TEAM - 61

RGNUL INTRA MOOT COMPETITION - 2013

IN THE HONBLE HIGH COURT

W.P. NO: /2013
[UNDER ART. 226 OF THE CONSTITUTION OF INDIA, 1950]

TYRION BHUSHAN

V.

CENTRAL BUREAU OF

INVESTIGATION
-PETITIONER-

-RESPONDENT-

MEMORIAL DRAWN AND SUBMITTED ON BEHALF OF THE PETITIONER

TYRION BHUSHAN

TABLE OF CONTENTS

INDEX OF AUTHORITIES
LIST OF ABBREVIATIONS.
STATEMENT OF JURISDICTION............................................................................................. IX
STATEMENT OF FACTS ............................................................................................................ X
ISSUES RAISED .........................................................................................................................
XII
SUMMARY OF ARGUMENTS
BODY OF ARGUMENTS ............................................................................................................. 1
CONTENTION 1 .......................................................................................................................... 1
WHETHER SECTION 6A WAS APPLICABLE TO MR. BHUSHAN INCLUDING WHETHER MR. BHUSHAN,
AN IAS OFFICER OF THE PUNJAB CADRE, WAS AN EMPLOYEE OF THE CENTRAL GOVERNMET?

........................................................................................................................................................... 1

1.1. THE PETITIONER WAS AN EMPPLOYEE OF THE CENTRAL GOVERNMENT ..................................1

1.2. SECTION 6A OF THE DSPE ACT, 1946 IS APPLICABLE TO THE PETITIONER

CONTENTION II ......................................................................................................................... 1
WHETHER
..

MR. BHUSHANS ARREST COULD BE CLASSIFIED AS AN ARREST ON THE SPOT?

ii

2.1.THE

ARREST OF THE PETITIONER CANNOT BE CLASSIFIED AS ARREST ON THE SPOT UNDER

THEPURVIEW OF MEANING ESTABLISHED BY THE HONBLE COURTS..

2.2. THE

ESSENTIAL INGREDIENTS FOR APPLICABILITY OF SECTION 13(1)(d) OF THE PREVENTION OF

CORRUPTION ACT, 1988...........................................

CONTENTION III........................................................................................................................ 1
WHETHER

THE TELEPHONE TAP ON MR. BHUSHAN WAS VALID, AND WHETHER THE SAME WAS

VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PRIVACY?.................................................................

3.1. NON COMPLIANCE OF CENTRAL ELEMENTS OF SECTION 5(2) OF THE INDIAN TELEGRAPH ACT, 1885
RENDERED PHONE TAP INVALID.

3.2. ARBITRARINESS

IN THE EXERCISE OF POWER DUE TO NON COMPLIANCE OF PROCEDURE

ESTABLISHED UNDER 419-A OF THE INDIAN TELEGRAPH RULES, 1951.

3.3. INVALID

TELEPHONE TAP ON PETITIONER WAS IN VIOLATION OF HIS CONSTITUTIONAL RIGHT

TO PRIVACY

3.3.1 RIGHT TO PRIVACY IS IMPLICIT IN RIGHT TO LIFE..

3.3.2 TELEPHONE

TAPPING INFRINGED ARTICLE 21DUE TO NON COMPLIANCE OF PROCEDURE

ESTABLISHED BY LAW UNDER SECTION 5(2) OF

THE INDIAN TELEGRAPH ACT AND 419-A UNDER THE

INDIAN TELEGRAPH RULES, 1951

PRAYER FOR RELIEF ............................................................................................................... XI

iii

iv

INDEX OF AUTHORITIES

STATUTES REFERRED

1. THE CONSTITUTION OF INDIA, 1950

2. THE INDIAN TELEGRAPH ACT, 1885
3. THE INDIAN TELEGRAPH RULES, 1951
4. THE PREVENTION OF CORRUPTION ACT, 1988
5. THE DELHI STATE POLICE ESTABLISHMENT ACT, 1946
6. THE INDIAN EVIDENCE ACT, 1872
7. THE ALL INDIA SERVICE ACT, 1951
8. THE FUNDAMENTAL RULES, THE ALL INDIA SERVICE ACT, 1951
9. INDIAN ADMINISTRATIVE SERVICE (CADRE) RULES, 1954

BOOKS REFERRED

1 . MAJUMADAR, P.K. SERVICE LAWS IN INDIA, ORIENT PUBLISHING COMPANY (2007)

2. ZAIDI, HASAN. MOBILE PHONE FORENSICS AND ELECTRONIC SURVEILLANCE,
ALLAHABAD LAW AGENCY (2010)
3. JAIN, M.P. INDIAN CONSTITUTIONAL LAW (VOL. 1), LEXIS NEXIS 2010
4. BASU, DD. INTRODUCTION TO THE CONSTITUTION OF INDIA, LEXIS NEXIS 2009

5. DE, D.J. NEW DIMENSIONS OF CONSTITUTIONAL LAW

6. MATHUR, A.P. COMMENTARIES ON THE PREVENTION OF CORRUPTION ACT, EASTERN CO.
v

BOOKS (1963)

