30

RGNUL INTRA MOOT COURT COMPETITION 2013

IN THE HIGH
COURT OF PUNJAB & HARYANA

AT CHANDIGARH

The Writ Petition concerning the quashing of proceedings

initiated by CBI under section 13(1)(d) r/w section 13(2) of the
Prevention of Corruption Act, 1988 against Tyrion Bhushan
______________________________________

TYRION BHUSHAN
PETITIONER
V.

CENTRAL BUREAU OF INVESTIGATION

RESPONDENT

______________________________________________
MEMORIAL FOR RESPONDENT

AS SUBMITTED TO THE COURT ON FEBRUARY 21, 2013

 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS.............................................................................................................I

INDEX OF AUTHORITIES................................................................................................................II

STATEMENT OF JURISDICTION....................................................................................................IV

STATEMENT OF FACTS..................................................................................................................V

ISSUES RAISED.............................................................................................................................VII

SUMMARY OF ARGUMENTS.......................................................................................................VIII

BODY OF ARGUMENTS....................................................................................................................1

1. SECTION 6A IS APPLICABLE TO THE PETITIONER AS THE PETITIONER IS AN EMPLOYEE

OF THE CENTRAL GOVERNMENT AND PROCEEDINGS AGAINST THE PETITIONER CANNOT

BE QUASHED...........................................................................................................................1

1.1 The petitioner is an employee of Central Government.................................................1

1.1.1 Mr. Bhushan is member of All India Services and only Central Government has
power to appoint and remove him..................................................................................1

1.1.2 The Pervasive Control is with the Central Government............................................2

1.1.3 Petitioner was working under the Directions of Ministry of Urban Development.. 3

1.2 The findings of the CBI resulting in arrest of petitioner cannot be nullified.............4

1.2.1 Procedural Irregularity does not vitiate the proceedings..........................................4

1.2.2 Quashing of proceedings would frustrate the whole aim of Legislature..................5

1.3 Even if petitioner is a state government employee, his proceedings cannot be

quashed...............................................................................................................................5

2. THE ARREST OF THE PETITIONER CAN BE CLASSIFIED AS AN “ARREST ON THE SPOT”.....7

2.1 The constituents of § 6A(2) are fulfilled.........................................................................7

 2.1.1 § 6A(2) gives power to CBI to arrest a person of any designation if he is arrested
on the spot.......................................................................................................................7

2.1.2 The instant case was a trap case and the arrest is an “arrest on the spot”..............8

2.1.3 There was direct evidence hence arrest was made on the spot.................................8

2.1.4 The Applicant was involved in offence under § 6A(2)..............................................9

2.2 Section 6A(2) of Delhi Special Police Establishment Act, 1946 must be interpreted to
meet the intention of the legislature...............................................................................10

2.2.1 Harmonious Interpretation must be accorded to § 6A(2).......................................10

2.2.2 Mischief Rule should be applied in case two interpretations are possible and then
the one which removes mischief must be followed.....................................................11

2.2.3 Literal Meaning would frustrate the intention of legislature.................................12

3. THE TELEPHONE TAP ON THE PETITIONER WAS VALID AND THE SAME WAS NOT IN

VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PRIVACY................................................14

3.1 The telephone tap was conducted in accordance with due process of law................14

3.1.1 The respondent completed all the “necessary formalities” to tap petitioner’s
phone.............................................................................................................................14

3.1.2. The information obtained by phone tapping could not have been obtained by
other means..................................................................................................................15

3.2 Telephone tap in cases such as the instant case is not in violation of the
constitutional right to privacy.........................................................................................16

3.2.1. Right to privacy can be curtailed by procedure validly established by law............16

3.2.2. “Public emergency” overrides the constitutional right to privacy.........................17

PRAYER FOR RELIEF.....................................................................................................................X

 TABLE OF ABBREVIATIONS

¶/¶¶ Paragraph/Paragraphs
§/§§ Section/Sections
AIR All India Reporter
All ER All England Reporter
All. Allahabad
Art. Article
Bom. Bombay
Cal. Calcutta
Ch. D. Chancery Division
Co. Company
Del. Delhi
FSR Fleet Street Reports
HL House of Lords
Ker. Kerala
Ltd. Limited
No. Number
Ori. Orissa
Ors. Others
p. Page
Pvt. Private
QBD Queens Bench Division
Raj. Rajasthan
SC Supreme Court
SCC Supreme Court Cases
Supp. Supplement
U.K. United Kingdom
U.S. United States
v. Versus

PAGE | I
MEMORIAL ON BEHALF OF THE RESPONDENT
 INDEX OF AUTHORITIES

CASES

Air Commodore Kailash Chand v. State,  (1980) 1 SCC 667.........................................................5

Blyth v. Blyth, (1966) 1 All E.R. 524 (HL)......................................................................................4
Carew and Company Ltd. v. Union of India, (1975) 2 SCC 791..................................................11
Dharambir Khattar v. Union of India & Anr., W.P. (Crl.) 1582/2007...................................17, 18
Dr. Anup Kumar Srivastava v. CBI, Bail Appln. 341/2012............................................................8
Dr. R.R. Kishore v. CBI, (2007) 142 DLT 702.............................................................................11
Dr. Subramaniam Swamy v. Dr. Manmohan Singh and Ors., (2012) 1 SCC 1041.......................5
Duni Chand Rataria v. Bhuwalka Brothers Ltd., AIR 1955 SC 182..............................................9
Hukam Chand Shyam Lal v. Union of India and Ors., AIR 1976 SC 789....................................17
Kalpnath Rai v. State (through CBI), AIR 1998 SC 201................................................................5
Lumbhardar Zutshi v. King, AIR 1950 PC 26.................................................................................6
M. Pentiah and Ors. v. Muddala Veeramallappa and Ors., AIR 1961 SC 1107..........................11
M/s New India Mills Ltd v. Commissioner of Sale Tax, Bihar, AIR 1963 SC 1207.....................11
Manjit Singh Bali v. CBI, 2012 ALL MR (Cri) 171......................................................8, 10, 11, 12
Narayan Prasad Sen v. The State of West Bengal, 2007 Cri. LJ 1..................................................6
Neera Yadav v. CBI, (2206) 1 UPLBEC 601..................................................................................3
P.V. Narsimha Rao v. The State, 1998 Cri. LJ 2930.......................................................................5
People's Union for Civil Liberties (PUCL) v. Union of India and Anr., AIR 1997 SC 568...14, 15
Prabhu v. Emperor, AIR 1944 SC 73.............................................................................................6
R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157.....................................................15, 17
Ravi Shankar Srivastava v. State of Rajasthan and Ors. 2005 (2) WLC 612...............................15
Seaford Court Estates Ltd. v. Asher, (1949) 2 All E.R. 155 (HL)................................................12
Shreenath and Anr. v. Rajesh and Ors., [1998] 2 SCR 709............................................................5
Smt. Rani Kusum v. Smt. Kanchan Devi, AIR 2005 SC 3304.....................................................4, 5
State of Maharashtra v. Bharat Shanti Lal Shah and Ors., (2008) 13 SCC 5………….16, 17, 18
State of Orissa and Ors. v. Ganesh Chandra Jew, 2004 Cri. LJ 2011............................................5
Union of India v. P.P. Hinduja and Anr., AIR 2003 SC 3258........................................................4

