Case Comment on Priyadarshini Matoo

case
Santosh Kumar Singh vs. State through CBI-
( 2010)9SCC747
Though I know he is the man who committed the crime,
I acquit him, giving him the benefit of doubt.

This shocking statement of the Additional Sessions

Judge, G.P. Thareja in Ms. Priyadarshini Mattoo case,
while acquitting the accused reflects the deplorable
state of our criminal justice system. This is one of the
cases to have triggered public indignation over the
miscarriage of justice at the instance of high profile and
influential accused Santosh Kumar Singh, son of Former
Senior IPS Officer J.P. Singh. Over the years corruption in
the judicial system coupled with political influence has
become so rampant that it has in turn resulted in
distortion of the entire Indian Judiciary.

It is said, Power corrupts and absolute power corrupts

absolutely. It is ironical that the Judiciary itself being
one of the most potent organs of the government is
subdued by the rich and persuasive lot of the society.
Sadly almost all the constitutional safeguards and
restraints on judicial misconduct are now dead.

Background of the case:

Priyadarshini Mattoo was a 25 year old law student, who
was found raped and murdered at her house in New
Delhi on 23 January, 1996. Priyadarshini finished her
school from Srinagar thereafter her family migrated to
Jammu. After completing her B Com from Jammu she
joined Delhi University for her LL.B. course. She had
lodged several complaints of harassment, intimidation
and stalking against the accused Santosh Kumar Singh
who was also a student of LL.B. in campus Law Centre,
Faculty of Law, University of Delhi. The accused had
passed LL.B. from University of Delhi from the said
Campus Law Centre in December, 1994.

Repetitive complaints made by the deceased turned out

to be completely futile in as much as it failed to deter
the accused who continued to harass her. Despite the
earlier two undertakings given by the accused
subsequent to the complaints registered against him by
the deceased at the R.K. Puram and Vasant Kunj Police
Station on 25 February,1995 and 16 August.,1995
respectively, on 06 November.,1995, he again tried to
harass the deceased at the Campus Law Centre. After
this an FIR under section 354 of Indian Penal Code (IPC),
1860 was lodged against him at the Maurice Nagar
Police Station for which he was arrested and
subsequently released on personal bond. The deceased
had also filed a complaint dated 27 October, 1995 to the
Dean, Faculty of Law, and Campus Law Centre stating
harassment. The accused was advised to desist from
such activities .Infact the gravity of the matter was such
that the deceased was advised to meet the Deputy
Commissioner of Police (South West) to whom she
complained against the accused upon which, a Personal
Security Officer was provided to the deceased.

As a result of these, on 30 October ,1995 the anguished

accused out of vindictiveness made frivolous complaints
to the authorities at the Delhi University against the
deceased that she was concurrently pursuing two
courses at the same time. Because of this, the result of
the deceased was withheld by the university which
issued show cause notice to which she was to reply at
the earliest. The accused followed the matter against
the deceased in his personal capacity. In her
explanation, the deceased claimed that she had
completed her M.Com in 1991 and was yet to appear in
her LL.B. III year exam, thereby refuting the charges
levied against her. She also reiterated harassment by
the accused for the past one and a half years from then.
On the fateful day of the murder when the deceased was
alone at her residence at B-10/7098, Vasant Kunj the
accused came at her house. On the arrival of the
security guard Rajinder Singh at the deceaseds
residence it was found that Priyadarshini Mattoo was
lying under the double bed and there was no movement
of her body. Thus an FIR under Section 302 of Indian
Penal Code (IPC) was lodged at his instance at the
Vasant Kunj Police Station. In the statement recorded
under Section 161 of Cr.P.C. Rajeshwari Mattoo, the
mother of the deceased had suspected the accused and
therefore he was joined in the investigation.

In the Trial Court:

The matter was taken up by the Delhi Police but there
after on a request placed by C.L. Mattoo; the deceaseds
father the case was handed over to Central Bureau of
Investigation (CBI) on 25 January, 1996. After a
thorough investigation made by CBI into the matter, on
11 April, 1996, the Central Agency filed charge sheet
against Santosh Kumar Singh. The accused was
challaned in accordance with law. Thereafter the case
came up for hearing and the then Additional Sessions
Judge, S.C.Mittal was pleased to frame charges under
Sections 302 and 376 of IPC. The accused pleaded not
guilty to the charges and claimed trial. On 11 August,
1997 the trial began. On 3 January, 1998 in all; as many
as fifty witnesses were examined in the court. After
taking into account all the circumstantial and
documentary evidence produced by the prosecution, the
trial court on 3 December, 1999 acquitted the accused
giving him a benefit of doubt stating that the CBI had
failed to correctly produce the evidence and had acted
in an unfair manner. Furthermore, it was pointed out
that the DNA report presented by the CBI was fabricated
sand therefore, inadmissible in the eyes of law in view
of Section 45 of the Indian Evidence Act, 1872.

In the High Court:

The trial court judgement took everyone by surprise
more so when the trial court was convinced that there
was no doubt in the prosecution case. The judgement
was erroneous on the face of it in as much as the trial
court had itself observed that, the DNA finger printing
report conclusively establishes the guilt of the
accused. Therefore, in view of the fallacious decision
followed by subsequent huge public outcry, on 29
February, 2000 the CBI filed an appeal in the Delhi High
Court. It was only after six years that the High Court
heard the matter on a day to day basis.

The High Court too shuddered at G.P. Tharejas verdict,

it said, By acquitting the respondent despite being
convinced that there was no doubt in the prosecution
case, the trial court has mauled justice, and its decision
has shocked the judicial conscience of the court.

On 17 October, 2006 the High Court overturned the trial

court verdict of seven years ago and Justice R.S. Sodhi
and P.K. Bhasin patted CBI, the same agency that had
lost its case in the lower court, for proving Santosh
Kumar Singhs guilt beyond any doubt by
unimpeachable evidence.On 30 October, 2006 the Delhi
High Court convicted the accused for the commission of
offences punishable under Sections 302 and 376 of
Indian Penal Code and sentenced him to death.

In the Supreme Court:

On 19 February, 2007 the accused Santosh Kumar Singh
preferred an appeal in the Supreme Court against the
award of death sentence by the Delhi High Court. On 6
October, 2010 the Bench comprising Justices H.S. Bedi
and C.K. Prasad upheld the conviction of Santosh Kumar
Singh in the fourteen year old Priyadarshini Mattoo rape
and murder case. It, however, reduced the punishment
of death sentence to life imprisonment saying that
certain things were in favour of the appellant. The
Bench opined that, the balance sheet was in favour of
Santosh Kumar Singh and the ends of justice would be
met if Santosh Kumar Singhs death penalty is
commuted to life imprisonment.

Analysis of the Case:

The shoddy investigation and tampering of evidence
was the major hurdle faced by the prosecution in the
trial. The clincher was that the DNA test proved rape.
The broken visor of the helmet of Santosh and fracture
in his hand besides the 19 injuries on Mattoos body was
something that conclusively settled the controversy in
favour of the prosecution; so also the several
complaints by Mattoo to the police established motive
and eye witness accounts proved that Santosh was seen
outside Mattoos house minutes before the murder.

The Trial Court in the course of delivering its judgment

had noted that the accused had a motive for the crimes
alleged to have been committed by him as was evident
from the continuous harassment and the personal
undertakings and apologies rendered by him in this
regard more than once. Moreover, the accused was seen
outside the premises of the Faculty of Law, Campus Law
Centre on the forenoon of the day of the murder by
Head Constable Rajinder Singh. The Trial Judge had also
arrived at a categorical conclusion that on 23 January,
1996 in the evening at about 4.50 p.m. the accused was
seen standing outside the flat of the deceased by her
immediate neighbor Kuppuswamy. Vikas Sharma was
the witness who had sold some plastic containers on the
day of incident to the deceased around 4.20 p.m. just
before the accused was noticed outside the flat of the
deceased which showed that the deceased was in her
flat around that time. It had been found to be so by the
Trial Court. Shri Jaideep Singh Ahluwalia, the Security
Supervisor had also seen the accused at about 5.30 p.m.
near the residence of the deceased. The accused was
also noticed by Shri O.P. Singh, Advocate, on his bullet
motor cycle getting out of the parking area of B-10,
Vasant Kunj and proceeding towards Vasant Kunj area
around 5.30 p.m. There was no material on record to
establish that the witnesses had any perverse intention
so as to advance the case of the prosecution in any way
by resorting to tampering.

It had also been accepted by the Trial Court that at that

time the accused was having a helmet with a visor and
later on when the police recovered that helmet of the
accused it was not having the visor but there were some
broken pieces of the visor sticking to the helmet which
pieces later on were found to be having some blood on
it. When examined by the Centre Forensic Science
Laboratory (CFSL), the helmet was in a bad shape at
that time presumably because of the accused having
assaulted the deceased with it with massive force
suggested by the 19 injuries on the person of the
deceased coupled with her three broken ribs. At about
5.40 p.m. the deceased was found dead in her flat. In
the wake of these findings in favour of the prosecution
there was hardly any scope for the acquittal of the
accused.

