P.C.
and Section 25 of the Indian Telegraph Act. In addition,
Bhupender Singh had been charged under Section 201, l.P.C. F
and Anurag Singh was charged under Section 419, l.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 G
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
H
422 SUPREME COURT REPORTS [2011] 6 S.C.R.
A Procedure, or Order XI of the Supreme Court Rules, 1966. The
relevant portion of the petitioner's affidavit runs as under:
"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
B
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
c 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
D 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:
E
"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
F 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 replica of Order XIX
G 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
H
AMAR SINGH v. UNION OF INDIA & ORS. 423
[ASHOK KUMAR GANGULY, J.]
may be admitted, provided that the grounds thereof are A
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 B
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 C
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 D
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 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 E
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 F
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 G
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 H
424 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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 of this type might well in a given case
lead to a rejection of the affidavit. Verification should
B 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
c 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
D 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,
E 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
F 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 its contents, its time or to which authority it
G
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
H
AMAR SINGH v. UNION OF INDIA & ORS. 425
[ASHOK KUMAR GANGULY, J.]
chance to verify it and make an effective answer. In such A
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 0. XIX, R. 3 of the Civil Procedure
Code and that where an averment is not based on personal B
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." C
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. D
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 E
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 F
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 G
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- H
426 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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
B of information. The same 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,
C raises a prima facie impression that the writ petition was based
on unreliable facts.
20. In case of Mis 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
D 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
E affidavit as required by law. (See para 12 page 38)
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
F 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
G 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
H 5 and 13 of Order XI of the Supreme Court Rules is to
AMAR SINGH v. UNION OF INDIA & ORS. 427
[ASHOK KUMAR GANGULY, J.]
enable the Court to find out as to whether it would be safe A
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.. . ." .B
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 be disclosed in the affidavit. An C
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 D
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 E
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 F
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 should be
careful, circumspect and file a proper affidavit in support of his
averment in the petition. G
25. In our judgment, this is the primary duty of a petitioner
who invokes the extraordinary jurisdiction of this Court under
Article 32.
H
428 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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:
B
"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
c 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
D Mr. Rohtagi being made."
Having regard to the facts and circumstances, we direct
that ele~tronic and print media would not publish/display
the unauthorisedly and illegally recorded telephone tapped
E 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.
F 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
G 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.
29. It appears from the detailed affidavit filed by the
H
AMAR SINGH v. UNION OF INDIA & ORS. 429
[ASHOK KUMAR GANGULY, J.]
petitioner, pursuant to the order of this Court dated 2nd A
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 B
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 c
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, New Delhi is of some
relevance in connection with the part played by respondent D
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 E
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 F
Secretary(Home) or any other officer of the Home
Department of G,overnment 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 G
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 1 issued by the Deputy
Secretary(Home) which has 1peen annexed as Annexure
H
430 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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 a letter mentioning the year 2004
B
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
c 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 ·
D 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.
E
(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.
F
(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
G is itself wrong and fake as the dispatch 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.
H
AMAR SINGH v. UNION OF INDIA & ORS. 431
[ASHOK KUMAR GANGULY, J.]
3g. Apart from the various discrepancies, the deponent A
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" 8
(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". c
(iv) On the eighth line the word "the" has been mis-
spelt as "te". The word Rules" has been mis-spelt
as "Ruis" and word "exercise" has been mis-spelt
as "exercies".
D
(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"
E
(vi) In the endorsement forwarding the copies the
purported order of 9th November, 2005 the word
"Additional Commissioner" has been mis-spelt as
"Addi commissioner" and on the following line
words "Chairman" and "Committee" have been F
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 G
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 9rder like the H
432 SUPREME COURT REPORTS [2011) 6 S.C.R.
A 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.
34. A query in this respect, made by the Court, was
8
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
C 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
D 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
E could send back the written request pointing out the mistakes
contained therein.
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
F 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
G 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
H the author of the document. This Court is of the opinion that the
AMAR SINGH v. UNION OF INDIA & ORS. 433
(ASHOK KUMAR GANGULY, J.]
service provider has to act as a responsible agency and cannot A
act on any communication. Sanctity and regularity in official
communication in such matters must be maintained especially
·when the 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 B
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 C
verify the authenticity of such communication if on a reasonable
reading of the same, it appears to any person, acting bona fide,
that such communi.cation, with innumerable mistakes, falls
clearly short of the tenor of a genuine official communication.