PAGE | II
MEMORIAL ON BEHALF OF THE RESPONDENT
Veeraswami v. Union of India, 1973 M L J 660.............................................................................5
Vineet Narain v. Union of India, 1998(1) SCC 226........................................................................8
‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296..........................................................................................16

BOOKS

ASHISH KUMAR DAS, A. KUMAR DAS & P.K. MOHANTY, HUMAN RIGHTS IN INDIA 71 (3rd ed.
2007)..........................................................................................................................................17
ASHOK DHAMIJA, PREVENTION OF CORRUPTION ACT: A DETAILED COMMENTARY 356 (5th ed.
2007)......................................................................................................................................9, 12
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 971 (14th ed. 2008).....................................1, 2, 16, 17
PETER BENSON MAXWELL & ALFRED BRAY KEMPE, THE INTERPRETATION OF STATUTE 76
(12th ed. 2004)...........................................................................................................................11
S.C. SARKAR, COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE, 1973 557 (12th ed.
2007)............................................................................................................................................5

PAGE | III
MEMORIAL ON BEHALF OF THE RESPONDENT
 STATEMENT OF JURISDICTION

The respondent hereby submits to jurisdiction of the High Court of Punjab & Haryana, at
Chandigarh, in accordance with Articles 226, 227 of the Constitution of India, read with Section
482 of the Code of Criminal Procedure, 1973 in the petition concerning the quashing of
proceedings initiated by CBI under section 13(1)(d) read with section 13(2) of the Prevention of
Corruption Act, 1988 against Tyrion Bhushan.

PAGE | IV
MEMORIAL ON BEHALF OF THE RESPONDENT
 STATEMENT OF FACTS

1. The petitioner is an Indian Administrative Services officer of the 1985 batch of the Punjab
Cadre and posted as the Principal Secretary, Department of Hostels in Universities. During this
period, there were allegations of large-scale corruption in the award of tenders to construct
hostels in various universities across Punjab, and it emerged that a single conglomerate, M/s
Berry and Purohit had been appointed as the contractor for all toilets across all universities in
Punjab.

2. Veena Lannister, the Managing Director of M/s Showerwell, wanted to be appointed as the
sole equipment supplier for hostel toilets across Punjab and Veena decided to directly have a
meeting with the petitioner.

3. On 02.01.2013, during the course of their meeting, Veena was taken aback by the brazen
demands of the petitioner 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. In
exchange however, the petitioner 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.

4. Distraught at the demands of the petitioner, Veena approached Mr. Vishnu Snow, a classmate
of hers from school, who she thought was a member of the State Police. However, Vishnu was a
senior officer with the CBI in Delhi now. Upon receipt of such information from Veena, Vishnu
decided to inquire further, and within a period of three hours, after making necessary inquiries
and having satisfied himself as to there being some substance in Veena’s story, decided to lay a
wire tap on the petitioner.

5. Vishnu, after having completed the necessary formalities under the Indian Telegraph Act,
1885 and rules there under, within a period of one day, proceeded to tap the petitioner’s phone.
The very next day, through the telephone tap, Vishnu had gathered evidence as to requests being
made by the petitioner to third parties also for kickbacks. Vishnu thereafter asked Veena to
telephone the petitioner and ask him to meet her at 8pm that night at 4S Restaurant in Defence

PAGE | V
MEMORIAL ON BEHALF OF THE RESPONDENT
Colony, Patiala, where she would hand over the required “package”.

6. 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 the petitioner, proceeded to hand over the bag containing the marked
notes to the petitioner. The petitioner immediately refused to accept the package, indicating
instead that it be kept under the commode in the toilet of the restaurant. However, Veena
panicked, and insisted that the petitioner take the package immediately. She then proceeded to
throw the package at petitioner, and made a signal to the waiting CBI Officers, including Mr.
Snow.

7. The petitioner was arrested immediately by the CBI officers, and the bag was recovered from
him. The petitioner 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.

8. Proceedings were initiated against the petitioner before the Special Judge, CBI, and a Charge
sheet was filed within a period of 9 days of his arrest. As per the Chargesheet, the CBI stated that
the petitioner was guilty of offences under Section 13(1)(d) r/w Section 13(2) of the PC Act,
1988. It also emerged that the letter authorizing the phone tap had been addressed to Vishnu
Snow directly from the Home Ministry.

9. The petitioner immediately filed a petition before the High Court of P&H at Chandigarh under
Articles 226, 227 of the Constitution of India r/w Section 482 Code of Criminal Procedure,
1973, seeking quashment of the proceedings pending before the Ld. Spl. Judge.

Hence, this petition.

PAGE | VI
MEMORIAL ON BEHALF OF THE RESPONDENT
 ISSUES RAISED

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. BHUSHAN’S 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?

PAGE | VII
MEMORIAL ON BEHALF OF THE RESPONDENT
 SUMMARY OF ARGUMENTS

1. SECTION 6A IS APPLICABLE TO THE PETITIONER AS THE PETITIONER IS AN EMPLOYEE

OF THE CENTRAL GOVERNMENT AND PROCEEDINGS AGAINST THE PETITIONER CANNOT

BE QUASHED.

The respondent submits before the Hon’ble Court that Section 6A of the Delhi Special Police
Establishment Act, 1946 is applicable to the petitioner and proceedings against him cannot be
quashed because firstly, petitioner is an employee of the Central Government. This is because
he is a member of All India Services and only Central Government has power to appoint and
remove him by virtue of All India Services Act, 1951 and Article 311 of the Constitution of
India. Further he was dealing with the affairs of Ministry of Urban Development which makes
him a Central Government Employee as pervasive control vests with Central Government.
Secondly, the judicial proceedings against the petitioner cannot be quashed merely for any
procedural irregularity and finally, in arguendo, even if the petitioner is not a Central
Government employee then still, he cannot escape the liability of being accused under § 13(1)
(d) of Prevention of Corruption Act, 1988.