Moreover, during the investigation when the accused

was medically examined, his reports revealed injuries on
his right hand which he claimed to have sustained on 14
January, 1996. In regard to this when the expert opinion
of Dr .G.K .Choubey of Safdurjung Hospital was sought
for, he said that the injuries appeared to be fresh in
nature thereby contradicting the false plea taken by
Santosh Singh earlier. As per the principles of Law of
Evidence the onus lay upon the accused to rebut the
findings of the Prosecution obtained by expert evidence
that the injuries on the person of the accused were not
more than 48 hours old and the respondent having
failed to do so, the inference of the prosecution in
regard to the injury had to find favour with the Trial
Court which was not the case.

The Trial Court came down heavily on the role of Centre

for Cellular and Molecular Biology (CCMB), Hyderabad
alleging attempt by their senior scientists to suppress
the unfairness of the CBI which was glittering like gold
from the records. The trial court also attacked the role
played by the Delhi Police in its attempt to assist the
accused during investigation and also during the trial. It
further observed that, the approach and the working of
the subordinate staff of Delhi Police suggest that the
rule of law is not meant for those who enforce the law
nor for their near relatives. This view of the Trial Court
suggests that there was deliberate inaction by the
police by virtue of the influential position held by the
accuseds father in the Delhi Police which encouraged
Santosh Kumar Singh to commit the crime with
impunity.

Despite so many circumstances in favour of the

Prosecution, the Trial Court acquitted the accused
stating that the CBI had failed on several counts namely
concealing from the court the evidence collected by it,
fabricating documentary evidence on behalf of the
accused, not following official procedure in conducting
the DNA test, depriving the court of an opportunity to
review it judicially. Coming to think of it, there was
infact no room for doubt in the prosecution case.

Finally after a span of seven years, the Delhi High Court

did a commendable job of awarding death sentence to
Santosh Kumar Singh thereby restoring the confidence
of the general masses in the judiciary. The Delhi High
Court remarked that the findings of the Trial Court were
perverse in nature. The view of the Trial Court as
regards the inadmissibility of the DNA test was not
tenable in the eyes of law in as much as the court ought
to have accorded due and fair consideration to the
reports procured by the expert evidence at the instance
of the CBI. The Delhi High Court ruled out the reason
given by the Trial Court holding the CBI responsible for
having acted in an unjust and unfair manner. There was
no effort whatsoever on the part of the CBI to conceal
any material evidence from the court. Hence, the Delhi
High Court removed the accused from the umbrella rule
of benefit of doubt extended by the Trial Court.

It is said that life is a gift of God. No one, even including

the state has any right to take away life. Beccaria
denounced capital punishment by saying that the state
has no right to put an individual to death, because the
life of the individual was not surrendered to it as part of
the consideration for the social contract. In the instant
case, the arguments advanced by those who do not
favour the punishment of death penalty does not hold
good taking into the consideration the brutality with
which Santosh Kumar Singh had murdered and raped
her. The abominable act committed by the accused was
such that award of death sentence was absolutely
necessary and any sentence less than this is clearly
inadequate. Therefore, the commutation of death
penalty into life imprisonment by the Supreme Court is
absolutely unfair and unjust.

Justice R.S. Sodhi of the Delhi High Court said, If the

Supreme Court says that it is not the rarest of rare case,
then thats it. I felt, while delivering the justice that this
was very serious and as per the circumstances he had
been troubling this girl for years. She had approached
every possible police station and was ultimately given
protection. Yet, he didnt care for the law: he just
barged into her house, raped her and murdered her. I
thought this was the limit.

Balance sheet of aggravating and mitigating factors has

been elucidated both in Bachan Singhs (Bachan Singh
Vs. State of Punjab 1980) and Machhi Singhs (Machhi
Singh Vs. State of Punjab 1983) case. Guidelines have
been indicated by the Supreme Court as to when this
extreme sentence should be awarded and when not. In
short, a balance-sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so, the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between
the aggravating and mitigating circumstances before
the option is exercised to award one sentence or the
other. The rarest of the rare doctrine was laid down in
these cases which provide that life imprisonment is the
rule and death sentence constitutes an exception to the
rule.

In the light of the present case, the pertinent questions

that need to be answered are:-

(a) Was there something uncommon about the crime

which renders sentence of imprisonment for life
inadequate and calls for the death sentence.
(b) Were the circumstance of the crime such that there
was no alternative but to impose death sentence even
after according maximum weightage to the mitigating
circumstances which spoke in favour of the offender.

After a careful examination of the facts of the case it is

clearly evident that the murder had taken place in very
sordid circumstances and nothing short of death
punishment would have met the ends of justice.
Reverting to the facts of the case it is observed that the
accused had mercilessly strangulated the victim with
the heat convector wire. The ghastliness of the murder
is obvious from the post mortem report so also the
marks of scratches on the mouth, neck and the chest of
the deceased coupled with the blood which was oozing
out from her as observed by Inspector Lalit Mohan as on
the day of the incident.

There were no mitigating circumstances indeed in

favour of the accused and in our opinion it is strongly
felt that death sentence was warranted and the
Supreme Court has clearly erred by way of commuting
the death sentence awarded by the High Court into a
sentence of imprisonment for life. The Apex Court
judgement may now set a precedent for future cases
where rape and murder convicts will now serve a life
term.

The cruel manner of killing Priyadarshini justifies the

award of death sentence to Santosh Kumar Singh. In
Nirmal Singh (State of Haryana Vs. Nirmal Singh 1998) ,
it was held that the case fell within the rarest category
and, therefore death sentence was proper. The injuries
showed that they must have been men of high depravity
and brutality denuded of all human feelings.
In the case of Lalrinawas (State of Mizoram Vs.
Lalrinawms 2000) , the accused confessed his crime and
remained firm on his confession throughout; therefore
the death penalty was commuted to sentence of life
imprisonment. In the instant case, there is no such act
on the part of Santosh Kumar Singh which is indicative
of any repentance. On the contrary, he consistently gave
false pleas and faked innocence which only adds to the
aggravation side of the balance sheet.

In addition to these there are a couple of other

aggravating circumstances to be considered in the
balance sheet. The first and foremost being the
incessant harassment of the victim by Santosh Kumar
Singh and his criminal conduct which was brought to the
notice of the police authorities several times. Keeping in
mind his fathers influential position, he fearlessly
landed up in killing the victim and his conduct
thereafter also admits of no mitigation. (Singh 2010)

To quote the Supreme Court, Undoubtedly, the

appellant would have had time for reflection over the
events of the last fifteen years, and to ponder over the
predicament that he now faces, the reality that his
father died a year after his conviction and the prospect
of a dismal future for his young family, on the contrary
there is nothing to suggest that he would not be
capable of reform. In the light of the above observation
and in the absence of any overt action on the part of the
accused relatable to such brooding, the only reasonable
presumption that follows is that of course a period of
fifteen years is a long time to reflect upon ones wrong
doings. But only that much can be presumed and
nothing else. Is the commutation of death sentence by
the Supreme Court justified? Isnt it nothing more than
an abuse of the power vested in the highest court of the
country which the court has most vehemently exercised
in an unreasonable and unjust manner?

The most remarkable feature in the punishment of

death, and that which it possess in the greatest
perfection, is the taking from the offender the power of
doing further injury. Whatever is apprehended, either
from the force or cunning of the criminal, at once
vanishes away. Society is in a prompt and complete
manner delivered from all alarm.

If death penalty is abolished, it would curtail a

considerable expense upon society to maintain
incorrigible offenders for the duration of their natural
lives. Death sentence has a great deterrent effect upon
potential criminals than any penalty because it is
presumably the most frightening. It is also the most
effective preventive punishment. Dangerous members
of society are thereby permanently eliminated.

According to Garofalo, a renowned political philosopher,

elimination of criminals was a sort of moral war for the
good of society. Lambroso, a political thinker observed
that capital punishment should be good as a threat to
habitual and incorrigibles. Similar is the view adopted
by the utilitarians. The hopeless criminal should be
painlessly removed rather than that the stat should
have to maintain him unnecessarily. (Rao 2005) So why
should the State bear the brunt of maintaining the
accused that did not even think twice before committing
such a despicable offence? He neither went to
Priyadarshini family to seek forgiveness nor did he join
any social cause for the victims of rape and sexual
abuse.

Conclusion:
The Indian courts have emerged as the most powerful
courts in the world with virtually no accountability. But
every institution even the courts go wrong. The judiciary
are peopled by judges who are human, and being human
they are occasionally motivated by considerations other
than an objective view of law and justice. It would be
foolish to contend that none of them at least at some
point in time are motivated by considerations of their
own personal ideology, affiliations, predilections, biases
and indeed even by nepotistic and corrupt
considerations. But the Courts cannot afford to award
judgments based on ethical and moral grounds, rather
the bases should be purely legal in character. The role of
a judge is not to read between lines but to offer a fair,
just and reasonable interpretation of question of law
posed before it. Justice may not only be done but it
must also seem to be done. Thus, the judiciary as a
fillip to the nation must strive to deliver justice in all
circumstances without any fear, favour, affection or ill
will.

