TMI Blog2011 (5) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Registry must 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. - WRIT PETITION (CIVIL) NO.39 OF 2006 - - - Dated:- 11-5-2011 - G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ. JUDGEMENT GANGULY, J. 1. In this writ petition, filed under Article 32, the petitioner is seeking to protect his fundamental right to privacy under Article 21 of the Constitution of India. The petitioner s case is that on the basis of his information from various sources, he had learnt that the Government of India and the Government of National Capital Region of Delhi, being pressurised by the respondent No.7, had been intercepting the petitioner s conversation on phone, monitoring them and recording them. The petitioner had been availing of the telephone services of M/s Reliance Infocom Ltd., impleaded herein as respondent no.8. He further referred to similar cases of interception of phone conversations of other people, including some of the country s leading political figures, who were usin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner submitted that the recordings of the said conversations had been made available to some journalists/news agencies. In view of these submissions, this Court directed the electronic and the print media not to publish any part of the said conversations, vide Court s order dated 27 th February, 2006. 4. Various applications for intervention were preferred, especially by civil society groups. These applications were allowed. The interveners argued that the conversations by the petitioner were mostly made in his capacity as a public functionary and, therefore, were public in nature, and the citizens of the country have a right to know their contents under Article 19(1)(a) of the Constitution. A prayer was therefore made by them to vacate the order of injunction. 5. In this matter pursuant to the direction of this Court, a detailed affidavit has been filed by one R. Chopra, Joint Secretary (Home Department) of the Government of National Capital Territory of Delhi, in which it has been clearly stated that the Principal Secretary (Home) in the Government of National Capital Territory of Delhi, is authorized by the Lieutenant Governor of Delhi to exercise powers to order inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministry of home affairs, North Block, New Delhi, in which reference was made to certain orders passed by this Court in this petition, and thereafter, reference was also made to the judgment of this Court in People s Union for Civil Liberties (supra), and the various provisions of Indian Telegraph Act. The Central Government made it very clear that it was fully aware of the sensitivity relating to the conversations on telephone, and the privacy rights thereon. Reference was also made to technological measures to avoid unauthorized interceptions and 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 by the Additional Police Commissioner (Crimes), it was discovered that the purported order of Joint Commissioner of Police (Crime) and Principal Secretary (Home) on the basis of which interceptions were alleged by the petitioner were forged documents. 10. Consequent on the same report, an FIR No.152/2005. had been lodged under Sections 419, 420 468, 471 and 120B of I.P.C., read with Sections 20, 21 and 26 of the Indian Telegraph A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with affidavits. Rule 5 of Order XI is a virtual replica of Order XIX Rule 3 (1). Order XI Rule 5 of the Supreme Court Rules is therefore set out: Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. 14. In this connection Rule 13 of Order XI of the aforesaid Rules are also relevant and is set out below: 13. In this Order, affidavit includes a petition or other document required to be sworn or verified; and sworn includes affirmed. In the verification of petitions, pleadings or other proceedings, statements based on personal knowledge shall be distinguished from statements based on information and belief. In the case of statements based on information, the deponent shall disclose the source of this information. 15. The importance of affidavits strictly conforming to the requirements of Order XIX Rule 3 of the Code has been laid down by the Calcutta High Court as early as in 1910 in the case of Padmabati Dasi v. Rasik Lal Dhar [(1910) Indian Law Reporter 37 Calcutta 259]. An erudite Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged 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 was made are forthcoming. It is true that in a case of this kind it would be difficult for a petitioner to have personal knowledge in regard to an averment of mala fides, but then were such knowledge is wanting he has to disclose his source of information so that the other side gets a fair chance to verify it and make an effective answer. In such a situation, this Court had to observe in 1952 SCR 674: AIR 1952 SC 317, that as slipshod verifications of affidavits might lead to their rejection, they should be modelled on the lines of O. XIX, R. 3 of the Civil Procedure Code and that where an averment is not based on personal knowledge, the source of information should be clearly deposed. In making these observations this Court endorse the remarks as regards verification made in the Calcutta decision in Padmabati Dasi v. Rasik Lal Dhar, (1910) ILR 37 Cal 259. 18. Another Constitution Bench of this Court in A. K. K. Nambiar v. Union of India and another, AIR 1970 SC 652, held as follows: The appellant filed an affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by an 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 1988 SCC 1987. This Court held, in para 2 at page 1988, as follows: In the case of statements based on information the deponent shall disclose the source of his information. Similar provisions are contained in Order 19, Rule 3 of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be in accordance with Order XI, Rules 5 and 13 of the Supreme Court Rules. The purpose underlying Rules 5 and 13 of Order XI of the Supreme Court Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief as this is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit . 22. In the same paragraph it has also been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter is further heard and guidelines issued by this Court. 27. That interim order continued for about four years and is continuing till now. 28. Then when in the course of hearing of this case, it was pointed out by this Court on 2 nd February, 2011 that the affidavit filed by the petitioner is perfunctory, defective and not in accordance with the mandate of law, a prayer was made by the learned Senior Counsel of the petitioner to file a proper affidavit as required under the law. Similar prayer was made by the learned Solicitor General for the official respondents, and the case was adjourned. Thereupon a detailed affidavit has been filed by the petitioner. 