2. THE ARREST OF THE PETITIONER CAN BE CLASSIFIED AS AN “ARREST ON THE SPOT”.

The respondent contends that the instant case comes under clause 2 of § 6A hence no prior
sanction is required. The respondent asserts that firstly the constituents of § 6A(2) are fulfilled
as “on the spot cases” can include trap cases. CBI by virtue of § 6A(2) of the Delhi Special
Police Establishment Act, 1946 can arrest a government official of joint secretary and above
on the spot if direct evidence is present against him. Secondly, the respondent submits that §
6A(2) must be interpreted in a manner to meet the true intention of Legislature when it was
inducted. It is contended that section 6A(2) must not be interpreted literally but harmonious
interpretation must be done to meet the intention of the legislature. The literal interpretation
would frustrate the intention of legislature.

PAGE | VIII
MEMORIAL ON BEHALF OF THE RESPONDENT
3. THE TELEPHONE TAP ON THE PETITIONER WAS VALID AND THE SAME WAS NOT IN

VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PRIVACY.

The telephone tap on the petitioner was laid after complying with the due process of law
under § 5(2) of The Indian Telegraph Act, 1885 and Rule 419-A of The Indian Telegraph
Rules, 1951. The respondent completed all the necessary formalities to tap the petitioner’s
phone and the information obtained by phone tapping could not have been obtained by other
means. Furthermore, the telephone tap in cases of corruption is not violative of Article 21 of
The Constitution of India when due procedure of law has been followed and where a “public
emergency” exists.

PAGE | IX
MEMORIAL ON BEHALF OF THE RESPONDENT
 BODY OF ARGUMENTS

1. SECTION 6A IS APPLICABLE TO THE PETITIONER AS THE PETITIONER IS AN EMPLOYEE OF

THE CENTRAL GOVERNMENT AND PROCEEDINGS AGAINST THE PETITIONER CANNOT BE

QUASHED.

It is humbly submitted before this Hon’ble Court that Section 6A(2) of the Delhi Special Police
Establishment Act, 1946 is applicable to the petitioner and proceedings against him cannot be
quashed because firstly, petitioner is an employee of the Central Government; secondly, the
judicial proceedings against the petitioner cannot be quashed merely because of any procedural
irregularity and finally, in arguendo, even if the petitioner is not a Central Government employee
then still, he cannot escape the liability of being accused under § 13(1)(d) of Prevention of
Corruption Act, 1988.

1.1 The petitioner is an employee of Central Government.

It is contended that § 6A of the Delhi Special Police Establishment Act, 1946 is applicable to
the petitioner as he is an employee of Central Government which can be established on the
basis of following arguments. Firstly, he is a member of All India Services and thus his
appointment and removal is governed by the Central Government. Secondly, the pervasive
control over the petitioner was with the Central Government. Finally, at the time of arrest he
was dealing with the affairs of the Ministry of Urban Development.

1.1.1 Mr. Bhushan is member of All India Services and only Central Government has
power to appoint and remove him.

It is humbly submitted before this Hon’ble court that the petitioner is a member of All India
Services as defined in Article 312 of the Constitution of India which clearly states that
members of Indian Administrative Services (IAS) will come under the purview of All India
Service Act, 1951. The Constitution of India provides for the creation of All India Services
(AIS) common to the Union and the States.1

1
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 971 (14th ed. 2008).

PAGE | 1
MEMORIAL ON BEHALF OF THE RESPONDENT
 The respondent further submits that under the All India Services Act, 1951, it is provided that
the Central Government makes rules for regulating the recruitment and the conditions of
service of persons appointed to the All India Services.2 Moreover, recruitment to these
services is governed by Central Government under Rule 6 of the Indian Administrative
Service (Recruitment) Rules, 1954. It is averred by the respondent that Central Government is
also responsible for framing, interpreting and administering the AIS Rules and Regulations.
Thereby, the appointing power of a member of All India Service is vested with Central
Government.

Further, reliance must be paid to the Article 310 of the Constitution of India which enunciates
the ‘doctrine of pleasure’. As interpreted by the Vigilance Manual in Chapter IX 3 of the
Constitution, this Article provides that a only a Central Government servant holds office
during the pleasure of the President and therefore his tenure could be terminated by the
President at pleasure. Practically, all Government servants, both on the civil and on the
defence side, are covered by this Article.4

It is most humbly submitted Article 311 of the Constitution of India expressly states that “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 posts under the Union or a State shall be dismissed or
removed by an authority subordinate to that by which he was appointed.”

Hence, from the above statutory provisions it is evident that since petitioner is appointed by
Central Government and can be only removed by Central Government. Thus, applying the
basic ‘Hire and Fire Principle’, read in consonance with aforesaid provisions under the
Constitution of India, the petitioner shall be deemed to be employee of the Central
Government.

1.1.2 The Pervasive Control is with the Central Government.

It is humbly submitted before this Hon’ble Court that it is not disputed that a member of
Indian Administrative Services is appointed by the Central Government and that thereafter,

2
Section 3, All India Services Act, 1951.
3
Vigilance Manual, Chapter IX, Regulation 10.3 (February 18, 2013), http://cvc.nic.in/vigman/chapterix.pdf.
4
M.P. JAIN, Supra note at 1, p. 975.

PAGE | 2
MEMORIAL ON BEHALF OF THE RESPONDENT
 such a member is posted to a particular State cadre in accordance with the scheme contained
in the Cadre Rules5. However, it is pertinent to note that the pervasive control over the
member of an Indian Administrative Services throughout his service remains with the Central
Government.6 And even when the officer discharges his functions in the State Cadre, only the
day-to-day administrative control vests with the concerned State Government, but the officer
still remains under the pervasive control of the Central Government.

However, if on any aspect, the view of the Central Government and the State Government
comes into conflict, the rules provide that the opinion of the Central Government shall
prevail.7 Further, in the case of Neera Yadav8 case, the Division Bench of Allahabad High
Court, observed that in respect of a member of Indian Administrative Services, the
controlling authority is Government of India. And, wherever conduct of a member of All
India Services is of concern to both the Governments, namely, State Government
and Central Government, the ultimate prevailing authority is the Central Government and
not the State Government.9

It is humbly submitted before this Hon’ble Court that in the instant case, even though the
petitioner was posted in the Punjab cadre, but still the Central Government was having
pervasive control over the petitioner since the petitioner was appointed by the Central
Government.