Bibliography:
# Bachan Singh Vs. State of Punjab. SLP Cr.No. 1732 of
1979 (The Supreme Court, 9 May 1980).
# Machhi Singh Vs. State of Punjab. Cr.Appeal No. 419 of
1982 (The Supreme Court, 20 July 1983).
# Rao, Dr. M.Sriniwas. Political Obligation. New Era Law
Publications, 2005.
# Singh, Hemraj. Matto Judgement. Lawyers Update,
November 2010: 14-17.
# State of Haryana Vs. Nirmal Singh. Cr.Appeal 489 of
1997 (High Court of Punjab and Haryana, 29 September
1998).
# State of Mizoram Vs. Lalrinawms. Cr.Ref. 1 of 1999
(High Court of Gauhati, 23 February 2000).
Should Ratan Tata
be Afforded the
Right to Privacy?
The Ratan Tata case has raised many important questions pertaining to
privacy. This note looks at a few of those questions, and the debate that
centers around them.

Introduction
In 2008 and 2009 conversations between Nira Radia- a professional corporate
lobbyist , and many different individuals were intercepted by Income Tax officials.
The interception was approved by the Ministry of Home Affairs. The interception was
conducted for suspected tax evasion, possible money laundering, and restricted
financial practices. The individuals included: A. Raja, the then Cabinet Minister of
the Ministry of Communications and Information Technology; Ratan Tata, a client of
Nira Radia and Chairman of the Tata group of companies; and various journalists
including: Barkha Dutt, NDTV journalist alleged to have lobbied in support of A.
Rajas appointment as minister, and Vir Sanghvi, editor of the Hindustan Times
alleged to have edited articles reducing the blame in the Nira Radia tapes. Earlier
this year, these conversations were leaked to the media by an unknown source. The
leak exposed a scam to manipulate the upcoming auctioning off of the 2G spectrum.
In response to his leaked conversations with his consultant Nira Radia, Ratan Tata
has filed a petition in the Supreme Court, claiming that his privacy has been invaded.
Tata claims that the conversations were private, and that the tapes should be
withdrawn from the public. He has not objected to the use of the tapes in court,
acknowledging that they were obtained legally. On December 2nd the Supreme
Court issued a notice to restrain the unauthorised publication of the intercepted
tapes [1].

Questions of Privacy
The Nira Radia tapes case raises many important questions about privacy,
wiretapping, transparency and ethics. It will be interesting to see how the court rules
on different issues as the case progresses. First, it will be meaningful to see how the
court responds to Tatas plea for privacy. Indian courts have seen only a handful of
cases that have directly appealed for protection of privacy as a fundamental right
[2]. The type of privacy that has been invaded in this situation is unclear. If one looks
at the privacy invasion as the data that was improperly protected, thus leading to
the leak, the Tax Department may be found to have violated the informational privacy
of Tata. If one looks at the invasion of privacy as the fact that personal contents of
conversations were made public with the intent to expose the 2G scam, the claim is
really one that his personal privacy has been invaded. Because India does not have
a specific legislation on privacy, there is no clear definition of what privacy is, and
whether or not Tata has had his privacy invaded. The decision by the courts will help
to clarify how Indian society defines privacy, and where the line between public and
private falls.

Is the Information Public Knowledge?

Whether or not the information intercepted in the phone conversations is public
knowledge is an important question to answer. Though the 2G spectrum belongs to
the people, and the conversations that were intercepted were planning a scam to
defraud the Indian exchequer, the conversations were meant to be private. So, does
the public have a right to know the content of the conversations, or does Ratan Tata
have the right to privacy. The legislation that addresses the release of public
information, and defines the categories of information that are considered to be
private, is the Right to Information Act 2005. In India in recent years the right to
knowledge has become a cornerstone of Indian civil liberties. The Right to
Information Act 2005 embodies this liberty. The RTI mandates timely response to a
citizens request for government information, and in its preamble affirms the policy
that democracy requires an informed citizenry and transparency of information
which are vital to its functioning and also to contain corruption and to hold
Governments and their instrumentalities accountable to the governed[3]. Under the
Act, public information about or held by the government must be given to citizens
upon request. Unlike in some countries, such as Canada, where the Right to
Information is bolstered by a privacy law [4], the Indian legislation only contains
sections that detail exceptions of data that cannot be disclosed, and the conditions
for third party release. These exceptions are laid out in section 8, and in section 11
release of records to a third party is outlined.

Are the Conversations Considered Public

Knowledge and Would they be Released by an
RTI?
In a recent interview Prashant Bhushan, Supreme Court Advocate responded to a
similar question with the following statement [5]:
Bhushan: "Firstly the conversations which have come out in the public domain are
not private conversations. They are conversations between Nira Radia with various
public servants, with various journalists etc in her official capacity as a paid
professional lobbyist and fixer for her principles.Therefore, there is hardly anything
personal in these conversations. These are all professional conversations or
conversations about deal making, fixing, subverting public policy etc.These
conversations would be available to every citizen even under the Right to
Information Act because the only objection that one could raise would be on the
ground of 81(J) of the Right to Information Act which says - information which relates
to personal information, the disclosure of which has no relationship to any public
activity or interest. This information has relationship to public activity or interest. It
also says - or which would cause unwarranted invasion of the privacy of the
individual unless the public authority is satisfied, unless the information officer is
satisfied that the larger public interest justifies the disclosure of such an information.
In this case there is overwhelming public interest which warrants the disclosure of
this information because this shows all kinds of deal making, fixing going on."
As Bushan has pointed out, it is possible to make the argument that the taped
conversations should be categorized as public knowledge. They took place between
public officials and journalists, and pertain to an issue that deeply impacts the public
as a whole. Thus, a preliminary question that should be asked is whether Tatas
conversations would be revealed through an RTI, or whether his conversation would
fall under the exemption of personal information found in section 8(j):
Information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the Central Public Information Officer
or the State Public Information Officer or the appellate authority, as the case may be,
is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.
It is interesting to note the structure of this exemption. By the use of the word or
the legislation suggests that unwarranted invasion of individual privacy may trigger
the exemption, even if the information has a relationship to a public activity or
interest. But the added caveat says that the larger public interest could justify the
release of even purely private information. In addition, what constitutes personal
information is never defined in the legislation. Thus, whether Tatas conversations
were personal in nature will have to be determined by the courts. Even if the nature
of Tatas wiretapped conversations was deemed not to be personal information, there
still is an argument that they could still not be released to the public through an RTI,
because Tata is not a Tax Department official, and the RTI requires disclosure of
information about the Tax Department or officials in the tax department, not
information about individuals who are under investigation by the Tax department.

Was the Leak of the Tape Legal?

Though the recording of the tapes by the Tax Department appears to be legal under
the Telegraph Act 1885 section 5(2), the leak of the tape was not. Section 5(2) reads:
Section 5(2) (2) 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 authorised 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.
Though the Telegraph Act does not lay out specific procedures as to how wiretapped
information is to be protected and secured, under section 23 and 24 it is not
permitted for any person to illegally obtain the contents of an intercepted telegraph.
23. Intrusion into signal-room, trespass in telegraph office or obstruction If any
person
1. without permission of competent authority, enters the signal-room of a
telegraph office of the Government, or of a person licensed under this Act, or
2. enters a fenced enclosure round such a telegraph office in contravention of
any rule or notice not to do so, or
3. refuses to quit such room or enclosure on being requested to do so by any
officer or servant employed therein,or
4. willfully obstructs or impedes any such officer or servant in the performance
of his duty, he shall be punished with fine which may extend to five hundred rupees.
24. Unlawfully attempting to learning the contents of messages If any person
does any of the acts mentioned in section 23 with the intention of unlawfully learning
the contents of any message, or of committing any offence punishable under this
Act, he may (in addition to the fine with which he is punishable under section 23) be
punished with imprisonment for a term which may extend to one year.

Is it Important that the Leak was Illegal: A

Question About the Public Good
Clearly, from the above clauses, and in this situation, the Tax Department could
argue that firstly they are not responsible for the leak, and that the illegality of the
release of the tapes is subservient to the need to protect public safety. But what
constitutes the greater good? In the case of Babu Ram 8 Verma Vs. State of Uttar
Pradesh (1971) the Supreme Court has interpreted that the expression public
interest as an act beneficial to the general public and an action taken for public
purpose[6]. When considering whether the information is for the public good, the
simple answer seems to be yes, the exposure of the 2G scam does benefit the
public interest, but this should not be the complete answer. The reason that there
are laws to regulate the dissemination of information is to protect information from
being presented in a way that prejudices a person or discloses information that the
public does not have a right to know. It is courts not individuals who should
decide that the public does have a right to know before the information is
disseminated. The information on the tapes could have been brought to the publics
attention by other - legal - means. Namely, the Tax Department could have filed for a
new warrant to use the wiretapped information pertaining to the 2G scam, and
disclosed the materials in connection with the Comptroller and Auditor General of
India.
Concerns about Privacy and the Right to
Information: Not a Balance, but a Partnership
The concern that privacy will be used to weaken transparency and to conceal crimes
and corruption is often voiced as an obstacle to instituting a firm privacy law. Privacy
is not a shield, and should not be misunderstood for one. A privacy legislation
should bring clarity to the Right to Information. It should create a concise framework
and understanding of what information is always acceptable to disclose, and what
information is not acceptable to disclose without court authorization. In this situation,
a privacy law could have clarified that conversations among private citizens are
presumptively private, and that a court must determine otherwise. Though many
people believe that the right to privacy and the right to transparency is a balance in
which one right will always subordinate the other, this is not necessarily true. For
instance if we look at how the two rights are at work when a voter is about to go to
the polling stations, it is easy to see how they are related. The right to privacy can be
understood, inter alia, as the right to be safe in ones own identity. This is crucial for
voting. If you look at this with focus on the candidate for election, there is a both the
need to know as much information about that individual in order to make a informed
choice, but if too much, unrelated information is known about a candidate, the
election could be compromised.