III

7. KAGZI,M.G. THE INDIAN ADMINISTRATIVE LAW, METROPOLITAN BOOKS(1969)

CASES REFERRED

1. UNION OF INDIA & ORS. V RAJIV YADAV IAS AND ORS AIR 1994 SC 54
2. R.R. KISHORE V CBI AIR 2006 DELHC 1571
3. SHAILENDRANATH BOSE V STATE OF BIHAR AIR 1968 SC 63
4. A.S. KANNAN V STATE BY INSPECTOR AIR 2011 MADHC 687
5. STATE OF KERALA & ANR. V C.P. RIO AIR 2011 SC 678
6. RANJIBHAI KAVABHAI PATEL V STATE OF GUJARAT AIR 2011 SC 1582
7. SMT. MEENA W/O BALWANT HEMKE V STATE OF MAHARASHTRA
8. PUCL V UNION OF INDIA AIR 1997 SC 568
9. HUKUM CHAND SHYAM LAL V UNION OF INDIA AIR 1976 SC 789
10. STATE NCT OF DELHI V NAVJOT SANDHU 2005(11) SCC 600
11. K.L.D. NAGASREE V GOVT OF INDIA AIR 2007 AP 102
12. KHARAK SINGH V STATE OF UP AIR 1963 SC 1295
13. UNNIKRISHNAN V STATE OF ANDHRA PRADESH AIR 1993 SC 2178
14. R. RAJGOPALA V STATE OF TAMIL NADU AIR 1995 SC 264
15. M.NAGARAJA V UNION OF INDIA AIR 2007 SC 71
16. MANEKA GANDHU V UNION OF INDIA AIR 1978 SC 597

MISCELLANEOUS DOCUMENTS

1. DEPARTMENT OF PERSONNEL & TRAINING ORDER NO. 13012/1/98-ESTT. (D) DATED

20.04.1998 ISSUED BY THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS.

vi

LIST OF ABBREVIATIONS

1. &And
2. AIR...All India Reporter
3. AnrAnother
4. Art...Article
5. CBI..Central Bureau of Investigation
6. Ed...Edition
7. GovtGovernment
8. Honble..Honorable
9. HC....High Court
10. IAS.Indian Administrative Service
11. LtdLimited
12. NGO..Non Governmental Organization
13. Ors..Others
14. SC..Supreme Court
15. SCC.Supreme Court Cases
16. Sec..Section
vii

17. UID..Unique Identification

18. UOIUnion of India
19. v...Versus
20. Vol.Volume

viii

STATEMENT OF JURISDICTION

Before the Honble High Court of Punjab and Haryana, this petition is filed for the quashing of the
proceedings pending before the Ld. Spl. Judge, under Article 226 and 227 of the Indian
Constitution r/w section 482 of Cr.PC, under the writ of nature of Prohibition, against the illegal
investigation violating the statutory provisions.

STATEMENT OF FACTS

1.

Tyrion Bhushan, an Indian Administrative Service office of the 1985 batch of the
Punjab cadre was posted as the Principal Secretary, Department of Hostels in
Universities.

2.

During this period various allegations surfaced pertaining to corruption on a large scale
in awarding tenders in various universities across Punjab and it was observed that a
single conglomerate, M/s Berry and Purohit had been appointed as the contractor for all
the toilets across all universities in Punjab.

3.

On 02.01.2013, Veena Lannister, Managing Director of M/s Showerwell, a well-known

and reputed manufacturer of Sanitary ware, had a meeting with Mr. Tyrion Bhushan
who promised to make M/s Showerwell the lone equipment supplier across not just all
hostels in Punjab, but also put in a good word for the Company in the Ministry of Urban
Development, to ensure that the Company gets a large number of contracts.

4.

In return however, Tyrion sought an amount of Rupees Fifty Lakh within a period of
two days, Rupees One Crore for the first six months after award of the first contract,
and a monthly salary of Rupees Two Lakh, by way of a Demand Draft in the name of
his wifes Company M/s Freehold thereafter.

5.

Distraught at the demands of Tyrion, Veena approached Mr. Vishnu Snow, a class-mate
of hers from school who was a senior officer with the CBI in Delhi. Vishnu decided to
investigate further and not register a case immediately. With 3 hours of getting
x

intimation by Veena Lannister, it was decided by Vishnu to lay a wiretap on Mr.

Tyrion.

6.

Accordingly, Vishnu, after having completed the necessary formalities under the
Telegraph Act and rules there under, within a period of one day, proceeded to tap Mr.
Bhushans phone. It has been observed that the letter authorizing the phone tap had
been addressed to Vishnu Snow directly from the Home Ministry.

7.

During the course of the said phone taps, Vishnu had gathered evidence as to requests
being made by Tyrion to third parties also for bribes. Vishnu thereafter asked Veena to
telephone Tyrion and ask him to meet her at 8pm that night at 4S Restaurant in Defense
Colony, Patiala.

8.

A trap was accordingly laid at 4S restaurant with marked notes, public witnesses and
members of the CBI present at the spot. Veena reached the restaurant at the appointed
time, and after sharing a polite drink with Tyrion, proceeded to hand over the bag
containing the marked notes to Tyrion.

9.

Tyrion immediately refused to accept the package, indicating instead that it be kept
under the commode in the toilet of the restaurant. Veena insisted that Tyrion take the
package immediately. She then proceeded to throw the package at Tyrion, and made a
signal to the waiting CBI Officers, including Mr. Snow.
xi

10.

Tyrion Bhushan was arrested immediately by the CBI officers, and the bag was
recovered from him. Mr. Bhushan pleaded a set-up by Veena Lannister, but the same
was to no avail, and was remanded to Police custody for a period of 6 days, and to
judicial custody for a period of 14 days upon expiry of the said 6 days of Police
Custody.

11.