1.1.3 Petitioner was working under the Directions of Ministry of Urban Development.

It is humbly submitted before this Hon’ble Court that the petitioner shall be deemed to be
the employee of Central Government since at the time of arrest he was working under the
Ministry of Urban Development. The employment status of the members of All India
Service is determined by serving connection of an officer.

According to Rule 2 of the All India Services (Conduct) Rules, 1968 which are formed in
exercise of the powers conferred by sub-section (1) of section 3 of the All India Services Act,
5
Indian Administrative Service (Cadre) Rules, 1954.
6
Neera Yadav v. CBI, (2206) 1 UPLBEC 601 ¶ 97 [hereinafter Neera Yadav].
7
Rule 3, All India Service (Discipline) Rules, 1969.
8
Neera Yadav, Supra note at 6, ¶ 98.
9
Ibid.

PAGE | 3
MEMORIAL ON BEHALF OF THE RESPONDENT
 1951, the Central Government, “‘Government’ means (i) in the case of a member of the
Service serving in connection with the affairs of the Union, the Central Government;”

The respondent contends that although the petitioner is an officer of Punjab Cadre but the
facts clearly suggest that he was dealing with the affairs related to the Ministry of Urban
Development. This is because firstly since Higher Education is a subject of Government of
India under Entry no. 66 of the Union List. Further the facts do not expressly state that
Department of Hostels come within the Punjab Government. It is submitted that the
Department of Hostels under which petitioner was posted covered all Universities in Punjab
which would include Central Universities as well. Further during conversation with
complainant the petitioner stated that he will try to put a good word in the Ministry of Urban
Development is requisite to conclude that he was functioning and employed under Central
Government and not State Government of Punjab.10

1.2 The findings of the CBI resulting in arrest of petitioner cannot be nullified.

1.2.1 Procedural irregularity does not vitiate the proceedings.

The respondent contends that a mere procedural inquiry cannot vitiate the proceedings against
the petitioner. It is submitted that reliance must be paid to the observation made by the
Hon’ble Supreme Court in the case of Union of India v. P.P. Hinduja and Anr.,11 that “an
invalid investigation does not nullify the taking of cognizance or trial based there on and a
defect or illegality in investigation however serious, has no direct bearing on the competence
or the procedure relating to cognizance or trial.”

Further, in the case of Smt. Rani Kusum v. Smt. Kanchan Devi12 it was held that no person has
a vested right in any course of procedure. He has only the right of prosecution or defence in
the manner for the time being by or for the Court in which the case is pending, and if, by an
Act of Parliament the mode of procedure is altered, he has no other right than to proceed
according to the altered mode. The Court relied on in the English decision of Blyth v. Blyth.13 
It was further held that a procedural law should not ordinarily be construed as mandatory, the
10
Factsheet ¶ 3.
11
Union of India v. P.P. Hinduja and Anr., AIR 2003 SC 3258.
12
Smt. Rani Kusum v. Smt. Kanchan Devi, AIR 2005 SC 3304 ¶ 6 [hereinafter Smt. Rani Kusum].
13
Blyth v. Blyth, (1966) 1 All E.R. 524 (HL).

PAGE | 4
MEMORIAL ON BEHALF OF THE RESPONDENT
 procedural law is always subservient to and is in aid to justice. Any interpretation which
eludes or frustrates the recipient of justice is not to be followed. 14 Procedural law is not to be a
tyrant but a servant, not an obstruction but an aid to justice. 15 Procedural prescriptions are the
handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.16

1.2.2 Quashing of proceedings would frustrate the whole aim of Legislature.

The respondent contends that the petitioner cannot take the defence on the basis of procedural
law. This would frustrate the whole aim of establishment of CBI under Delhi Special Police
Establishment Act, 1946. It is evident that petitioner was involved in corrupt practices and
preliminary investigation revealed that he also demanded bribe not only from Complainant
but also from third parties.17 The act of CBI officials arresting petitioner would be nullified if
the proceedings against him are quashed merely on the ground of procedural irregularities.

It is further submitted that the Hon’ble Supreme Court recently in Dr. Subramaniam Swamy
v. Dr. Manmohan Singh and Ors.18 and earlier in numerous judicial pronouncements has
stated that need of sanction before arrest is aimed at protecting honest officials from vicious
proceedings and not shield corrupt officials or condone their corrupt acts.19 The Apex Court
has held that irregularity in sanction must not give the public servant a carte blanche to
escape from his liability.20 Hence, it submitted that proceedings against the petitioner must
not be quashed.

1.3 Even if petitioner is a State Government employee, his proceedings cannot be

quashed.

The respondent submits that even if for the sake of argument it is assumed that petitioner is an
employee of State Government i.e. Punjab Government, still he cannot take a plea before the
court to quash the proceedings merely on the basis of procedural irregularity. It is contended
14
Shreenath and Anr. v. Rajesh and Ors., [1998] 2 SCR 709.
15
S.C. SARKAR, COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE, 1973 557 (12th ed. 2007).
16
Smt. Rani Kusum, Supra note at 12, ¶ 6.
17
Factsheet ¶ 5.
18
Dr. Subramaniam Swamy v. Dr. Manmohan Singh and Ors., (2012) 1 SCC 1041.
19
Veeraswami v. Union of India, 1973 M L J 660; Air Commodore Kailash Chand v. State,  (1980) 1 SCC 667; P.V.
Narsimha Rao v. The State, 1998 Cri. LJ 2930; State of Orissa and Ors. v. Ganesh Chandra Jew, 2004 Cri. LJ 2011.
20
Kalpnath Rai v. State (through CBI), AIR 1998 SC 201 ¶ 29.

PAGE | 5
MEMORIAL ON BEHALF OF THE RESPONDENT
 that in the case of Prabhu v. Emperor21 and Lumbhardar Zutshi v. King22, the Apex Court
held that if cognizance is, in fact, taken on a police report, initiated by the breach of a
mandatory provision relating to investigation, there can be no doubt that the result of the trial
which follows it cannot be set aside unless the illegality in the investigation can be shown to
have brought about a miscarriage of justice and that an illegality committed in the course of
investigation does not affect the competence and jurisdiction of the Court for trial.