Conclusion: Will Ratan Tata be Afforded the Right

to Privacy?
In conclusion, the Nira Radia and Ratan Tata case raises many fundamental
questions about privacy. In his white paper on privacy Vakul Sharma pointed out two
important cases that could pertain to this situation. The first case is the case of
Peoples Union for Civil Liberties (PUCL) v. Union of India6, the Supreme Court held
that the telephone tapping by Government under S. 5(2) of Telegraph Act, 1885
amounts infraction of Article 21 of the Constitution of India. Right to privacy is a part
of the right to life and personal liberty enshrined under Article 21 of the
Constitution. The said right cannot be curtailed except according to procedure
established by law[7]. It will be interesting to see if the courts follow a similar
reasoning in this case, because though the tap was legal, the leak was illegal. Or,i f
exceptions will be made under the assumption of the greater public good. The
second important case was State v. Charulata Joshi, in which the Supreme Court
held that the constitutional right to freedom of speech and expression conferred by
Article 19(1)(a) of the Constitution which includes the freedom of the press is not an
absolute right. The press must first obtain the willingness of the person sought to be
interviewed and no court can pass any order if the person to be interviewed
expresses his unwillingness[8]. Perhaps the courts will instead follow the logic in
this case, and rule that the press had no right to publish the recorded and that by
doing so, Ratan Tatas privacy was invaded. No matter what the courts decision is, it
is clear that in light of the Nira Radia case, the UID, and many other arising
situations India needs to come to a decision about whether it wants privacy
legislation, and, if so, what a privacy legislation should look like.
Bibliography:
1. http://en.wikipedia.org/wiki/2G_spectrum_scam
http://economictimes.indiatimes.com/news/politics/nation/On-Tatas-plea-apex-court-
sends-notice-to-govt /articleshow /7028580.cms
http://www.moneycontrol.com/news/management/ratan-tataright-to-privacy-
_502063.html
http://economictimes.indiatimes.com/news/politics/nation/Phone-taps-should-not-
be-leaked-Chidambaram/articleshow/7036765.cm
2.The following are a few cases that pertain to privacy: R. Rajagopal v. State of Tamil
Nadu5, Peoples Union for Civil Liberties (PUCL) v. Union of India6, Gobind v. State
of M.P.
3.The Right to Information Act 2005. Preamble.
4.The Canadian Access to Information Act was created in 1985, and is meant to
complement the Privacy Act
5.http://www.moneycontrol.com/news/management/ratan-tataright-to-privacy-
_502063.html
6.Chakraborty, B.K. RTI and Protection of Individual Privacy. Tripura Information
Commissio
7.Sharma, Vakul. White Paper on Privacy Protection in India. Section 5
8.Sharma, Vakul. White Paper on Privacy Protection in India. Section 3

aw On Phone-tapping In India
February 4, 2015 by raghavi 1 Comment

By Priyan Garg, Amity Law School, Noida

EDITORS NOTE:-

The recent times have exposed the diabolic methods used by government agencies
all over the world for the greater good of national security. Deployment of such
techniques is invasive of the fundamental right to privacy that citizens are entitled to.
In a democracy such as India, in the light of the recent controversies such as the
Nira Radia case as well as the Rupert Murdoch case, it has become imperative for
the Courts to develop a legal framework on the extent to which phone-tapping can be
allowed and the purposes for which it is conducted. More importantly, it is crucial for
the Courts to lay down rules and regulations pertaining to their admissibility as
evidence.
INTRODUCTION
Art.21 of the Indian Constitution says that No person shall be deprived of his life
or personal liberty except according to procedure established by law.

The expression personal liberty includes right to privacy. A citizen has a right to
safeguard his personal privacy, plus, that of his family, education, marriage,
motherhood, child bearing, and procreation, among other matters.

Phone tapping means secretly listening or / recording a communication in telephone

in order to get information about others activities. It is also known as wire-tapping in
some countries (primarily in USA).[i] Phone Tapping can only be done in an
authorized manner with permission from the department concerned. However, if it is
undertaken in an unauthorized manner then it is illegal and will result in prosecution
of the person responsible for breach of privacy.

PROCEDURE FOR PHONE-TAPPING

IN INDIA
Telephones along with other communication devices find mention under Entry 31 of
the Constitutions Union List and is based on Entry 7 in the Federal List of the
Government of India Act 1935.[ii] As Seervai[iii] has explained, the G.I. Act itself had
taken the note of the progress of Science in Entry 7, List I, which ran as Posts and
telegraphs; telephones, wireless, broadcasting and other like forms of
communication and Entry 31[iv], List I of our Constitution retained the entry, hence
the need to interpret the word telegraphs flexibly to include telephones, wireless,
broadcasting etc. did not arise.[v]

Both, the Central and the State Governments have a right to tap phones
under Section 5(2) of Indian Telegraphic Act, 1885. There are times when an
investigating authority/agency needs to record the phone conversations of the person
who is under suspicion.[vi] Such authorities are supposed to seek permission from
the Home Ministry before going ahead with such an act. In the application specific
reasons have to be mentioned. In addition, the need for phone tapping must be
proved. Then the ministry considers the request and grants permission upon
evaluating the merits of the request.

Every agency fills out an authorization slip before placing a phone under
surveillance. For the States, it is the State Home Secretary who signs this.
Telephones of politicians cannot be tapped officially[vii]-a qualifier on the slip says
the surveyed person is not an elected representative. Today, every cellular service
provider has an aggregation station which is a clutch of servers called mediation
servers (because they mediate between the cellular operators and the law
enforcement agencies) to intercept phones. There are two kinds of interception
facilities available today-Integrated Services Digital Network (ISDN) and the leased
line. In ISDN facility, a mediation server intercepts a call and then transmits it through
a Primary Rate Interface (PRI) line to the office of a government agency. Also, the
police can listen to the phone on their PRI line and store the recording to attached
computers. A sound file of the intercepted call is also recorded and stored in the
mediation server, simultaneously.

SAFEGUARDS AGAINST PHONE-

TAPPING
Procedural Safeguards
By the 1990s scandal after scandal erupted in India and several had to do with what
people perceived as the illegal tapping of their phones. The Opposition parties had
alleged that their phones were tapped by Government machinery at the behest of the
ruling party. Hence, this resulted in the Peoples Union for Civil Liberties [PUCL]
appealing to the Supreme Court to clarify the law regarding electronic tapping in
India. In the case, the Petitioners primary contention was that sufficient procedural
safeguards to rule out the arbitrary exercise of power under the Act should be read in
to Section 5(2). Thus, although Section 7(2)(b) of the Telegraph Act,1971 empowers
the Government to prescribe rules providing for the precautions to be taken for
preventing the improper interception or disclosure of messages, till then no such
rules had been framed by the Government. Further, the Petitioner NGO also alleged
that the amendment made to Section 5(2) of the Telegraph Act in 1971 was
devastating as it permitted phone tapping not just for public safety, public
emergencies, public order and the sovereignty and integrity of India, but also the
incitement of offences.

In this high profile case, the highest Court in the land ruled that wiretaps constituted
a serious invasion of an individuals privacy. Further, the Supreme Court recognized
the fact that the right of privacy is an integral part of the fundamental right to
life enshrined under Article 21 of the Constitution. This right can also be traced
to Article 17 of the International Covenant on Civil and Political Rights
[ICCPR] to which India is a signatory. But, the right is only available and enforceable
against the state and not against action by private entities. If, a person is talking on
the telephone, he is exercising his or her right to freedom of speech and expression.
Thus, telephone tapping would also infringe Art 19(1)(a) unless it came within the
restrictions on this right set out in Art 19(2). It is significant to note that the Supreme
Court while not wanting to strike down the system of phone tapping altogether,
wanted to soften the law by introducing guidelines that were to be followed by the
government. These guidelines define who can tap phones and under what
circumstances. The Union Home Secretary, or his counterpart in the states, can only
issue an order for a tap. Further, the government is also required to show that the
information sought cannot to be obtained through any other means. Also, the Court
mandated the development of a high-level committee to review the legality of each
wiretap. But the decision to set up a review system was severely criticized.
Prominent lawyers dismissed it as enabling those who authorize taps to review their
own orders with a conclave of colleaguesbeing arbitrary, secretive, and shabby
and an insult to the protection of privacy and civil liberties.

Pursuant to the procedural safeguards formulated by the Supreme Court in

the P.U.C.L case, the Central Government brought out an amendment to the Indian
Telegraph Rules, 1951 ,by inserting Rule 419-A vide G.S.R. 123 (E), dated
16.02.1999. The amendment to Indian Telegraph Rules, 1951 also failed to remove
unguided interception of messages as the decision taking authority still remained
with the executive branch of the Indian Constitution.

Overall, it appears that the Court has done a decent job and has at least laid the
groundwork for a regulatory system. It is an accepted fact that every arbitrary and
seemingly intrusive law can be effectively softened with a foolproof mechanism to
ensure its proper and legal implementation. But, given the fact that Indian laws suffer
from the problem of a significant implementation deficit; only time will tell whether
these guidelines are honored or not.