Proceedings were initiated against Mr. Bhushan before the Special Judge, CBI, and a
Charge sheet was filed within a period of 9 days of his arrest. As per the Charge sheet,
the CBI stated that Mr. Bhushan was guilty of offences under Section 13(1)(d) r/w
Section 13(2) of the PC Act, 1988.

xii

ISSUES RAISED

THE FOLLOWING ISSUES HAVE BEEN RAISED FOR ADJUDICATION BEFORE THE HONBLE HIGH
COURT

1. WHETHER SECTION 6A WAS APPLICABLE TO MR. BHUSHAN INCLUDING WHETHER MR.

BHUSHAN,

AN

IAS OFFICER

OF THE

PUNJAB CADRE,

WAS AN EMPLOYEE OF THE

CENTRAL GOVERNMENT?
2. WHETHER MR. BHUSHANS

ARREST COULD BE CLASSIFIED AS AN

ARREST

ON THE

SPOT?

3. WHETHER

THE TELEPHONE TAP ON

MR. BHUSHAN

WAS VALID, AND WHETHER THE

SAME WAS IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PRIVACY?

13

14

SUMMARY OF ARGUMENTS

1. WHETHER SECTION 6A

WAS APPLICABLE TO

MR. BHUSHAN

INCLUDING WHETHER

MR. BHUSHAN, AN IAS OFFICER OF THE PUNJAB CADRE, WAS AN EMPLOYEE OF THE
CENTRAL GOVERNMENT?

As provided by Article 310 and 311(1), the officials of the Indian Administrative
Services can be appointed and removed from their office only by the President of India. It
is thus established that all officers employed under the Indian Administrative Services are
employees of the Central government who are alloted Cadres by the Central government
as per the Indian Administrative Service (Cadre Rules), 1954 [the Cadre Rules]. The
petioner thus an IAS officer of the 1985 batch of the Punjab Cadre is an employee of the
Central Government.
As per the requirments of Section 6A(1) of the DSPE Act 1946, the petitioner is holding a
post above that of a joint secretary i.e. Principal Secretary. Also there has been no arrest
on spot in the present case and thus Section 6A of the DSPE Act 1946 is applicable to the
petitioner and he is entitled to protection under the said Act.

2. WHETHER MR. BHUSHANS

ARREST COULD BE CLASSIFIED AS AN

ARREST

ON THE

SPOT?

Section 6A(2) provides that no approval from the Central Government shall be necessary
for cases involving arrest of a person on the spot on the charge of accepting or attempting to
accept any gratification other than legal remuneration referred to in clause (c) of
the Explanation to section 7 of the Prevention of Corruption Act, 1988. In R.R Kishore v
CBI, it was held that the CBI would invoke the said section only in cases of a
chance arrest of a public servant on the spot while accepting or attempting to accept any
MEMORIAL for PETITIONER
XV

gratification without any prior information about the same or on account of non-availability
of time for obtaining previous approval. In the instant case ,the senior officer of CBI acted
on the call received in informal capacity in an unprofessional and indiligent manner by not
seeking any approval for initiating the investigation against the petitioner for no justifiable
cause. After the complaint was received he had ample time to carry the investigation
procedure in accoradance with the due procedure of law rather he concluded his inquiry in a
short period of three hours. The time for handing over of the bribe amount was fixed on the
instructions of the CBI after the case was registered and pre-trap arrangements were made.
Further, in Ranjibhai Kavabhai v State of Gujarat, essential ingredients of corruption cases
are laid that are initial demand, second demand to be made in presence of Panch, voluntary
acceptance and recovery of amount. In the instant case, there was no demand made by the
petitioner and there is no evidence corroborating the allegation. The package was thrusted
on the petitioner and there was no voluntary acceptance. In the present case neither the
quality of the materials produced nor their proper evaluation could. be held sufficient to
convince or satisfy the judicial conscience of any adjudicating Authority to record a verdict
of guilt, on such slender evidence. Thus since the three essentials are absent in the present
case, the allegation cannot be proved beyond all reasonable doubts and thus benefit of
doubt can be availed.

3. WHETHER

THE TELEPHONE TAP ON

MR. BHUSHAN

WAS VALID, AND WHETHER THE

SAME WAS IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PRIVACY.

Section 5(2) permits interception of messages in case of public emergency and in the interest
of public safety. In P.U.C.L. v Union of India, it has been held that unless a public
emergency has occurred or the interest of public safety demands, the authorities have no
jurisdiction to exercise the powers under the said Section. Public emergency has been
defined in Hukum Chand Shyam Lal v Union of India as the prevailing of a sudden condition
or state of affairs affecting the people at large calling for immediate action. In the instant
case, no situation giving rise to public emergency or public safety which has been defined in
above celebrated cases has arose and thus, the foremost essential of Section 5(2) has not been
satisfied. After PUCL case, The Indian Telegraph Rules, 1951 inserted Rule 419-A which
XVI

has established a procedure to be followed before laying phone tap. In K.L.D Nagasree v
Govt of India, it was held that the provisions envisaged in 419 A are mandatory to follow. In
the instant case, Sub Rule(2), (3) and (16) have not been complied with rendering the laying
of phone tap invalid. Further, it has been developed by Courts in various cases that Right to
privacy is implicit in Right to Life. Due to non-compliance of procedure established by law
under Section 5(2) of The Indian Telegraph Act and 419-A under The Indian Telegraph
Rules, 1951, telephone tap has infracted the fundamental right i.e. Right to Privacy of the
petitioner. The phone tap is in contravention to the substantive law as laid down in Subsection (2) of Section 5 of the Act and other provisions envisaged in procedural law under
419- A, thus rendering the fundamental right to be violated by the illegal phone

XVII

MEMORIAL for PETITIONER

XVIII

BODY OF ARGUMENTS

CONTENTION 1
WHETHER SECTION 6A WAS APPLICABLE TO MR. BHUSHAN INCLUDING WHETHER MR.
BHUSHAN, AN IAS OFFICER OF THE PUNJAB CADRE, WAS AN EMPLOYEE OF THE
CENTRAL GOVERNMENT?

