DATE OF JUDGMENT:
17th January 2022
JUDGES:
Justice Chandra Dhari Singh
PARTIES:
Appellants (s): Jatinder Pal Singh
Respondent (s): Central Bureau of Investigation (CBI)
SUBJECT
In the present case an appeal was filed in the High Court of Delhi against the order of a Trial Court which framed multiple charges against the petitioner under provisions of the Prevention of Corruption Act, 1988 and the Indian Penal Code 1860.
OVERVIEW
1. On 22nd April 2010, an FIR was registered against Dr. Ketan Sharma, erstwhile President of Medical Council of India (MCI) under Sections 7/8/11/13(2) read with Section 13(l)(d) of Prevention of Corruption Act, 1988 (PC Act) and Section 120-B of the Indian Penal Code, 1860 (IPC). It was alleged that Dr. Ketan Sharma entered into a criminal conspiracy with the Petitioner, Dr. Sukhvinder Singh, and others with the object to show favor w.r.t recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala (GSMCH) for admission into 4th year of the MBBS course for the academic session of 2011-2012.
2. It is the case of the prosecution that the CBI Special Unit of New Delhi placed the phone of the petitioner and others under surveillance during the period when MCI received the application for renewal of permission from GSMCH, Patiala for admission into the 4th Batch of the MBBS course.
3. On 22nd April 2010, the police recovered a sum of Rs. 2 Crores approximately from Dr. Kamaljeet Singh when he was intercepted while allegedly delivering the money, as illegal gratification for the aforementioned purpose, at the residence of the Petitioner.
4. On 1st June 2012, the Trial Court passed a common order on the charge under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act and Section 120B of the IPC as well as an individual order on the charge against the petitioner under Section 12 of the PC Act. Aggrieved by the same, the petitioner approached the High Court. The Court clubbed together all the petitions related to the matter for the purpose of adjudication.
5. The learned Counsel appearing for the petitioner argued that:
a) According to the MCI Regulation and Rules of 1999, there was no requirement for an auditorium to be constructed at GSMCH at the stage of admission of the fourth-year batch of MBBS. There was never any concealment about the fact that an auditorium was under construction as the same was disclosed by the college. Therefore, no reasoning can be deduced that the Petitioner was acting as a conduit between Dr. Sukhwinder Singh and Dr. Kamaljeet Singh and the Public Servant, Dr. Ketan Desai because the auditorium with respect to which the bribe was to be given was not even a requirement in respect of admission.
b) The telephonic conversation was obtained illegally and there was not even a mention of the petitioner in the conversation. Moreover, the Compact Disc on which the alleged intercepted phone calls were recorded was neither sent to CFSL nor was it used as evidence. Hence, the same could not be admissible under Section 65-B of the Indian Evidence Act, 1872.
c) The Sum of Rs. 2,17,75000 recovered by the Income Tax Department was actually a part of the advance received by the Petitioner towards the sale of his land situated at Village Maghrauli Khadar, Dospur Pargana Dadri, District Faridabad. The same fact has been explained to the Income Tax Department and the transaction has also been corroborated by the witness who was involved in the transaction. Moreover, the Respondent failed to produce any evidence to establish the money trail or establish any connection with the seized money.
d) Dr. Ketan Sharma, the main accused of the case had already been discharged by this High Court, hence, the prosecution under the PC act is Void ab Initio, as the Respondent failed to establish any involvement of the Public Servant.
e) The Charge sheet filed in the case violated the provisions of the CBI Crime Manual as the Respondents failed to obtain approval of the CBI Director prior to filing the charge sheet. The Counsel relied on the judgment in the case of Ripun Bora v. State to buttress their argument.
6. The learned Counsel appearing for the Respondent argued that:
a) The arguments submitted by the Petitioner can’t be considered at the current stage when only charges have been framed based on the probability of commission of the offense. The said arguments can be considered at the stage of final arguments but not at the stage where the order on charges needs to be set aside.
b) The circumstances and the evidence collected during the investigation indicate the guilt of the petitioner. Thus, there was no gross illegality in the order of the Trial Court and interference of this Court under its revisional jurisdiction is unnecessary.
LEGAL PROVISIONS
Prevention of Corruption Act, 1988:
- Section 7- Public servant taking gratification other than legal remuneration in respect of an official act.
- Section 8- Taking gratification, in order, by corrupt or illegal means, to influence public servant.
- Section 12- Punishment for abetment of offences defined in section 7 or 11.
- Section 13- Criminal misconduct by a public servant.