Substantive safeguards
In 1997, the Supreme Court, in response to a petition filed by Justice Sachar in the
PUCL case, laid down that Right to Privacy guaranteed under Article 21 is subject to
reasonable restrictions which might be imposed by the State. Reasonable restrictions
can be imposed by the state in -the interests of national sovereignty and integrity,
state security, friendly relations with foreign states, public order or for preventing
incitement to the commission of an offence.

Supreme Court while upholding the constitutionality of Section 5(2) in P.U.C.L.

case, recognized the absence of procedural safeguards for the substantive
provisions of the above mentioned Section and placed reliance on Maneka Gandhi
case to stress upon the importance of procedural backing to any substantive
provision dealing with the fundamental right of individual, where it was opined:
Procedure which deals with the modalities of regulating, restricting or even rejecting
a fundamental right falling within Article 21 has to be fair, not foolish, carefully
designed to effectuate, not to subvert, the substantive right itself. Thus, the
requirement of procedural safeguards for the provisions of Section 5(2) becomes
significant in the light of right to privacy guaranteed by Article 21, Constitution of
India, 1950. Interception of private conversation, void of just and fair procedure,
would infringe an individuals right to privacy assured under Article 21, which might
render the substantive provision, allowing interception, as unconstitutional.

Justice Kuldip Singh succinctly stated[viii]:

The first step under Section 5(2) of the Act, therefore, is the occurrence of any
public emergency or the existence of a public-safety interest. Thereafter the
competent authority under Section 5(2) of the Act is empowered to pass an order of
interception after recording its satisfaction that it is necessary or expedient so to do
in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii)
friendly relations with foreign States, (iv) public order or (v) for preventing incitement
to the commission of an offence.[ix]

In K.L.D Nagasree v. Government of India[x], while reiterating the view of the

Court in P.U.C.L. case, it was held:

A bare reading of the above provision shows that for the purpose of making an order
for interception of messages in exercise of powers under Sub-Section (1) or Sub-
Section (2) of Section 5 of the Telegraph Act, 1885, the occurrence of any pubic
emergency or the existence of a public safety interest is the sine qua non.

The Act also provides safeguards against illegal and unwarranted interference in the
telegraph and telephone mechanisms. Accordingly, Section 25 states that, any
person intending to intercept or to acquaint himself with the contents of any message
damages, remove, tampers, with or touches any battery, machinery, telegraph line,
post or other thing whatever, being part of or used in the working thereof shall be
punished with imprisonment for a term which may extend to three years or with a
fine, or both.

Recourse
Unauthorized tapping is in violation of the right to privacy and the aggrieved
person can file a complaint in the Human Rights Commission.
 An FIR can be lodged in the nearest Police Station when unauthorized phone
tapping comes into the knowledge of the person.

Additionally, the aggrieved person can move the Court against the
person/company doing the Act in an unauthorized manner under Section 26
(b) of the Indian Telegraphic Act which provides for 3 year imprisonment for
persons held for tapping. The person (s) can also be prosecuted for
authorized tapping but sharing of the data in an authorized manner.

ADMISSIBILITY OF TAPED
CONVERSATIONS AS EVIDENCE
Controversial Judgment in the Malkani Case
The case of R.M. Malkani v. State of Maharashtra[xi] revolved around the question
of whether criminal prosecution could be initiated against a person on the basis of
certain incriminating portions of a telephone conversation that he had with another
individual. In the case, the Appellant was the Coroner of Mumbai and was trying to
obtain illegal gratification of Rs. 15,000 from an honest doctor from whom he planned
to implicate in a case involving the negligent death of a patient. This doctor was not
interested in paying the bribe and instead contacted the Anti-Corruption Bureau of
the Police. The doctor then, on the directions of the police officials, proceeded to
have a phone conversation with the Appellant where they discussed the amount of
money to be paid, and also the place of delivery, etc. This conversation was recorded
without the knowledge of Malkani and charges were filed against him on the basis of
the incriminating statements that he had made.

The Supreme Court held that having another person listening in on a conversation
was a mechanical process and that there was no element of compulsion or coercion
involved which would have otherwise violated the Act. With regards to the
admissibility issue, the Court appreciated the method, terming it a mechanical
eavesdropping device. However, then perhaps realizing that it was wrong, it hastily
added that -it should be used sparingly, under proper direction and with
circumspection. The tape-recorded evidence was compared with a photograph of a
relevant incident and based on this assumption it was decided that Sections 7 and 8
of the Evidence Act [1872] would not bar the admission of improperly obtained
evidence. Hence, what the Apex Court did was to hold that illegally obtained
evidence would be admitted in Court since the eavesdropper neither subjects the
person to duress nor interferes with his privacy. While giving the verdict, Ray, J., was
influenced by the American case law on the subject. Reliance was placed on the
judgment of the US Supreme Court in the case of Roy Olmstead v. United States
of America[xii], which had by then been overruled by the Berger and Katz cases. In
the Olmstead case the doctrine adopted, was that surveillance without trespass and
without the seizure of any material fell outside the constitutional ambit. Hence, Ray,
J. was of the opinion that the tape recording of the conversation would not be
repugnant to Articles 20(3) and 21 of the Indian Constitution.

Following the dictum laid down in the Malkani case many judgments have been
passed by the Courts accepting illegally obtained evidence for the purposes of
conviction. In the case of S. Pratap Singh v. State of Punjab[xiii], the Supreme
Court allowed the tape record of a telephonic conversation between the Chief
Ministers wife and a doctor to be admitted as evidence to corroborate the evidence
of witnesses who had stated that such a conversation had taken place. Further,
in Yusufalli Esmail Nagree v. State of Maharashtra[xiv], a conversation that was
recorded by means of a tape recorder placed in a room was admitted in evidence. In
the case, the Appellant Nagree had offered a bribe to a municipal clerk Munir Ahmed
Sheikh. The clerk Sheikh informed the police who then laid a trap at his residence by
concealing a voice recording apparatus in the room where the bribe amount was to
be paid. Then, this tape was allowed as evidence by the Court to corroborate the
Sheikhs testimony. The Court noted that if a photograph taken without the
knowledge of the person being photographed, applying the same principle to the
case of a tape-record of a conversation that is unnoticed by the talkers, will also
become relevant and admissible. The Apex Court in delivering the judgment was
heavily influenced by the decision of an English Court in the case of R v. Maqsud
Ali[xv]. In that case two persons suspected of murder went voluntarily with the Police
Officers into a room where unknown to them, there was a microphone connected
with a tape recorder in another room. Thereafter, when they were left alone, the
accused persons had a conversation during which some incriminating remarks were
made. The Court decided that the tape-recording of the incriminating evidence had
to be admitted as evidence. In N. Sri Rama Reddy v. V.V.Giri[xvi], better known as
the Presidential Election case the Petitioner had alleged that a certain Jagat Narain
had tried to dissuade him from contesting the election. Then, their tape-recorded
telephone conversation was then produced in Court to disprove Narains claims that
the incident never took place. Here the Court utilized the conversation to show that
a witness might be contradicted when he denies any question tending to impeach
his impartiality [Section 153 of the Indian Evidence Act] and thus observed that the
tape itself would become the primary and direct evidence.

The problem is that while this may represent the easy way out for the police, these
short cuts imperil the liberties of the citizens. Further, no respect has been attached
to the means by which the end could be achieved.. Sadly the safeguards suggested
were wholly inadequate and could not compensate for the fact that mechanical
eavesdropping had been freed from all constitutional restraint. This development is
especially important when one takes into account the amendment of 1971 that
granted the Government the license to tap any phone conversation it wished without
being made accountable or answerable to anybody. Safeguards in the form of
guidelines were only framed two decades later when a voluntary organization took
the initiative and approached the Supreme Court for assistance.[xvii]

NEW FACETS OF PHONE-TAPPING IN

INDIA
In Rayala M. Bhuvaneswari v. Nagaphamender Rayala[xviii], the Petitioner filed a
divorce petition in the Court against his wife and to substantiate his case sought to
produce a hard disc relating to the conversation of his wife recorded in U.S. with
others. The wife denied some portions of the conversations. The Court observed that
the purity of the relation between husband and wife is the basis of marriage, and the
husband was recording her conversation on telephone with her friends and parents
in India without her knowledge. Hence, this is clear infringement of right to privacy of
the wife, where a husband is of such a nature and has no faith in her wife, even
regarding her conversation with her parents. In such circumstances, the institution of
marriage itself becomes redundant. Also, there should be an element of trust
between a marital relationship and in any case the right of privacy of the wife is
infringed by her husband by recording her conversation on telephone to others. Such
a husband who has resorted to illegal means which are not only unconstitutional but
also immoral, cannot later on, try to rely on the evidence gathered by him by such
means.

Later on, the Radia tapes controversy related to the taped conversations of
politicians, industrialists and corporate, bureaucrats, officials, journalists and aides,
that were taped by the Indian Income Tax Department in 200809. These tapes led
to government and public accusation that these calls evidence the planning of the 2G
spectrum scam and other criminal and unconstitutional activities.
COMPARISONS WITH OTHER
JURISDICTIONS
The British Perspective
English law has evolved considerably since the blanket endorsement of any and all
methods to obtain evidence-a method propounded in the Leatham case, even though
one might be inclined to disbelieve this statement in the light of an observation in R v
Sang[xix], where it was stated that there was no discretion to refuse to admit
relevant admissible evidence on the ground that it was obtained by improper or unfair
means. The Court is not concerned with how it was obtained. For the moment, this
statement must be placed in the background, in order be state that as the law stands
now it is not illegal for the police to bug someones phone but it is forbidden to use
the information gleaned in a Court of law.