1.1 THE PETITIONER WAS AN EMPPLOYEE OF THE CENTRAL GOVERNMENT

It is humbly submitted that the petioner, an IAS officer of the 1985 batch of the Punjab Cadre is an
employee of the Central Government. The All India Service Act 1951 under Section 2 1defines IAS
as follows

In this Act the expression an All India Service means the service known as the Indian
Administrative Service or the service known as the Indian Police Service.

Part XIV of the Constitution of India deals with the provisions governing the IAS. As per Article
310 (1)2:
Tenure of office of person serving the Union or a State
(1) Except as expressly provided by this Constitution, every person who is a member of a defence
service or of a civil service of the Union or of an all India service or holds any post connected
with the defence or any civil post under the Union holds office during the pleasure of the President,
and every person who is a member of a civil service of a State holds office during the pleasure of
the Governor of the State.

1
2

The All India Services Act, 1951 2

The Constitution of India 310

Also, as per Article 311(1)3 :

Dismissal, removal or reduction in rank of persons employed in civil capacities under a Union or a
State.
(1) No person who is a member of a civil service of the Union or an all-India service or a civil
service of a State or holds a civil post under the Union or a State shall be dismissed or removed by
an authority subordinate to that by which he was appointed.
A reading of both the Articles together evidently shows that only the President is conferred with
the authority to appoint, dismiss or remove an IAS officer from office. Thus, it can be clearly
observed that the petiotner, an IAS officer is infact an employee of the Central government.

In the instant case, the petiotner was allotted the Punjab Cadre after appointment to the IAS. The
fundamental rules which apply subject to the provisions of Rule 3 4 to all Government servants
define Cadre under F.R 9(4)
Cadre means the strength of a service or a part of a service sanctioned as a separate unit.
The Central Government is the authority under the Indian Administrative Service (Cadre Rules),
1954 [the Cadre Rules] to allocate the members of the Indian Administrative Service (IAS) directly

recruited

to

various

State cadres/Joint cadres under

the

said Rules.5

The Cadre Rules provides that the allocation of the members of the IAS to various cadres shall be
made by the Central Government in consultation with the State Government or the State
Governments concerned. Sub-rule (2) of Rule 5 further provides that a cadre officer can be
transferred from one cadre to another.6 Thus on consideration of the said rules it can clearly be
seen that the candidates selected for appointment under the IAS are under the employment of the
Central government which then allots them a cadre as per the Indian Administrative
Service( Cadre) Rules 1954. The Central government has authority to allot and transfer an IAS
employee and thus is for all purposes is the employer of IAS officers.
3

The Constitutuon of india 311(1)

The All India Services Act, 1951 3
5
UOI and ors. v Rajiv Yadav IAS and ors, AIR 1994 SC 54
4

Indian Administrative Service (Cadre) Rules, 1954

1.2 SECTION 6A OF THE DSPE ACT, 1946 IS APPLICABLE TO THE PETITIONER

Section 6A of the DSPE Act7 is
Approval of Central Government to conduct inquiry or investigation.(1) The Delhi Special Police Establishment shall not conduct any enquiry or investigation into any
offence alleged to have been committed under the Prevention of Corruption Act,1988 (49 of 1988)
except with the previous approval of the Central Government where such allegation relates to
(a) the employees of the Central Government of the Level of Joint Secretary and above ;and
(b) such officers as are appointed by the Central Government in corporations established by or
under any Central Act, Government Companies, Societies and local Authorities owned or
controlled by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for
cases involving arrest of a person on the spot on the charge of accepting or attempting to accept
any gratification other than legal remuneration referred to in clause (c) of the Explanation to
section 7 of the Prevention of Corruption Act, 1988 (49 of 1988.]
In the instant case the petitioner is the Principal Secretary, Department of Hostels in Universities.
As per the requirment of Setion 6A(a) the DSPE requires prior permission of the Central
government for conducting inquiry or investigation of the employees under Central government of
the level of Joint Secretary and above. In exercise of the powers conferred by proviso to article 309
and clause 5 of article 148 of the Constitution read with Rule 6 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965, and after consultation with the Comptroller and
Auditor General of India in relation to the persons serving in the Indian Audit and Accounts
Department, the President directed that with effect from the date of publication of this order dated
20.04.1998 in the Official Gazette, all civil posts under the Union, shall be classified as follows8
Description of Posts
1.

Classification of Post

A Central Civil post carrying a pay or a scale of pay with a maximum

of not less than Rs. 13,500

7
8

DSPE Act 1946, (Inserted By Act 45 of 2003) 6A

Department Of Personnel & Training Order No. 13012/1/98-Estt. (D) dated 20.04.1998

GRADE A

2.

A Central Civil post carrying a pay or a scale of pay with a maximum

GRADE B

of not less than Rs. 9,000 but less than Rs. 13,500
3.

A Central Civil post carrying a pay or a scale of pay

GRADE C

with a maximum of over Rs. 4,000 but less than Rs. 9,000
4.