It is humbly submitted before this Hon’ble Court that it is an accepted position of law that
CBI under the scheme of Delhi Special Police Establishment Act, 1946 is required to take
prior sanction while investigating into the affairs of an officer above position of a Joint
Secretary, but if a citizen of a particular State approaches the CBI alleging commission of
such a crime over which CBI has authority to investigate and the commission of such crime
has far reaching consequence not on that State alone, but, on the whole of country, the CBI
can accept the complaint and investigate and only if the accused person succeeds afterwards
in establishing that he suffered real prejudice for taking action by the CBI and not by the State
police and really there has been miscarriage of justice for the action taken by the CBI, the
Court will certainly quash the proceeding holding inter alia that investigation by CBI was
bad.23 Further, CBI had extended its jurisdiction over the State of Punjab by virtue of consent
order passed on February 18, 1963.24 Hence, the respondent had jurisdiction and power to
arrest a person in Punjab.

In the instant case, the petitioner was caught red-handed in a trap set by CBI officials. The
petitioner cannot take the defence of any procedural irregularity unless it is proved beyond all
shadows of doubt that it caused grave injustice to the petitioner. A defect or illegality in
investigation, however serious, has no direct bearing on the competence or the procedure
relating to cognizance or trial.25

21
Prabhu v. Emperor, AIR 1944 SC 73.
22
Lumbhardar Zutshi v. King, AIR 1950 PC 26.
23
Narayan Prasad Sen v. The State of West Bengal, 2007 Cri. LJ 1 [hereinafter Narayan Prasad].
24
Ministry of Home Affairs, Order No. 25/12/62-AVD ( February 18, 1963) [hereinafter Ministry of Home Affairs
Order].
25
Narayan Prasad, Supra note at 23, ¶ 28.

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MEMORIAL ON BEHALF OF THE RESPONDENT
2. THE ARREST OF THE PETITIONER CAN BE CLASSIFIED AS AN “ARREST ON THE SPOT”.

The respondent contends that the instant case comes under clause 2 of § 6A of the Delhi Special
Police Establishment Act, 1946 hence no prior sanction is required. The respondent asserts that
firstly, the constituents of § 6A(2) are fulfilled as “on the spot cases” can include trap cases.
Secondly, it is averred that § 6A(2) must be interpreted in a manner to meet the true intention of
Legislature when it was inducted.

2.1 The constituents of § 6A(2) are fulfilled.

2.1.1 § 6A(2) gives power to CBI to arrest a person of any designation if he is arrested
on the spot.

It is humbly submitted that the instant case squarely falls under § 6A(2) of the Delhi Special
Police Establishment Act, 1946. The act of CBI Officials is protected under § 6A(2) as sub-
section (2) starts with non-obstante clause which reads “Notwithstanding anything contained
in Sub-section (1)...”. This non obstante clause, therefore clearly reveals that bar of inquiry or
investigation without prior approval of the Central Government would not apply to cases
falling under § 6A(2).

If the said § 6A of the Delhi Special Police Establishment Act, 1946 is read as a whole, it can
be seen that the provision makes a clear distinction between two categories of cases viz “cases
involving arrest of a person on the spot” and all other cases. In respect of all other cases not
falling within the ambit of the expression ‘cases involving arrest of a person on the spot’, no
inquiry or investigation can be made without prior approval of the Central Government,
whereas in cases falling under sub-section (2), inquiry and investigation is permissible
without obtaining prior approval of the Central Government.

The petitioner may contend that CBI does not have jurisdiction to arrest a person in the
territorial range of Punjab but the present case CBI officials had the power to make this arrest.
It is further contended that in exercise of the powers conferred by sub-section(1) of § 5 of the
Delhi Special Police Establishment Act, 1946, and in supersession of the order of the
Government of India in the Ministry of Home Affairs Notification No. 25/7/60-AVD dated

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MEMORIAL ON BEHALF OF THE RESPONDENT
 January 21, 1961, the Central Government extended the powers and jurisdiction of members
of Delhi Special Police Establishment (CBI) to state of Punjab.26

2.1.2 The instant case was a trap case and the arrest is an “arrest on the spot”

The respondent contends before the Hon’ble Court that CBI (Respondent) was well within its
powers and functions given to it by the Delhi Special Police Establishment Act, 1946 while
arresting the petitioner. In the instant case, the CBI had set a trap to arrest the petitioner red-
handed and they were successful in doing so. In the case of Manjit Singh Bali v. CBI27 the
Bombay High Court has clearly observed that trap cases would come within the purview of
arrest on the spot. Further, recently in 2012, the Delhi High Court the above observation in the
case of Dr. Anup Kumar Srivastava v. CBI28.

2.1.3 There was direct evidence hence arrest was made on the spot.

It is humbly submitted before this Hon’ble Court that prior to addition of § 6A of the Delhi
Special Police Establishment Act, 1946, CBI had to comply with the directives issued in 1969
which stated that prior sanction was to be given to CBI when a case involved an officer of an
equivalent rank of Joint Secretary and above. This directive was struck off by the Supreme
Court of India in the landmark case of Vineet Narain v. Union of India.29 It is pertinent to note
that even the Apex Court, in paragraphs 45 and 46 in the judgment, observed that where the
accusation was based on direct evidence and did not require any inference to be drawn
depending on the decision making process including trap cases, the Single Directive could not
be applied. This observation of the Supreme Court was applied in Manjit Singh Bali30 case by
Justice V.M Kanade and it was held that “arrest on the spot” would mean cases where direct
evidence has been accumulated by CBI.

It is averred that direct evidence is such evidence, which supports the truth of an assertion (in
criminal law, an assertion of guilt or of innocence) directly, i.e., without an intervening
inference. In the instant case, the CBI had such direct evidence against the petitioner. It is
26
Ministry of Home Affairs Order, Supra note at 24.
27
Manjit Singh Bali v. CBI, 2012 ALL MR (Cri) 171 [hereinafter Manjit Bali].
28
Dr. Anup Kumar Srivastava v. CBI, Bail Appln. 341/2012.
29
Vineet Narain v. Union of India, 1998(1) SCC 226, ¶ 19.
30
Manjit Bali, Supra note at 27.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 pertinent to note that already there were accusations of large scale allegations of corruptions
on the petitioner’s department, during his tenure. 31 Further, after the respondent received
information about the petitioner demanding bribe and illegal gratification 32, further enquiry
was done and resultant of which a trap was set by the respondent in which the petitioner was
caught red handed.33 The acts of the petitioner falls within the range and domains of § 7 of
Prevention of Corruption Act, 1988 and is punishable under § 13(1)(d) of the same statute. 34
The petitioner previously demanded illegal gratification from the complainant and even
reached 4S restaurant with a malafide intention to receive it and later asked the complainant to
keep the bag of money over the toilet seat, thereafter which he was caught red-handed by the
CBI officials.35

Hence, it can be safely deduced that the acts of the petitioner constituted an offence under
Prevention of Corruption Act, 1988 and the respondent being vested with powers to arrest
public servants of Central Government without any approval or sanction of the Central
Government in such cases has acted in accordance with due process of law. Thus, any plea of
the petitioner seeking quashing of the proceedings in the instant case is not tenable.