The law concerning admissibility of stolen evidence in England is a lot more flexible,
as opposed to India. A notable factor of significance in determining whether tapping
may be appropriate is the seriousness of the offence being investigated. When a
serious crime is committed coupled with significant breach of the code, evidence
obtained is admissible. In R v Khan[xx] , evidence was deemed admissible with the
Court acknowledging that the seriousness of the crime being investigated was of
importance and was seen to outweigh the improper conduct of the police. Further, in
that case trespass to property, breach of privacy and also damage to such; along
with the usage of listening devices in private premises were found in the conduct of
the police. Hence, the value of evidence that the police anticipate discovering
through improper conduct may be of significance in justifying a decision to so act.
Lord Steyn, an English Judge, acknowledged that while no Court will approve readily
of trickery and deception being used, there are some circumstances in which one
has to recognize, living in the real world that this is the only way in which some
people are ever going to be brought to trial. Additionally, there is no consensus as
to what should be admissible in evidence and what should not though as recent
cases reveal there seems to be a growing tendency to move away from the
exclusionary principle, in favor of admitting tape-recorded evidence in a Court of law.

Prior to the Regulation of Investigatory Powers Act [RIP] 2000, interception of

communications in the UK was governed by the Interception of Communications Act
1985 (IOCA). This Act (IOCA), put in place a statutory framework for interception of
communications in order to meet the criticisms leveled at the UK in 1984 by the
European Court of Human Rights in the case of Malone v UK[xxi]. In this case the
European Court of Human Rights noted that in the absence of a proper legislative
framework in the UK the practice of telephonic interception was insufficiently
grounded in law to allow it to be justified under Article 8(2) of the European
Convention on Human Rights.

The RIP Act of 2000 repealed the prior legislation in this area (the Interception of
Communications Act 1985). Section 2(2) of the RIP Act 2000 dealt with the
intercepting of a communication in the course of its transmission by a
telecommunication system. Additionally, there is control exerted by the Home
Secretary over the granting of telephone intercept warrants to the Director General of
Intelligence and Security. Such authorization is provided under an Interception
Warrant which must name or describe either one person as the Interception Subject
or a single set of premises where the interception is to take place. It must be noted
that RIP Act establishes a Tribunal which can investigate on whether there was a
warrant and whether it was properly issued. Thus, where it is found that an
Interception Warrant has been improperly issued, the Tribunal has power to order
compensation and the destruction of the recorded material. Additionally, if the
interception takes place without a warrant, then the Director of Public Prosecution
must consent to criminal prosecution. Hence, in the UK it is now an offence for any
person intentionally and without lawful authority to intercept any communication in
the course of its transmission through a public telecommunication system and
except in specified circumstances through a private telecommunication system.
Also, though private telephone tapping is an offence, it can be stated that the English
law is now on par with the law in India (POTA) and that in the USA (PATRIOT Act).

United States of America

The United States of America has tended to favor the exclusionary rule of evidence
but more attention has been given to the right to privacy enshrined in the American
Constitution. The exclusionary rule states that evidence obtained by the
Government in violation of a defendants constitutional rights may not be used by the
prosecution in a criminal trial. This principle is based on the theory that it is a central
function of the Courts to encourage lawful action by the State. Also, every State in
the USA has its own laws that lay down procedures relating to telephone tapping.
Additionally, at the Federal level the Crime Control and Safe Streets Act of 1968, has
prohibited the willful interception of telephone communication by means of any
mechanical, electronic, or other device without an applicable exemption.
Furthermore, Federal statutes do not enjoy superiority over State laws unless the call
or the tap crosses state lines . Thus, while the U.S. federal law only requires one-
party consent, there are many states which have accepted different laws. 38 States
in the USA have adopted the one-party notification system while the remaining 12
insist on the two-party notification method.

In the Olmstead case, the majority judgment was in favor of adjudicating the issue of
telephone tapping outside of the domain of right to privacy and the Fourth
Amendment. The judgment is notable because of the famous dissent expressed by
Justice Brandeis who observed, the right to be let alone- the most comprehensive of
rights and the right most valued by civilized men. To protect that right, every
unjustifiable intrusion by the government upon the privacy of the individual, whatever
the means employed, must be deemed a violation of the Fourth Amendment. This
was cited in 1967 when the Supreme Court in the Katz case declared that the
protection of the Fourth Amendment would be extended to all recording of oral
statements overheard, without any technical trespass under property law, i.e. using
methods such as telephone tapping. In overruling the Olmstead judgment, the Court
held that recording by police of conversation in public telephone booth was in
violation of the Fourth Amendment because the speaker had a reasonable
expectation of privacy in the booth. However, in the following decades, there were as
many as 32 judgments that expressed consenting and dissenting opinions with Katz
judgment. Recent case law in the USA confirms the fact that A recorded
conversation is generally admissible unless the unintelligible portions are so
substantial that the recording as a whole is untrustworthy. Also, Courts have relied
on the exclusionary rule and have maintained that it promotes the respect for
constitutional guarantee, by removing the incentive to disregard it. Although, English
law appears to have accepted even taped conversations in foreign languages as
evidence- in the R v. Maqsud[xxii] case [where the conversation recorded was in the
Punjabi dialect]. But, the Courts in the US have appeared more reluctant to do the
same. The attacks of September 11, 2001 and the events that followed necessitated
the passing of a new law- the PATRIOT Act. This Act, like POTA in India, liberalized
the telephone tapping procedures and aimed at making wiretapping an easier and
less procedure-ridden operation. Additionally, it extended the authority of the Federal
Bureau of Investigation [FBI] to spy on Americans for intelligence purposes. Under
Section 218, the FBI was given the power to secretly conduct a physical search or
wiretap , primarily to obtain evidence of crime without proving probable cause of
crime. This provision goes against the spirit of the Fourth Amendment to the
Constitution that requires the Government to prove to a judicial officer that it has
probable cause of crime before it conducts an invasive search [like telephone
tapping], for evidence of any crime.

Recently, the Obama administration has come under increased attack when it
revealed that it had been keeping tabs on the phone records of millions of Americans
for the past few years despite the justification that it was done in light of national
security.

Position in Canada
Under S.186, Criminal Code, any investigative authority has to apply for a judicial
authorization to intercept a private communication that is contingent on satisfaction of
the Judge to whom such an application has been made. S.184, Criminal Code
however, allows a police officer to proceed with interception of a private
communication without a judicial authorization in exigent circumstances.

Judicial Outlook: Wiretapping

Investigative measures such as wiretapping have been dealt with strictly by the
Canadian Supreme Court. To effectuate the restrictive approach, the Court curtailed
the scope of the expression other investigative procedures are unlikely to succeed
in S.186(1)(b), Criminal Code49 which authorized the police officers to wiretap on
failure of other investigative procedures.

The British Columbia Supreme Court, in R. v. Araujo[xxiii] , held that under S.

186(1)(b) of the Code, wiretapping may be accepted as an appropriate investigative
tool where other investigative procedures are unlikely to succeed. The Court laid
down a few requirements:

In order to meet the investigative necessity requirement, the applicant must

establish in the affidavit that, practically speaking, there is no other reasonable
alternative method of investigation, in the circumstances of the particular criminal
inquiry.

Henceforth, even in times of investigative necessity, the applicant needs to establish

in the affidavit that there is no other investigative tool available besides wiretapping
for the collection of evidence.[xxiv]

Wiretapping without Judicial Warrant is invalid

The Supreme Court of Canada in a recent judgment, has ruled that Section-184,
Criminal Code54which authorizes the police officers to intercept a private
telecommunication without a judicial warrant, is constitutionally invalid.

Judge Davies while declaring the provisions of S. 184 to be constitutionally invalid

mooted the concept of constitutional compliant implementation process for the
consideration of the legislature to amend the specific provision. He held that the
existence of exigent circumstances giving rise to a reasonable apprehension of
serious harm will be properly balanced with the need of safeguarding individuals
right to privacy if the interception of communications is limited to very short periods
by the constitutionally compliant implementation process, allowing judicial
consideration of the situation at the earliest possible time.

The cardinal rule requires the investigating authorities to first intercept those private
communications that may be lawfully intercepted pursuant to S. 184(c) and
immediately apply to the Court for a warrant as there is no certainty as to how long
the investigation may take and an individuals privacy cannot be kept at stake for any
unspecified period of time.

COMMON FINDINGS
The significance of a judicial warrant to intercept private telephonic conversations of
an individual has been emphasized in the judicial pronouncements of the American
as well as the Canadian Courts. Even in the most compelling and demanding
circumstances, the Court has been reluctant to discard the crucial qualification of a
prior Court warrant for wiretapping. The Courts, while harmonizing laws related to
national security and an individuals privacy, have often held that the right of an
individual to privacy cannot be put to risk due to uncertainty of the time period
involved in such investigations.