A Central Civil post carrying a pay or a scale of pay

GRADE D

the maximum of which is Rs. 4,000 or less

The post of Principal Secretary held by the petitioner is an Above Supertime Scale Grade which
is covered within Grade A as per the pay scale criteria. The post of Principal Secretary is a post
under the designations provided by the State government and is equivalent to the post of Additional
Secretary in the designations under the Central Gov. It is higher in the hierarchy then the post of
Joint secreatry designated in the gov. of India, the equivalent post of which is that of secretary in
the designations in the State government. The petioner thus is holding a post in the IAS above the
designation of a Joint Secretary.
Section 6A(2) lays down the exception wherein no prior approval is required by the DSPE for
cases involving arrest of a person on the spot on the charge of accepting or attempting to accept
any gratification other than legal remuneration.9 In the instant case there was no arrest on the spot
of the petitioner on the charge of accepting or attempting to accept any gratification other than
legal remuneration10. This shall be proved subsequently.

The purpose of the said section is to protect the decision making level officers from the ignominy
of malicious and vexatious investigations, so much so, to relieve them of the anxiety from the
likelihood of harassment in taking honest decisions. It is thus of foremost importance that every
officer of IAS as provided for in this section must be protected in the interest of justice. It is thus
established that the petitioner holding the post of Principal Secretary is by law protected under
section 6A as all the pre-conditions are satisfied.
9

Prevention of Corruption Act, 1988 (49 of 1988.] 7(c)

10

ibid

CONTENTION II

WHETHER MR. BHUSHANS ARREST COULD BE CLASSIFIED AS ARREST ON THE SPOT?

2.1 The arrest of the petioner cannot be classified as arrest on spot under the meaning
established by the honourable courts
Section 6A of the DSPE Act11 is
Approval of Central Government to conduct inquiry or investigation
(1) The Delhi Special Police Establishment shall not conduct any enquiry or investigation into any
offence alleged to have been committed under the Prevention of Corruption Act,1988 (49 of 1988)
except with the previous approval of the Central Government where such allegation relates to
(a) the employees of the Central Government of the Level of Joint Secretary and above ;and
(b) such officers as are appointed by the Central Government in corporations established by or
under any Central Act, Government Companies, Societies and local Authorities owned or
controlled by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for
cases involving arrest of a person on the spot on the charge of accepting or attempting to accept
any gratification other than legal remuneration referred to in clause (c) of the Explanation to

11

DSPE Act 1946, (Inserted By Act 45 of 2003) 6A

section 7 of the Prevention of Corruption Act, 1988 (49 of 1988.]

In R.R. Kishore v CBI12, it was held that Sub-section (2) of Section 6A13 of the DSPE Act permitted
the CBI to arrest a person on the spot, meaning thereby that the CBI would invoke the said section
only in cases of a chance arrest of a public servant on the spot while accepting or attempting to
accept any gratification without any prior information about the same. It was further held that
Section 6A 14of the DSPE Act and Sub-section (2) of Section 6A15 exempted the CBI from taking
previous approval in cases of acceptance of illegal gratification involving arrest of the accused on
the spot on account of non-availability of time for obtaining previous approval.
In the present case, the senior officer of CBI acted on the call received in informal capacity in an
unprofessional and indiligent manner by not seeking any approval for initiating the investigation
against the petitioner for no justifiable cause.After the complaint was received he had ample time
to carry the investigation procedure in accoradance with the due procedure of law rather he
concluded his inquiry in a short period of three hours 16 and decided to lay the phone tap
subsequently. In the present case there arises no question of non-availibility of time of obtaining
previous appproval.It is therefore incompetent and defective on part of the senior CBI official to
procede in the said manner without any reasonable reason. He further after the passage of only one
day laid a pre planned trap by having the complainant call the petitioner to the said trap.Currency
notes were arranged and the trap was allegedly laid to which the petitioner allegedly succumbed
and was said to have been caught. He was subsequently arrested. It is this arrest which is being put
forth by the Respondent as an arrest "on the spot" on the charge of accepting bribe There was no
question of chance arrest as the entire sequence of events was pre-planned from the very first step.
There was no necessity of laying the trap that very day.. The time for handing over of the bribe
amount was fixed on the instructions of the CBI after the case was registered and pre-trap
arrangements were made. The events leading to the arrest of the petitioner were pre-planned and
well thought of and, to my mind, cannot be construed as an "arrest on the spot" as contemplated
under Section 6A(2)17. A distinguishing feature of an arrest on the spot while accepting bribe
would be that the arrest of the person taking a bribe would be a chance arrest or not planned. 18 In
12

R.R Kishore v CBI, AIR 2006 DE 1571

Ibid 11
14
Ibid 11
13

15

DSPE Act 1946, (Inserted By Act 45 of 2003) 6A (2)

Factsheet
17
DSPE Act 1946, (Inserted By Act 45 of 2003) 6A (2)
16

the instant case the investigation is initiated, pre-trap arrangements are made and the arrest is made
at the time of the alleged successful trap. This type of case would not fall within the purview of
Section 6A(2)19 .
Non-obstentive provision was applicable in respect of cases involving arrest of a person on the spot
and therefore since the basic ingredient of arrest on the spot in the present case is missing,
Section 6A(2)20 would not apply.21

2.2 The essential ingredients for applicability of Section 13(1) and (2) 22of PC Act 1988 are
missing in the instant case
The Honble Madras High Court in A.S. Kannan Vs. State23by The Inspector of Police Vigilance
and Anti Corruption held that In a bribery case, the following three coordinal principles have to be
established by the prosecution :
i. Demand,
ii. Acceptance of illegal gratification, and
iii. Recovery of the bribe amount,
in the absence of existence of any of the essential ingredients it could not be considered or
heard to say that the prosecution has proved its case beyond all reasonable doubts24.
It was held in by the learved judge in Ramjibhai Kavabhai Patel v. State of Gujarat25 by the learned
judge that It is pertinent to note that in corruption cases four things are required to be appreciated, viz.
(i) initial demand,