2.1.4 The Applicant was involved in offence under § 6A(2).

It is humbly submitted before this Hon’ble Court that the expression ‘involving’ in § 6A(2) of
the Delhi Special Police Establishment Act, 1946 would mean cases resulting in arrest based
on direct evidence against the public servant. It is contended that the petitioner was involved
in corrupt practices and subsequently arrested by the respondent on the spot. In this regard,
reliance is placed by the respondent on the judgment of the Hon’ble Supreme Court in the
case of Duni Chand Rataria v. Bhuwalka Brothers Ltd.36 in which it was observed by Justice
P.N. Bhagwati that the word ‘involve’ would mean cases or instances when a chain of events
resulted in happening of an event.

31
Factsheet ¶ 1.
32
Factsheet ¶ 6.
33
Factsheet ¶¶ 4,5,6.
34
ASHOK DHAMIJA, PREVENTION OF CORRUPTION ACT: A DETAILED COMMENTARY 356 (5th ed. 2007).
35
Factsheet ¶ 6.
36
Duni Chand Rataria v. Bhuwalka Brothers Ltd., AIR 1955 SC 182, ¶16.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 It is further asserted that the word ‘involve’, according to the Shorter Oxford Dictionary,
means to ‘enwrap in anything, to enfold or envelop, to contain or imply’. Moreover, the
Hon’ble Delhi High Court, in the Manjit Singh Bali37 case observed that the expressions
‘involving’ or ‘on the spot’ cannot be read in isolation and the entire expression has to be read
in the context of the provisions of § 6A and the object for which they have been used.

The court further held that the object of § 6A(2), is obviously to carve out an exception to
cases where protection is given to those employees under Sub-section (1) and to bring certain
cases mentioned in the said expression out of the purview of the protection granted by Sub-
section (1). The object, therefore, is not to give blanket protection to the employees referred to
in § 6A(1)(a) & (b) and, therefore, if a question is posed as to which are the cases involving
arrest of a person on the spot, the answer certainly would be the cases similar to trap cases.

Thus it can be aptly said that in cases where there is direct evidence of corruption and where
there is direct demand for illegal gratification as laid down under § 7 of the Prevention of
Corruption Act, § 6A(2) would is applicable.

2.2 Section 6A(2) of Delhi Special Police Establishment Act, 1946 must be interpreted to
meet the intention of the legislature.

The respondent asserts that the provision of § 6A(2) must be interpreted in a manner so as to
comply with the intention of legislature. It is submitted that court must interpret the term ‘on
spot’ harmonically and not literally.

2.2.1 Harmonious Interpretation must be accorded to § 6A(2).

It is humbly submitted before this Hon’ble Court that the main intention of legislature behind
enacting Delhi Special Police Establishment Act, 1946 was to create a specialized agency to
investigate complex cases. CBI has anti-corruption wing to tackle the cases of corruption. The
respondent puts forth that § 6A(2) of the Delhi Special Police Establishment Act, 1946
provides for “arrest on the spot” cases where approval from Central Government is not
required. It is the submission of the Respondent that the words ‘involving’ and ‘on the spot’
must not be read in isolation. The petitioner may rely on the Single Bench Delhi High Court

37
Manjit Bali, Supra note at 27, ¶ 23.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 judgment of Dr. RR Kishore v. CBI38 but as clearly observed by Court in Manjit Singh Bali39
case that words “on the spot” must not be given a literal meaning.

It is averred that in the Manjit Singh case, the Hon’ble Delhi High Court, after applying the
general principles of Interpretation of Statutes 40 which is cited by Supreme Court of India)
observed that “The words of statute, when there is doubt about their meaning are to be
understood in the sense in which they best harmonise with the subject of the enactment. Their
meaning is found not so much in a strictly grammatical or etymological propriety of
language, nor even in its popular use, and the object to be attained.”41

It is further submitted that the courts have declined to be bound by interpretation which
frustrates the patent purpose of the statute. The Supreme Court of India in M/s New India
Mills Ltd v. Commissioner of Sale Tax, Bihar42 has observed that “It is a recognized rule of
interpretation of statute that expressions used therein should ordinarily be understood in a
sense in which they best harmonised with the object of the statute, and which effectuate the
object of the Legislature.”

2.2.2 Mischief Rule should be applied in case two interpretations are possible and then
the one which removes mischief must be followed.

The respondent submits that in the present case, Mischief Rule of interpretation can also be
applied. The Apex Court in Carew and Company Ltd. v. Union of India43 has observed that
when two interpretations are feasible, the courts would prefer that interpretation which
advances the remedy and suppresses mischief as Legislature envisioned.

It is humbly submitted that in M. Pentiah and Ors. v. Muddala Veeramallappa and Ors.44, the
Supreme Court cited with approval, the observations of Denning J. from the case of Seaford
Court Estates Ltd. v. Asher45. It was observed that, “when a defect appears, a judge cannot
38
Dr. R.R. Kishore v. CBI, (2007) 142 DLT 702.
39
Manjit Bali, Supra note at 27, ¶ 7.
40
PETER BENSON MAXWELL & ALFRED BRAY KEMPE, THE INTERPRETATION OF STATUTE 76 (12th ed. 2004).
41
Manjit Bali, Supra note at 27, ¶ 18.
42
M/s New India Mills Ltd v. Commissioner of Sale Tax, Bihar, AIR 1963 SC 1207.
43
Carew and Company Ltd. v. Union of India, (1975) 2 SCC 791 ¶ 30.
44
M. Pentiah and Ors. v. Muddala Veeramallappa and Ors., AIR 1961 SC 1107.
45
Seaford Court Estates Ltd. v. Asher, (1949) 2 All E.R. 155 (HL).

PAGE | 11
MEMORIAL ON BEHALF OF THE RESPONDENT
 simply fold his hand and blame the draftsman. He must set to work on the constructive task of
finding the intention of Parliament, and he must supplement the written word so as to give
"force and life" to the intention of the legislature. A judge should ask himself the question
how, if the makers of the Act had themselves come across this ruck in the texture of it, they
would have straightened it out? He must then do as they would have done. A judge must not
alter the material of which the Act is woven, but he can and should iron out the creases.”