CONCLUSION
The vast strides that have been made in the field of technology in the recent past
have brought people closer like never before. So, as long as criminals and terrorists
seek to misuse technology in pursuance of their evil motives, Governments all over
the world will continue to use technology to invade our private spaces. Hence, this
brings us to the question; does it take a thief to catch a thief? Then, should States
imperil the liberty and the right to privacy of entire populations in order to apprehend
a miniscule number of dangerous deviants? The Human Rights activists and liberal
intellectuals believe that Privacy is too important a right to surrender to the State
without a fight. The decision of the Supreme Court in the Malkani case was
disappointing because it left the police free to steal evidence and the Court to admit
the stolen evidence. It is useful to note that Justice Holmes suggested in 1928 in his
dissent in the Olmstead case, that it is a less evil that some criminals should escape
than that the Government should play an ignoble part. Permission for telephone
tapping in the Malkani case was given without taking into consideration a regulatory
mechanism that could serve the purpose of preventing the excesses that one
normally associates with laws in our Country that give the Government wide powers.

There is also a growing body of opinion both in India and abroad that supports
telephone tapping and describes it as a necessary evil. The emergence of terrorism
on a global scale has made most nations enact tough anti-terror legislations like the
PATRIOT Act in the USA and the Indian POTA (currently repealed). These laws
curtail civil liberties greatly and their most important provisions deal with telephone
tapping. Additionally, Governments feel that this is the most effective method to
combat the menace of terrorism- by pre-empting any terrorist strikes by making
proper use of the information obtained by the electronic eavesdropping procedures.
The fact remains that everyone condemns telephone tapping but no one refrains
from using it when needed. The above is particularly true in cases of politicians like
Richard Nixon in the USA and Indian leaders like Rajiv Gandhi, and Chandra
Shekhar, who at some point or the other have been either the victims or the
beneficiaries of telephone tapping.

Both sides to the argument have valid reasons for clinging on to their views on the
subject. No one view has been accepted as the correct one but the fact of the
matter is that electronic eavesdropping is here to stay. Thus, the best that can be
done is to evolve comprehensive regulatory mechanisms to soften the impact of the
States intrusion into our private spaces. In addition, there is also an urgent need
especially in India, to come up with guidelines focusing on the admissibility of
different types of evidence in Courts of law. Plus, the new Central Monitoring
System(CMS) has been made operational from April 2013.The CMS would further
help empower Government agencies to tap phones without authorization. Hence,
effective safeguards need to be evolved at once otherwise the Right to Privacy
guaranteed under Article 21 of the Constitution is in serious jeopardy.

Edited by Raghavi Viswanath

[i] http://www.ssrn.com.Last Visited on:08.03.2013

[ii] See HM Seervai, Constitutional Law of India, vol 3, 4th edn, NM Tripathi, 1996, pg
2332.

[iii] ibid

[iv] Entry 31, Schedule VII, Constitution of India: Posts and telegraphs; telephones,
wireless, broadcasting and other like forms of communication..

[v] Vikram Raghavan, Communications Law in India,1st Edn., 2007, pg 109

[vi] Pandey J.N, ,(Faridabad) Allahabad Law Agency,Ed:IX,2003, pg.no.207

[vii] Report of Standing Committee on Home Affairs

[viii] Peoples Union of Civil Liberties v. Union of India, AIR1997 SC 568

[ix] at paragraph 23

[x] AIR 2007 AP 102

[xi] R.M. Malkani v. State of Maharashtra AIR 1973 SC 157

[xii] Roy Olmstead v. United States of America 277 U.S. 438 (1928)

[xiii] S. Pratap Singh v. State of Punjab AIR 1964 SC 72

[xiv] Yusufalli Esmail Nagree v. State of Maharashtra AIR 1968 SC 147

[xv] R v. Maqsud Ali [1965] All. ER. 464

[xvi] N. Sri Rama Reddy v. V.V.Giri AIR 1971 SC 1162

[xvii] Supra, see note 9.

[xviii] Rayala M. Bhuvaneswari v. Nagaphamender Rayala AIR 2008 AP 98.

[xix] R v Sang [1980] AC 402

[xx] R v Khan [1994] NLJR 863

[xxi] Malone v UK [1979] 2 All ER 620

[xxii] R v. Maqsud [1966], 1 QB 688, CCA

[xxiii] R. v. Araujo, 2000 Carswell BC 2440

[xxiv] ibid

Filed Under: Indian Evidence Act, Information Technology Law, International Human Rights
Law, Media & Cyber Law, Public International LawTagged With: phone-tapping, right to
privacy, telegraph act
Jessica Lal : A case of Indian Realism
To many who study India, it has become a tad trite to describe this complex nation-state as one that is filled
with contradictions. Attuned observers know that what India has accomplished during its fifty- plus years
of independence is nothing short of astounding. As serious, if not more so of a problem, but one that has
received passing attention by most scholars, is the inefficiency of the countrys judicial system. We all
know about the judgement of Jessica lals murder case has come as a closure of something. Dozens of
people witnessed the killing inspite of that all the nine high profile accused walked off like free birds. With
efforts of media and her family members, people have become aware about misuse of power by politicians,
bureaucrats and public outrage has build up across the country over the acquittal of all the nine accused.

Jessica lal was a model in New Delhi, who was working as a celebrity barmaid at a crowded socialite party
when she was shot dead on 29 April 1999. Dozens of witnesses pointed to Manu Sharma, the son of vinod
Sharma, a wealthy congress politician in Haryana, as a murderer. In the ensuring trial, and a number of
others were acquitted on 21 February 2006. Following intense media and public pressure, the prosecution
appealed and the Delhi high court conducted proceedings on a fast track with daily hearings over 25 days.
The lower court judgments was found guilty of having murdered Jessica lal. He was sentenced to life
imprisonment on 20 December 2006.

During the summer of 1999, leading socialite bina ramani had been organizing Thursday special nights,
at her newly opened tamarind court restaurant, at qutub colonnade, a refurbished haveli overlooking the
qutub minar in mehrauli.

On 29 April 1999, it was the seventh and last Thursday Special of the season; also being celebrated was the
foreign visit of Bina Ramanis Canadian husband Georges Mailhot, for a period of six months. Though the
restaurant was yet to receive its liquor license, drinks could be bought through discreetly marked QC
coupons, and on that night, several models and friends were serving drinks at the Once Upon A Time bar,
including Jessica Lal, Bina Ramanis daughter Malini Ramani, friends shavan munshi, and others.

Manu Sharma along with amrinder singh gill, a general manager of coca-cola bottling unit in new Delhi,
alok khanna, a colleague of amrinder, and vikas yadav, a son of rajya sabha member, d.p.yadav reached
tamarind court at11:15 pm. As it was busy night, the drinks were soon over, at about 2 a.m. manu Sharma
asked for a drink , which Jessica refused; he then tried to offer a thousand rupees, which see refused as
well. Though there are many versions of what happened next, sometime soon, the inebriated and enraged
manu Sharma shot at Jessica twice at point blank range ,the first bullet hitting the ceiling. The second one
proved to be fatal, as it hit Jessica.

Then on 3rd August1999, delhi police filed the charge sheet in the court of metropolitan magistrate, where
manu Sharma was named the main accused charged under section 302, 201, 120(b) and 212 of indian
penal code and sections 27,54 and 59 of arms act. While other accused, like Vikas Yadav, Coca-Cola
Company officials Alok Khanna and Amardeep Singh Gill (destroying evidence of the case and
conspiracy); were all charged variously under sections 120(b), 302, 201 and 212 of the IPC (for giving
shelter to the accused and destroying evidence).

The case went up for trial in August 1999. Four of the witnesses who had initially said they had seen the
murder happen eventually turned hostile. Shayan munshi , a model and friend who was serving drinks
beside Jessica Lall, changed his story completely; as for earlier testimony recorded with the police, he said
that the writing was in Hindi, a language he was not familiar with, and it should be repudiated. Also, it
appears that the cartridges used in the murder were altered. Although the gun was never recovered, these
cartridges were for some reason sent for forensic evaluation, where it turned out that they had been fired
from different weapons. This led to a further weakening of the prosecutions case.
After extensive hearings with nearly a hundred witnesses, a Delhi trial court headed by Additional Sessions
Judge S. L. Bhayana, acquitted 9 accused in Jessica Lall Murder case, on 21 February 2006. Those
acquitted were, Manu Sharma,Vikas Yadav, Manus uncle Shyam Sundar Sharma, Amardeep Singh Gill
and Alok Khanna, both former executives of a multinational soft drinks company, cricketer Yuvraj Singhs
father Yograj Singh, Harvinder Chopra, Vikas Gill and Raja Chopra. The judgment faulted the police for
deciding on the accused first and then collecting evidence against him, instead of letting the evidence lead
them to the murderer. Since the prosecution had failed to establish guilt beyond doubt, all nine accused
were acquitted.

After the verdict many experts pointed fingers at the flaws in the Indian Evidence Act of 1872, especially
Sections 25-29: No confession made by any person whilst he is in the custody of a police officer, unless it
be made in the immediate presence of a Magistrate, shall be proved as against such person. Though, the
clauses were initially added for the protection of the defendants from giving confession under police
torture, it was later exploited by many a guilty defendants as well, as in this case, where many a witnesses
withdrew their testimony, after first giving it to the police during interrogation.

After an immense uproar, hundreds of thousands e-mailed and smsed their outraged on petitions
forwarded by media channels and newspapers to the president and other seeking remedies for the alleged
miscarriage of justice. On 25 March 2006, the Delhi High Court admitted an appeal by the police against
the Jessica Lall murder acquittals, issuing non-bailable warrants against prime accused Manu Sharma and
eight others and restraining them from leaving the country. This was not a re-trial, but an appeal based on
evidence already marshalled in the lower court.