29. It appears from the detailed affidavit filed by the petitioner, pursuant to the order of this Court dated 2nd February, 2011, that the main documents on which the writ petition is based, namely Annexures A and B, the orders dated 22nd October, and 9 th November, 2005 were obtained by him from Mr. Anurag Singh, who is one of the accused and was arrested in the aforesaid criminal case. It also appears that petitioner s averments in paragraphs 2(v), 2(vii), 2(viii) and 2(ix) are based on information derived from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that signatures of the then Principal Secretary (Home) and those of then Deputy Secretary(Home) have been forged and fabricated. (e) It is respectfully submitted that the file endorsement number in the purported interception order dated 9th November, 2005 there is mention of No. F.5/1462/2004-HG/7162. This dispatch number 7162 is itself wrong and fake as the dispatch number 7162 was given to a communication issued on 10 th November 2005 and this concerned the forwarding of a dismissal order against a Deputy Superintendent of the Central Jail Tihar. 32. Apart from the various discrepancies, the deponent also pointed out in sub paragraph (f) of para I (IV) the following gross spelling mistakes in the purported order dated 9.11.2005: (i) On the first line the words satisfied and interest have been mis-spelt as setisfied and intrest (ii) On the second line the word interest has been mis spelt as intrest (iii)On the fifth line the word disclosure has been mis spelt as dicloser . (iv)On the eighth line the word the has been mis spelt as te . The word Rules has been mis spelt as Ruls and word exercise has been mis spelt as exercies . (v)In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion that it is no doubt true that the service provider has to act on an urgent basis and has to act in public interest. But in a given case, like the present one, where the impugned communication dated 9.11.2005 is full of gross mistakes, the service provider while immediately acting upon the same, should simultaneously verify the authenticity of the same from the author of the document. This Court is of the opinion that the service provider has to act as a responsible agency and cannot act on any communication. Sanctity and regularity in official communication in such matters must be maintained especially when the service provider is taking the serious step of intercepting the telephone conversation of a person and by doing so is invading the privacy right of the person concerned and which is a fundamental right protected under the Constitution, as has been held by this Court. 39. Therefore, while there is urgent necessity on the part of the service provider to act on a communication, at the same time, the respondent No.8 is equally duty bound to immediately verify the authenticity of such communication if on a reasonable reading of the same, it appears to any person, acting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted and in the amended cause title also, respondent No. 7 remains impleaded. The averments against the said respondent were not withdrawn by the petitioner. 44. In the month of February of 2011, towards the closing of the hearing, an additional affidavit, which makes very interesting reading, was filed by the petitioner. All the three paragraphs of that affidavit are set out: I, Amar Singh, son of late Shri H. G. Singh, aged 54 years residing at 27, Lodhi Estate New Delhi, do hereby solemnly swear on oath as under: - 1. That I am the petitioner in the above matter and am conversant with the facts and circumstances of the case and as such competent to swear this affidavit. The Petitioner craves leave of this Hon ble Court to place the following additional facts on record before this Hon ble Court which has a bearing on the matter. 2. That the Petitioner was informed by one Mr. Anurag Singh, alias Rahul, who is one of the accused in the FIR No. 152/2005, registered in Delhi that his phone was being tapped at the behest of political opponents. However, later the Delhi Police investigated the mater and the said Anurag Singh alias Rahul, was arrested by the Delhi Police fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led the petition with those annexures and without a proper affidavit. 48. It therefore appears that the petitioner has been shifting his stand to suit his convenience. In 2006, the gravamen of the petitioner s grievances was against the respondent no. 7, and the basis of his petition was the information that he derived from the said Anurag Singh. On the basis of such a petition, he invoked the jurisdiction of this Court and an interim order was issued in his favour, which is still continuing. 49. Now when the matter has come up for contested hearing, he suddenly withdraws his allegations against the respondent no. 7 and feels satisfied with the investigation of the Police in connection with the aforesaid case of forgery and also states that the same Anurag Singh edited and tampered certain conversations of the petitioner . 50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions. 51. Apart from the aforesaid, in the writ petition which was filed on 21st January, 2006, there is no mention of the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3}, Justice Kay reminded us of the same position by holding: If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made. 57. In one of the most celebrated cases upholding this principle, in the Court of Appeal in R. v. Kensington Income Tax Commissioner {1917 (1) K.B. 486} Lord Justice Scrutton formulated as under: and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- facts, now law. He must not misstate the law if he can help it the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have been fully and fairly stated to it, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 61. However, this Court is constrained to observe that those principles are honoured more in breach than in their observance. 62. Following these principles, this Court has no hesitation in holding that the instant writ petition is an attempt by the petitioner to mislead the Court on the basis of frivolous allegations and by suppression of material facts as pointed out and discussed above. 63. In view of such incorrect presentation of facts, this court had issued notice and also subsequently passed the injunction order which is still continuing. 64. This Court, therefore, dismisses the writ petition and vacates the interim order and is not call ..... 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