18

Shailendranath Bose v. State of Bihar AIR 1968 SC 63

Ibid 15
20
Ibid 15
21
R.R Kishore v CBI, AIR 2006 DE 1571
22
Prevention of corruption Act, 1988, 13(1)(d), 13(2)
23
A.S Kannan v State by Inspector, AIR 2011 Madras High Court 687
24
State of Kerala and Anr. V. C.P. Rio, AIR 2011 SC 678
25
Ramjibhai Kavabhai Patel v. State of Gujarat, AIR 2011 SC 1582
19

(ii) second demand to be made in presence of Panch,

(iii) voluntary acceptance and
(iv) recovery of amount.
In the instant case, the complainant alleged that the petitioner demanded bribe on 02.01.2013
during the course of their meeting where no other person was present. It is humbly submitted that
the accusation of the complainant without any substantial evidence cannot be relied on. Also,
when the trap was laid by the CBI officer at 4S restaurant with public witnesses and members of
CBI present at the spot, there was no demand made for any gratification by the petitioner. It is
settled principle of law that to prove the allegations of demand and acceptance of bribe by an
accused person, the evidence of the complainant or trap witness cannot be safely acted upon in
the absence of some independent corroborative evidence. In such a situation, bribe giver is
normally treated as No. better than an accomplice and so his evidence needs corroboration from
an independent source.26 Since there was no demand made by the petitioner for the gratification,
the petitioner cannot be convicted under section 13(1)(d) of PC Act 1988.
It is further submitted that the package 27the contents of which were unknown to the petitoner
was refused to be accepted by him. On evident and clear refusal by the petitioner to accept the
said package, it was thrusted on to him forcibly by the compalinant. 28 There was no voluntary
acceptance29 or attempt to obtain the said package by the petitioner as provided under Section
6A (2)30 as an essential.Thus there was no acceptance whatsoever of any sort of gratification by
the petitioner. This evidence also does not lend any credibility to the case of the prosecution.
As proved above there was no demand or acceptance of the illegal gratification by the petitioner,
which are essential ingredients to section 13(1) of the PC Act 31 as held oin above mentioned
celebrated cases. The question of recovery under the given circumstances is futile as without any
demand and acceptance recovery of said bribe is impossible and any allegation to such effect is
thus invalid. The petitioner cannot be on the basis of availabe evidence held to have tacitly
26

.S. Kannan Vs. State by The Inspector of Police Vigilance and Anti Corruption
Factsheet
28
Smt. Meena W/O Balwant Hemke Vs. Respondent:The State of Maharashtra
29
Factsheet
30
DSPE Act 1946, (Inserted By Act 45 of 2003) 6A (2)
31
Prevention of corruption Act, 1988, 13(1)(d), 13(2)
27

accepted the illegal gratification as alleged.

In the present case neither the quality of the materials produced nor their proper evaluation
could. be held sufficient to convince or satisfy the judicial conscience of any adjudicating
Authority to record a verdict of guilt, on such slender evidence. Thus since the three essentials
are absent in the present case, the allegation cannot be proved beyond all reasonable doubts and
thus benefit of doubt can be availed.

3. WHETHER THE TELEPHONE TAP ON MR. BHUSHAN WAS VALID, AND WHETHER THE SAME
WAS IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PRIVACY?

3.1 Non compliance of central elements of Section 5(2) of The Indian Telegraph Act, 1885
rendered phone tap invalid
Section 5(2) of The Indian Telegraph Act states that On the occurrence of any public emergency,
or in the interest of the public safety, the Central Government or a State Government or any officer
specially authorized in this behalf by the Central Government or a State Government may, if
satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States or public order or for
preventing incitement to the commission of an offence, for reasons to be recorded in writing, by
order, direct that any message or class of messages to or from any person or class of persons, or
relating to any particular subject, brought for transmission by or transmitted or received by any
telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the
Government making the order or an officer thereof mentioned in the order:
Provided that press messages intended to be published in India of correspondents accredited to the
Central Government or a State Government shall not be intercepted or detained, unless their
Transmission has been prohibited under this sub-section.
It has been held in PUCL v. Union of India32 that Section 5(2) of the Act permits the interception of
messages in accordance with the provisions of the said Section. "Occurrence of any public
emergency" or "in the interest of public safety" are the sine qua non for the application of the
provisions of Section 5(2) of the Apt. Unless a public emergency has occurred or the interest of
public safety demands, the authorities have no jurisdiction to exercise the powers under the said
Section. Public emergency would mean the prevailing of a sudden condition or state of affairs
affecting the people at large calling for immediate action. When either of these two conditions are
not in existence, the Central Government or a State Government or the authorised officer cannot
resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to
do in the interests of sovereignty and integrity of India etc. In other words, even if the Central
32

AIR 1997 SC 568

10

Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty

and integrity of India or the security of the State or friendly relations with sovereign States or
public order or for preventing incitement to the commission of an offence, it cannot intercept the
messages or resort to telephone tapping unless a public emergency has occurred or the interest of
public safety or the existence of the interest of public safety requires.
PUCL v. Union of India33 went further to define public emergency and public safety which was
subsequently accepted in Hukum Chand Shyam Lal v. Union of India34. It was held that Public
emergency would mean the prevailing of a sudden condition or state of affairs affecting the people
at large calling for immediate action. The expression "public safety" means the state or condition of
freedom from danger or risk for the people at large. When either of these two conditions are not in
existence, the Central Government or a State Government or the authorised officer cannot resort to
telephone-tapping even though there is satisfaction that it is necessary or expedient so to do in the
interests of sovereignty and integrity of India etc.