Indian Penal Code 1860:
- Section 107 - Abetment of a thing.
- Section 120B- Concealing design to commit offence punishable with impris¬onment.
Indian Evidence Act, 1872
- Section 65B- Admissibility of electronic records.
ISSUES
1. Whether the recorded telephonic conversation violates the Fundamental Rights of the petitioner?
2. Whether the charges framed by the Trial Court against the petitioner are sustainable?
JUDGMENT
1. Analysing the first issue, the Court referred to the judgment in the case of People’s Union for Civil Liberties v. Union of India to figure out the legality of phone tapping w.r.t to Right to Privacy Under Article 21 of the Indian Constitution and scope of power to intercept messages under the Telegraph Act. The Supreme Court held that
The right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as ―right to privacy‖. Conversations on the telephone are often of an intimate and confidential character. Right to privacy would certainly include telephone conversation in the privacy of one's home or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
Section 5(2) of the Telegraph 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‖ is the sine qua non for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section.
2. The Apex Court also referred to Rule 419A of Amended Telegraph Rules 1951, which declare that the order of the Home Secretary necessary for granting permission to intercept telephonic conversations must be forwarded to the Review Committee within seven days of passing the order. This Court found that no material was put on record to establish that any review of the order of the Home Secretary was conducted in compliance with the aforesaid rules. Therefore, the Special Judge while passing the impugned orders has totally ignored the provisions of the aforesaid rules, held by the Court. Moreover, in the instant case, the mandatory requirements laid down by section 5(2) for placing reliance on such audio conversations, have not been fulfilled. The Court held that if such illegally intercepted such messages/audio conversations pursuant to an order having no sanction of law, are permitted, it would lead to “manifest arbitrariness” and would promote the scant regard to the procedure and fundamental rights of the citizens
3. The Court then referred to the documents of the Ministry of Health & Family Welfare which were issued taking into consideration the FIR filed by Respondent/CBI in the matter. The Union Health Minister in the documents directed that a three-member fact-finding team may immediately be constituted by the Union Health Ministry to inspect the college and submit a report within a week.
4. The fact-finding committee concluded that “grant permission” for admission of 100 students in the year 2010-11 for the 4th batch of MBBS students at the Gian Sagar Medical College & Hospital, Patiala was justified on the basis of the report of the council Inspectors and the compliance report of the Principal. Further, the existing facilities and faculty at Gian Sagar Medical College & Hospital were found to be adequate to conduct undergraduate medical teaching in the report.
5. The Court also referred to the inspection conducted by the Board of Governors of MCI which stated that the auditorium was not available at the facility and it was only required at the time of admission of the 5th batch of MBBS students. The Board of Governors after considering the said inspection decided to grant the permission to admit the 4th Batch of 100 MBBS students in said college for the academic year 2010-11 and accordingly, the permission letter was issued on 12th July 2010
6. The Court held that the Trial Court erred in its judgment to not consider such relevant documents notwithstanding the fact that they were not a part of the charge sheet. The Court relied on the judgment in the case of Nitya Dharmananda @K. Lenin and Anr. v. Gopal Sheelum Reddy where the Apex Court held that “if the court is satisfied that there is a material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet.”
7. With respect to the intercepted telephone call, the Court found the intercepted telephonic conversations to be insufficient to fulfil the requirement of Section 107 IPC so as to establish a prima facie case that the petitioner committed the offense of abetment as specified under Section 12 of PC Act and other offenses as alleged in the charge sheet.
8. The Court also accepted the argument of the petitioner that the charge sheet in the case was filed without prior approval or sanction of the Director of CBI as mandated by the CBI Manual (Crime). The Court noted that the respondents failed to reply whether prior direction/approval of the Director has been obtained by the CBI as per the CBI Manual (Crime). The Court relied on the judgment in the case of Ripun Bora v. State.
9. The Court concluded that the main conspirator in the case has been discharged and in the absence of evidence implicating the petitioner as a co-conspirator alleged to be a middle-man, there is no point in continuing with the case and “keep the entire criminal justice machinery running endlessly especially in light of the fact that the criminal proceedings had been initiated ten years back and has stayed pending ever since.”
10. The Court set aside the charges framed by the trial Court and disposed of the petition.
CONCLUSION
The judgment in the present case provides us with a deeper insight into the relationship between the right to privacy and the reasonable restrictions that could be imposed by the State on the said right. As the Court noted telephone conversation is an important facet of a man's private lifeand such act most certainly falls within the ambit of Right to Privacy under Article 21 of the Constitution.
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