2.2.3 Literal Meaning would frustrate the intention of legislature.

The respondent submits that keeping in view the aforesaid principles laid down by the Apex
Court with regard to the interpretation of expressions and words in a statute, the interpretation
of § 6A(2) of the Delhi Special Police Establishment Act, 1946 must be done in a manner
which serves the intention of legislature, that is to stop corrupt practices by senior government
officials.46

It is humbly submitted that for the purpose of interpretation, the provision cannot be split in
two parts and the words ‘on the spot’ cannot be taken out of the context. The respondent
asserts that if the term ‘on the spot’ is read in isolation, then it would render the purpose for
which Sub-section (2) was inserted nugatory because employees of the rank of Joint Secretary
and above normally would not accept bribe on the spot which may happen in the case of
traffic constable or ticket collector or such other categories of employees.47

Therefore, if the said expression is interpreted in a narrow manner, then the very object of the
Legislature in inserting the said Sub-section (2) would be frustrated. The said expression,
therefore, has to be read as a whole in the context in which it has been made and the purpose
and object which it seeks to achieve. The purpose of inserting § 6A is definitely to grant some
protection to employees of the Central Government above a particular rank to a certain extent
but not to grant blanket protection by § 6A(1) of the Delhi Special Police Establishment Act,
1946 and to carve out exception by using the said expression. Further, it can be seen that the
words used are ‘cases involving’ and not just the ‘case involved’. Hence, it can be deduced
that the ambit of the section is wide enough to include various other cases or instances.

46
ASHOK DHAMIJA, Supra note at 34, p. 423.
47
Manjit Bali, Supra note at 27, ¶ 21.

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MEMORIAL ON BEHALF OF THE RESPONDENT
Thus, applying the settled principles laid down in above-mentioned judicial pronouncements,
it can be construed that the petitioner was held by CBI in a trap set by them, which in turn is
included under the “arrest on the spot” cases as stipulated under § 6A(2) of the Delhi Special
Police Establishment Act, 1946. It can be submitted that the entire sequence of events was a
resultant of the efforts of CBI officials’ planning to gather requisite evidence against the
petitioner before arresting him and the arrest of the petitioner in the instant case can be
classified as an “arrest on the spot”.

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MEMORIAL ON BEHALF OF THE RESPONDENT
3. THE TELEPHONE TAP ON THE PETITIONER WAS VALID AND THE SAME WAS NOT IN

VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PRIVACY.

The respondent respectfully submits that the telephone tap laid on the petitioner was valid and
not in violation of the constitutional right to privacy of the petitioner as firstly, the telephone tap
was conducted in accordance with due process of law and secondly, telephone tap in cases such
as the instant case is not in violation of the constitutional right to privacy.

3.1 The telephone tap was conducted in accordance with due process of law.

It is humbly submitted before this Hon’ble Court that firstly, the respondent completed all the
necessary formalities to tap the petitioner’s phone and secondly, the information obtained by
phone tapping could not have been obtained by other means.

3.1.1 The respondent completed all the “necessary formalities” to tap petitioner’s
phone.

The law on telephone tapping in India is governed by The Indian Telegraph Act, 1885, which
grants Government the power to conduct interception of messages or telephone tapping. 48 It is
humbly submitted before this Hon’ble Court that the telephone tap in the instant case was
conducted after complying with the “necessary formalities under the Telegraph Act”.49

In the case of People's Union for Civil Liberties (PUCL) v. Union of India and Anr.,50 the
Hon'ble Supreme Court had laid down the guidelines in the following terms and which are
relevant to the instant case:

“(1) An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued
except by the Home Secretary, Government of India (Central Government) and Home
Secretaries of the State Governments. In an urgent case the power may be delegated to an
officer of the Home Department of the Government of India and the State Governments not
below the rank of Joint Secretary.51

48
Section 5(2), The Indian Telegraph Act, 1885 [hereinafter Telegraph Act].
49
Fact Sheet ¶ 5.
50
People's Union for Civil Liberties (PUCL) v. Union of India and Anr., AIR 1997 SC 568 [hereinafter PUCL].
51
PUCL, Supra note at 50, ¶ 35; Ravi Shankar Srivastava v. State of Rajasthan and Ors. 2005 (2) WLC 612
[hereinafter Ravi Shankar Srivastava].

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MEMORIAL ON BEHALF OF THE RESPONDENT
 All the necessary safeguards as envisaged by the Hon'ble Supreme Court in the aforesaid case
have been incorporated in the Indian Telegraph Rules, 1951,52 and have been duly complied
with in the instant case. The letter authorizing the phone tap had been addressed to Vishnu
Snow directly from the Home Ministry.53 Thus, it is submitted that the phone tap was laid
after following the due process of law.

3.1.2. The information obtained by phone tapping could not have been obtained by
other means.

In PUCL54 case, the Hon'ble Supreme Court has laid down that under Section 5(2) of the
Telegraph Act it shall be seen whether the information which is considered necessary to be
acquired could reasonably be acquired by other means.

It is humbly submitted before this Hon’ble Court that the information gathered through
telephone tapping of the petitioner could not have been obtained by any other means. The
cases of Ravi Shankar Srivastava v. State of Rajasthan and Ors.55 and R.M. Malkani v. State
of Maharashtra56 serve as examples where telephone tapping was held to be justified in cases
of corruption.

Because of telephone tapping of the petitioner, the respondent was able to gather
incriminating evidence against the petitioner for offence of criminal misconduct by a public
servant under the Prevention of Corruption Act, 1988.57 After merely a day of laying the
phone tap, ‘Mr. Vishnu had gathered evidence as to requests being made by Tyrion to third
parties also for kickbacks.’58 Thus, it is humbly submitted that the information received
through phone taps was quick and crucial and thus could not have been satisfactorily obtained
by use of any other means.

3.2 Telephone tap in cases such as the instant case is not in violation of the constitutional

52
Rule 419-A, The Indian Telegraph Rules, 1951.
53
Fact Sheet ¶ 8.
54
PUCL, Supra note at 50.
55
Ravi Shankar Srivastava, Supra note at 51.
56
R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157 [hereinafter R.M. Malkani].
57
Section 13(1)(d) Prevention of Corruption Act, 1988.
58
Fact Sheet ¶ 5.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 right to privacy.

It is humbly submitted before this Hon’ble Court that firstly, the right to privacy can be
curtailed by procedure validly established by law and secondly, public emergency overrides
the constitutional right to privacy.