Therefore, the explanation of the service provider is not D
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
genuineness, but had not received any response or that the
authority had accepted the communication as genuine, the E
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. F
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 G
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 must immediately act upon such written request but H
434 SUPREME COURT REPORTS - - [2011] 6 S.C.R.
A 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
B ·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
C 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 spe.cifically made
· against the 7th respondent. ··
D
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,
E 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
F paragraphs of that affidavit are set out:
·1, 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. -
G 1
1. That I am the petitioner in the above matter and a111
conversant with the facts and circumstances of the ca~e
and as such competent to swear this affidavit. The
Petitioner craves leave of this Hon'ble Court to place t~e
I .
H
AMAR SINGH v. UNION OF INDIA & ORS. ·' 435
[ASHOK KUMAR GANGULY, J.]
following additional facts on record before this Hon'ble A
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 B
tapped at the behest of politieal opponents. However, later
the Delhi Police investigated the mater and tile 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 C
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 D
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. E
46. The said affidavit of the petitioner filed in February,
2011, completely knbcks 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 F
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 Delhi Police
administration caused interception of the telephone lines of
various political leaders of the opposition including that of the G
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 H
436 SUPREME CqURT REPO~TS . j2011) 6 S.C.R.
. ;, ,_.:.
A statement that the.said Anurag,Singh edited .and tampered
some of the conversations of the petitioner. It is very interesting
to note that w.hen 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
B 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. But .he did not
say all these in his affidavit when he filed the writ petition on
c 21st January 2006. , .
47. 1tmay be ~oted 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
D 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
E 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.
I :.•-
49. Now when the matter has come up for contested
F 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".
G
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·- ineonsistent
. -' -
positions:
_·, ,_
· ·
H
AMAR SINGH v. UNION OF INDIA & ORS. 437
[ASHOK KUMAR GANGULY, J.]
51. Apart from the aforesaid, in the writ petition which was A
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 petitioner gave 161 statement on s
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 c
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 D
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.
E
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. F
54. In Da/g/ish v. Jarvie {2 Mac. & G. 231,238}, 1the 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 G·
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."
H
438 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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 Court finds, when
B
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."
c
56. In the case of Republic of Peru v. Dreyfus Brothers &
Company {55 LT. 802,803}, Justice Kay reminded us of the
same position by holding:
D "... 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 fdth with the Court when
ex pa rte applications are made."
E
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:
F
"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
G disclosure of all the material facts- facts, now law. He must
not misstate the law if he can help it - 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
H
AMAR SINGH v. UNION OF INDIA & ORS. · 439
[ASHOK KUMAR GANGULY, J.]
to it, the Court will set aside any action which it has taken A
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. 8
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: C
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 Kamatka and another - JT 1991 (3) SC 12:
(1991) 3 SCC 261, S.P. Chengalvaraya Naidu (Dead) by LRs. D
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. SB/ ~ JT 2007(10) SC .
218: (2007) 8 SCC 449, Suni/ Poddar and others v. Union E
Bank of India - JT 2008(1) SC 308: (2008) 2 SCC 326,
K.D.Sharrna 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: F
(2010) 2 sec 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: G
"For mJny centuries Indian society cherished two basic
values of life i.e. "satya"(truth) and "ahimsa (non-violence),
Mahavir, Gautam Budha and Mahatma Gandhi guided the
people to ingrain these values in their daily life. Truth H
440 SUPREME COURT REPORTS [2011] 6 S.C.R.
A 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
B 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.
c 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
D 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."
E
61. However, this Court is constrained to observe that
those principles are honoured more in breach than in their
observance.
F 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.
G 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
H vacates the interim order and is not called upon to decide the
AMAR SINGH v. UNION OF INDIA & ORS. 441
[ASHOK KUMAR GANGULY, J.]
merits, if any, of the petitioner's case. No case of tapping of A
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 the respondent No.7. In that view of the matter this Court 8
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 C
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 orwith Order XI Rules 5 and 13 of the
'-
Supreme Court Rules should not be entertained by this Court. D
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 . E
following the 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 F
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 G
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 H
442 SUPREME COURT REPORTS [2011) 6 S.C.R.
A henceforth strictly scrutinize all the affidavits, all petitions and
applications and 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
8 aforesaid liberty. All interim orders are vacated.
70. Parties are left to bear their own costs.
R.P. Writ Petition dismissed.
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