In the instant case, no situation giving rise to public emergency or public safety which has been
defined in above celebrated cases has arose and thus, the foremost essential of Section 5(2) has not
been satisfied. Thus, there arises no question of invoking Section 5(2) of The Indian Telegraph Act
and thus phone tap laid on the petitioner was invalid and were in violation of petitioners
fundamental and statutory rights.

3.2 Arbitrariness in the exercise of power due to non- compliance of procedure established
under and 419-A of The Indian Telegraph Rules, 1951.
It was realized by the Apex Court that it was necessary to lay down procedural safeguards for the
exercise of power under Section 5(2)35 so that the right to privacy of a person is protected. 36 When
Pucl v Union of India case was heard by the Supreme Court, there was no procedure prescribed
under Section 7 of the said Telegraph Act. It was stressed by the Court that the substantive law as
laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is
fair and reasonable. Yet, the Supreme Court directed a series of steps to be taken before passing an
33

Supra note 1
AIR 1976 SC 789
35
The Indian Telegraph Act, 1885
36
Peoples Union for Civil Liberties(PUCL) v Union of India, AIR 1997 SC 568
34

11

order of interception under Section 5(2), till such time as the rules under Section 7 of the said
Telegraph Act were framed. Thereafter, Rule 419-A has been introduced in the said Telegraph
Rules which are virtually the same as the directions given by the Supreme Court. 37 In State (NCT
of Delhi) v. Navjot Sandhu38, it was held that Section 5(2)39 and 419-A40 has to be read together.
In KLD Nagasree v Govt. of India 41, it was held that the expression 'shall' used in Sub-rules (1), (5)
& (9) of Rule 419-A of the Rules shows that the procedure prescribed is mandatory and therefore
the material obtained in violation of the said provision cannot be taken into consideration for any
purpose whatsoever. Also, it was held that Rule 419-A though procedural in nature is mandatory
and the non-compliance of the same would vitiate the entire proceedings.
The fact that the consequences of non-compliance of the procedure prescribed under Rule 419-A
are also provided under the same Rule further makes clear the intention of the Legislature to make
the said procedure mandatory. Hence, the non-compliance of the procedure under Rule 419-A was
undoubtedly fatal.
Referring to Rule 419A of the Rules as amended in 1951, it is pointed that sub rule (2) and (16)
required the constitution of review committee and interception order to be forwarded to a Review
Committee within seven days. The Committee was required, within a period of 60 days, to make
necessary enquiries and investigations and record its findings whether the interception orders were
issued in accordance with the provisions of Section 5(2) of the Act. It is submitted that in the
instant case, there is no indication in the facts of the case that such a Review Committee examined
the matter and approved the interception orders or any other subsequent procedure was not
followed as prescribed. Therefore, there was a clear violation of Rule 419-A (2) and (16). It is
submitted that interception by the respondent was unconstitutional.
In K.L.D. Nagasree v. Government of India,42 it was held that due to non compliance of the
subsequent procedure and viewed from any angle, the impugned order giving assent to phone tap
cannot be held to be in accordance with the provisions of Section 5 (2) of the Act and Rule 419-A
of the Rules43 and, therefore, the same being ex facie illegal was liable to be set aside.
37

Dharambir Khattar v Union Of India & Another

2005(11) SCC 600
39
The Indian Telegraph Act, 1885
40
The Indian Telegraph Rules, 1951
41
AIR 2007 AP 102
42
AIR 2007 AP 102
43
The Indian telegraph Rules, 1951
38

12

In Peoples Union for Civil Liberties v. Union of India, a PIL the Honble Supreme Court had given
following directions and orders for interception of communication. In Para 35(3), it laid that the
matters to be taken into account in considering whether an order is necessary under Section 5(2) of
the Act shall include whether the information which is considered necessary to acquire could
reasonably be acquired by other means.
But, in the instant case after being informed by the complainant and that too in informal capacity,
the Senior Officer, CBI within a period of three hours 44 after intimation made inquiries and
satisfied himself into deciding to lay a wire tap. It can be clearly observed that no other method or
means was adopted to acquire any evidence and phone tapping was adopted as the first option
instead of it being the last resort. On the basis of ineffectual inquiry, the provisions and guidelines
laid by the Legislature and Supreme Court respectively were violated in the exercise of arbitrary
power. Therefore, it is humbly submitted that in the instant case the phone tap and other inquiry
was done without application of mind to the facts and circumstances of the case on hand. Hence,
there was no compliance of mandatory provisions of 419- A.
3.3. Invalid telephone tap on petitioner was in violation of his constitutional Right to privacy
Blacks Dictionary defines privacy as the right of a person and his property to be free from
unwarranted public security and exposure.45 Invasion of privacy has direct connection with shame
and dignity and it is related to a persons self respect. The term Right to privacy is generic term
encompassing various rights recognized to be inherent in concept or ordered liberty. The right to be
left alone or the Right of a person to be free from unwarranted publicity is the Right to Privacy. 46 It
is considered as a natural and an absolute or pure right springing from the instincts of Nature. The
right to enjoy life is a right to enjoy it in the most agreeable and pleasant way and the right of
privacy is nothing more than a right to live in a particular way.47
The Right to privacy is implicit in the Right to Life and Liberty guaranteed to the citizens of India
by Article 21of the Constitution of India. Disclosure of true private facts has the tendency to
disturb a persons tranquility. It may generate many complexes in him and may even lead to many
psychological problems. He may, thereafter, have a disturbed life all through. In the face of these

44

Moot Proposition para 5 at 6.