3.2.1. Right to privacy can be curtailed by procedure validly established by law.

It is humbly submitted before this Hon’ble Court that the interception of conversation though
constitutes an invasion of an individual right to privacy but the said right can be curtailed in
accordance to procedure validly established by law.59 Thus what the Court is required to see is
that the procedure itself must be fair, just and reasonable and non arbitrary, fanciful or
oppressive.60 The Hon’ble Supreme Court also gave judgments over the limitations of this
right.61 As in the case of ‘X’ v. Hospital ‘Z’,62 it was held that “...the right to privacy is an
essential component of right to life envisaged by Article 21. The right, however is not absolute
and may be lawfully restricted for the prevention of crime, disorder or protection of health or
morals or protection of rights and freedom of others.”63 This means this is not an absolute
right and can be curtailed in public interest.64 It also conveys that the CBI has the power to
infringe this right in the interest of people, integrity of nation etc. In the instant case, the
telephone tap was laid with due procedure of law.65

The question whether interception of telephonic message/tapping of telephonic conversation

constitutes a serious invasion of an individual right to privacy has been considered by the
Supreme Court on various occasions.66 In R.M. Malkani67 case, it was held that Article 21
contemplates procedure established by law with regard to deprivation of life or personal
liberty. The telephonic conversation of an innocent citizen will be protected by Courts against
59
Article 21, The Constitution of India; State of Maharashtra v. Bharat Shanti Lal Shah and Ors., (2008) 13 SCC 5,
¶¶ 43-44 citing PUCL (Supra note at 50) [hereinafter Bharat Shanti].
60
Bharat Shanti, Supra note at 59, ¶ 44 citing PUCL (Supra note at 50).
61
M.P. JAIN, Supra note at 1, p. 392.
62
‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296, ¶ 8 [hereinafter Hospital Z].
63
Hospital ‘Z’, Supra note at 62.
64
M.P. JAIN, Supra note at 1, p. 399.
65
Fact Sheet ¶¶ 5,8.
66
ASHISH KUMAR DAS, A. KUMAR DAS & P.K. MOHANTY, HUMAN RIGHTS IN INDIA 71 (3rd ed. 2007).
67
R.M. Malkani, Supra note at 56, ¶ 31; Bharat Shanti, Supra note at 59, ¶¶ 41-42.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 wrongful or highhanded interference by tapping the conversation. The protection is not for the
guilty citizen against the efforts of the police to vindicate the law and prevent corruption of
public servants.68 In the instant case, there is no unlawful or even irregular method in
obtaining the tape- recording of the conversation. Moreover, the telephone tap was conducted
on a public servant on serious charges of corruption.

3.2.2. “Public emergency” overrides the constitutional right to privacy.

It is humbly submitted before this Hon’ble Court that Section 5(2) of the Telegraph Act
requires the occurrence of a public emergency for the exercise of power granted to the
Government i.e. phone tapping.69 The expression “public emergency” has not been defined in
the statute, but contours broadly delineating its scope and features are discernible from the
section which has to be read as a whole. In Sub-section (1) the phrase 'occurrence of any
public emergency' is connected with and is immediately followed by the phrase “or in the
interests of the public safety.” These two phrases appear to take colour from each other. In the
first part of Sub-section (2) these two phrases again occur in association with each other,
and the context further clarifies, with amplification that a “public emergency” within the
contemplation of this section is one which raises problems concerning the interest of the
public safety, the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States or public order or the prevention of incitement to the commission of an
offence. It is in the context of these matters that the appropriate authority has to form an
opinion with regard to the occurrence of a “public emergency” with a view to taking further
action under this section.70

The petitioner was under grave allegations of corruption 71 which inarguably poses a threat to
public order as mentioned in Section 5(2) of the Telegraph Act. Moreover, his demands were
an incitement to the commission of an offence as mentioned in the said section. The demands
of the petitioner might have acted as a catalyst for Ms. Veena, the complainant, to give bribe
to the petitioner to get her work done. Thus, the telephone tap on the petitioner became
68
Dharambir Khattar v. Union of India & Anr., W.P. (Crl.) 1582/2007 [hereinafter Dharambir] citing R.M. Malkani
(Supra note at 56).
69
Hukam Chand Shyam Lal v. Union of India and Ors., AIR 1976 SC 789, ¶ 13.
70
Id; Bharat Shanti, Supra note at 59, ¶ 5.
71
Fact Sheet ¶ 4.

PAGE | 17
MEMORIAL ON BEHALF OF THE RESPONDENT
 necessary to prevent incitement to the commission of an offence. In Ravi Shankar Srivastava
case and R.M. Malkani case, demanding illegal gratification was considered by the Courts as a
situation qualified to be a “public emergency” and validating phone taps.

In the instant case, the petitioner’s conversation was voluntary. There was no compulsion.
The petitioner’s conversation was not extracted under duress or compulsion. If the
conversation was recorded on the tape it was a mechanical contrivance to play the role of an
eavesdropper.72 Thus, it is humbly submitted that the telephone tap was valid keeping in mind
the involvement of the petitioner in corruptive practices.

Section 5(2) of the Telegraph Act, thus justifies the telephone tapping by the respondent who
is the Central Bureau of Investigation on the grounds that the petitioner is a Government
employee. He was engaged in corruptive practices in giving the tenders of construction of
toilets in the universities of Punjab.73 This was reported to the CBI branch of Delhi officer Mr.
Vishnu Snow. It is thus humbly submitted before this Hon’ble Court that it was within the
limits of the powers conferred to the CBI under Section 5 of the Telegraph Act to tap the
petitioner’s phone.

Hence, in light of the law laid down by the Telegraph Act and interpretation of right to
privacy under Article 21 of The Constitution of India by the Courts, it is submitted that the
telephone tap laid by the respondent on the petitioner was valid.

72
Dharambir Khattar, Supra note 68, ¶ 30.
73
Factsheet ¶ 3.

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MEMORIAL ON BEHALF OF THE RESPONDENT
 PRAYER FOR RELIEF

For the foregoing reasons, the respondent respectfully prays before the Honourable Court to
dismiss the petition and allow the proceedings pending before the Ld. Special Judge, CBI, to
continue, and to adjudge and declare as follows:

1. That Section 6A is applicable to the petitioner as the petitioner is an employee of the Central
Government.

2. That the arrest of the petitioner can be classified as an “arrest on the spot”.

3. That the telephone tap on the petitioner was valid and the same was not in violation of his
constitutional right to privacy.

And the Court may pass any other order which it may deem to be fit.

 
 
 
 
 
 

All of which is Respectfully Submitted

Counsels for the Respondent

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MEMORIAL ON BEHALF OF THE RESPONDENT