Zaidi, Hasan. Mobile Phone Forensics and Electronic Surveillance, Alia Law Agency (2010)
46
P.Ramanatha Aiyers Law Lexicon, 2nd Edition,p.1689
47
Blacks Law Dictionary, 8th Edition, p.1350
45

13

potentialities, the right of privacy is an essential component of the right to life envisaged by Article
21.
3.3.1 Right to privacy is implicit in Right to life
Privacy is one of the basic and integral part of ones life and is all the more necessary in a
democratic set up of society. It is not an independent fundamental right. It has been developed by
Courts in various cases which came before it for adjudication. However, the Courts have not
defined privacy on the ground that it may be too broad and moralistic to define it judicially.
The Right to Privacy was first raised in Kharak Singh v State of U.P 48. The majority opinion was
that no such right is conferred under Articles 19(1)(d), 19(1)(e) and 21 but Justice Subba Rao
opined that this right may be inferred from right to personal liberty under Article 21. In
Unnikrishnan v State of Andhra Pradesh49, the Supreme Court took a broader view and gave a list
of rights under the expression personal liberty which arise from Article 21 and it included right to
privacy. A detailed analysis of thr right took place in R. Rajgopal v State of Tamil Nadu50 and held
that right to privacy has acquired constitutional status and is implicit under Article 21.
3.3.2 Telephone tapping infringed Article 21 due to non-compliance of procedure established
by law under Section 5(2) of The Indian Telegraph Act and 419-A under The Indian
Telegraph Rules, 1951
Communication privacy is a bedrock constitutional principle and electronic communications must
be protected through strong privacy legislation. Striking the proper balance between privacy and
law enforcement in the electronic realm has always been a complex endeavor.
The Court observed in M.Nagaraj v Union of India51, that it is a fallacy to regard fundamental
rights as a gift from the State to its citizens. Individuals possess basic human right independently of
any Constitution by the fact that they are members of human race. The Right to life is not merely
physical or animal existence. It includes the right to life with human dignity.
Conversation on phone is often of an intimate and confidential character. Telephone conversation
is a part of modern mans life. Telephone conversation is an important facet of mans private life.
48

AIR 1963 SC 1295

AIR 1993 SC 2178
50
AIR 1995 SC 264
51
AIR 2007 SC 71
49

14

Right to privacy would certainly include telephone conversation in the privacy of ones home or
office. Telephone tapping would thus infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law.52
Telephone tapping under Section 5(2) of the Telegraph Act was challenged in P.U.C.L. v Union of
India, where it was held that right to privacy was a part of right to life and personal liberty under
Article 21 of the Constitution and it cannot be curtailed except according to procedure established
by law. In Maneka Gandhi v Union of India53, it was held that personal libert under Article 21 was
to be read in conjunction with Articles 19 and 14 in as much as the law authorizing interference
with personal liberty and right of privacy must also be right, just and fair and not fanciful,
oppressive or arbitrary.
In the instant case, as already established above, the mandatory provisions of procedure envisaged
in 419-A was not complied with and thus telephone tapwas invalid. Since, the telephone tap was
not laid according to the procedure established by law, it infracts the fundamental right i.e. right to
privacy which is implicit in fundamental right under Article 21 i.e. Right to life.
In K.L.D. Nagasree v Union of India, sub rule (9) of the procedure laid in 419-A was not complied
with and it was held that the provisions laid in 419-A were mandatory to follow. Also, it was held
that due to non- compliance of provisions of 419-A, the phone tap was invalid and infracted the
Right to privacy under Article 21. Also, the bench opined that keeping in view the object and
purpose of the said Rules as declared in People's Union For Civil Liberties's case and particularly
since the violation of the said provisions would result in infraction of right to privacy of an
individual which is a part of the right guaranteed under Article 21 of the Constitution of India, that
Rule 419-A though procedural in nature is mandatory and the non-compliance of the same has
resulted in violation of the Right to Privacy.
In the instant case also, the phone tap is in contravention to the substantive law as laid down in
Sub-section (2) of Section 5 of the Act and other provisions envisaged in procedural law under
419- A, thus rendering the fundamental right to be violated by the illegal phone tap.

52
53

P.U.C.L. v Union of India, AIR 1997 SC 568

AIR 1978 SC 597

15

16

PRAYER FOR RELIEF

WHEREFORE

IN THE LIGHT OF ABOVE FACTS STATED, ARGUMENTS ADVANCED AND

AUTHORITIES

CITED, THE

PETITIONER

PRAYS BEFORE THE

HONBLE COURT

TO BE

GRACIOUSLY PLEASED TO:

1. That no arrest on spot is present as provided for in Section 6A of the DSPE Act and that
section 6A of the DSPE Act 1946 is applicable to the petitioner.

2. That the rules of Telegraph Act 1885 were not abided by and the due process of law was
not followed.

3. The petitioners Right to Privacy under Article 21 of the Indian Constitution has been
violated.

4.

Respondent be held responsible for frivolous proceedings and the proceeding pending
before the Ld. Spl. Judge be quashed and costs be imposed on the respondent.

AND

The Court may also be pleased to pass any other order in the light of justice, equity and good
conscience. And for this act of kindness of your Lordship, the Petitioner shall as duty bound ever
pray.

All of which is respectfully submitted.

17

Counsels on behalf of Petitioner

Date: X February, 2013

_______________

18