On 19 April 2010, the Supreme Court of India has approved the life sentence for the guilty. The two judge
bench upholding the judgement of the delhi high court stated that, The prosecution has proved beyond
reasonable doubt the presence of Manu Sharma at the site of the offence.

As we can see inspite of all its success, Indias democracy is at risk of becoming de-legitimized because of
increasing lack of faith many Indians have in the judicial process. Yet the problem is that in the
democracy, the judiciary is constituted to serve as the counter-majoritarian protector of minority interests.
Now that the courts are also seen by many as a futile forum in which to bring about social change, it is a
little wonder why those who are aware of the turmoil within the Indian legal system fear that this great
democratic experiment is encountering one of its biggest crises to date.

RELEVANT CASES

There are many such incidents which have taken place, just like Jessica lal in our Indian legal system. One
such incident is priyadarshini mattoo case. Priyadarshini matto ) was a 25 year old law student who was
found raped and murdered at her house in new delhi on January 23, 1996. On October 17, 2006, the Delhi
High Court found Santosh Kumar Singh guilty on both counts of rape and murder and on October 30 of the
same year sentenced him to death. On October 6, 2010, the supreme court of india commuted the death
sentence to life imprisonment. Santosh Kumar Singh, the son of a Police Inspector-General, had earlier
been acquitted by a trial court in 1999, and the High Court decision was widely perceived in india as a
landmark reversal and a measure of the force of media pressure in democratic setup. This decision went in
favor because the facts were not presented correctly in the lower court. The intense media spotlight also led
to an accelerated trial, unprecedented in the tangled Indian court system.

The acquittal of Santosh Singh in 1999 had led to a massive public outcry and the investigating agency
CBI, under considerable pressure, challenged the judgment in the delhi high court on February 29, 2000.
Public pressure mounted greatly after an acquittal verdict in the Jessica case, where a number of accused
including politicians son manu sharma were released despite the murder taking place in a high-society bar
in the presence of dozens of people. The case is one of several in India that highlight the ineffectiveness of
traditional criminal law system, especially when it comes to high profile perpetrators, including the manu
sharma acquittals.

Another incidence which also show the mockery of our judicial system is nitish katara case. nitish katara
was a 24 year old indian business executive in delhi, who was murdered in the early hours of February 17,
2002, by vikas yadav the son of influential criminal-politician d.p. yadav. Nitish had recently graduated
from the Institute of Management Technology, Ghaziabad, where, he had fallen in love with his
classmate, bharti yadav, sister of Vikas. The trial court held that Nitishs murder was an honour
kiling because the family did not approve their relationship. Vikas and Vishal Yadav were later found
guilty by the trial Court and awarded life sentence on 30 May 2008.

Vikas and Bharti Yadavs father, D. P. Yadav, is a noted criminal-politician, the unrivalled don of western
Uttar Pradesh. Before entering politics, D. P. Yadav had racked up nine murder charges, and was
implicated in a bootlegged liquor sale which killed 350 people in the early 1990s. Since 1989, he has
served several terms as minister in the state government with mulayam singh yadav. In 2004, he became a
member of the Indian Parliament under the bharatiya janata party but such was the ensuing scandal that the
party threw him out within daysMost recently, he narrowly won the uttar Pradesh assembly
elections,2007 from sahaswan (margin of 109 in 114,000 votes cast). Bhartis mother, Umlesh Yadav, is
also a state legislator, representing neighbouring bisauli.

The Yadav family never liked Bhartis liaison, and Nitish had received threats several times. However, he
was an idealist, and believed in standing up to injustice.On the night of 17 February 2002, Nitish and
Bharti were attending a common friends wedding, where Bhartis brother, Vikas and a cousin were present
as well. From there, Nitish was taken for a drive by Bhartis brother Vikas and Vishal Yadav, and never
returned. Nitishs fatal mistake was that he agreed to go with them, apparently thinking that Vikas really
wanted to talk and sort out the differences between them; he failed to sense that the hidden motive behind
the drive was solely to end Bhartis love tangles with him. Three days later, his body was found beside the
highway; he had been battered to death with a hammer, diesel poured on him, and set aflame.

The ensuing trial followed the trajectory of many cases involving money and muscle power in India. A
number of respectable witnesses, including key friends of both Nitish and Bharti, repudiated their initial
testimony. However, owing to intense media scrutiny, and also the strength of the evidence, a conviction
ensued.

Another incidence which shows how the Indian courts have realized about the importance of women in our
society and also the change which is required in our law. In bodhisatwa gautam vs subhra chakraborty
(1996) the supreme court awarded an interim compensation of Rs 1000 per month to the victim of rape
until her charges of rape are decided by the trial court. Justice saqhir ahmed observed that unfortunately, a
women in our country, belongs to a class or group of society who are in a disadvantaged position on
account of several social barriers and impediments and have therefore, been victims of tyranny at hands of
the men with whom they, under the constitution enjoy equal status. The court also further held that rape
is a crime against basic human rights and is also violative of the victims most cherished of the
fundamental rights, normally, the right to life contained in article 21.

Another such incidence which relate how are Indian courts works through giving decisions is through
shriram food and fertilizers case. there was leakage of chlorine gas from the plant resulting in death of one
person and causing hardships to workers and residents of locality. This was due to the negligence of the
management maintenance and operation of the caustic chlorine plant of the company. The matter was
brought before the court through PIL.
Further the court held that legal system of a developing nation cannot afford to subject itself to a distant
rule which was developed at such a distant time when science and technology was not so developed. It
also held that application of exceptions to strict liability is inapplicable. The court held that when an
industry is involved into hazardous or inherently dangerous activity, then it is absolutey liable in case any
accident mishap. The court basically tried to held the difference between strict liability and absolute
liability and how the courts give their decisions which are beneficial to the society.

Indian realism also tells us about how the court decides validity to law. Citing the example of suneel jaitely
vs state of haryana , the reservation of 25 seats for admission to m.b.b.s. and b.d.s. course for students who
were educated from classed 1st to 8th in common rural schools was held to be violative of article14 and
invalid as the classification between the rural educated and urban educated students for this purpose was
wholly arbitrated and irrational having no nexus to the object sought to be achieved of providing extra
facilities to students coming from schools to enter medical college. Therefore we can see that how
decision making by the court is also the form of law making.

We also come to know that Indian realism contains some characteristics found in western democracies. But
it is not so much that the rulings from the Indian courts have run contrary to the interests of democracy.
Rather the time it takes to receive a verdict is so long that most social policy movements opt not to engage
in the legal process. In effect,Such disregard for the judicial system, as we will discover, puts into question
what role the rule of law plays within the Indian democratic society.

In the conclusion the judiciary must be the institution for redress when there is curtailment in the operation
of those political processes ordinarily to be relied upon to protect minorities. There should be substantive
changes to be made in both Indian civil and Indian criminal procedure codes. As already seen, the current
codes allows for endless appeals in cases being continued for decades or simply never heard. In addition
india desperately needs more judges and more physical courts. Finally, a more accountable system of
alternative dispute resolution could provide structural assistance for those group that wish to resolve issues
in a less adversarial, perhaps even more efficient manner

Jessica Lal Murder: SC

clears hostile ballistic
expert who was
extremely confused,
not hostile [READ
JUDGMENT]
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 LalJessicaLal murder case hostile witness Prem
Sagar Manocha the ballistic expert who was charged for perjury
by the Delhi high court in May 2013 was cleared of the charge
by the Supreme Court on Wednesday.

A bench of Chief Justice of India TS Thakur and Justice Kurian

Joseph said that Manocha had been extremely confused about
the question asked of him at trial, and had not given a voluntary,
let alone deliberate deposition, before the court. Therefore, it
was unjust and unfair to attribute oblique motives to him.

Capstone Legal partner Ashish Kumar Singh briefed senior

advocate KV Viswanathan for Manocha who, at the time of the
alleged offence, was the Rajasthan State Forensic Science
Laboratorys deputy director.

In the landmark murder case the Delhi high court, in 2006, had
convicted 10 persons for the 1999 murder of Delhi-based model
and actor Jessica Lal. The Supreme Court, in 2010, upheld the
convictions including that of main-accused Manu Sharma who had
fired gunshots at Lal at the party where she, as a bartender, had
refused to serve him a drink. Sharma is the son of Haryana
Congress leader Vinod Sharma.

Manocha, in his capacity as an expert at the year 2000 trial in the

murder case, had changed his stand in court. The Delhi police had
asked for his opinion on whether the bullets fired at Jessica were
from the same firearm.

In his written statement he had said that a conclusive opinion on

the question was not possible in the absence of the firearm for
testing in the laboratory. In his oral deposition before the trial
court he said that the bullets appear to have been filed from
different firearms.
The Delhi high court, on 20 December 2006 initiated perjury
proceedings against 32 hostile witnesses in the case, including
Manocha whose somersault, the court believed, was calculated
to let the accused Manu Sharma off the hooks as by the time he
stepped onto the witness box the defence had formed its definite
plan about a two weapon theory.

Viswanathan argued before the Supreme Court that Manochas

case is not even a borderline case of perjury since he only
tendered his expert professional opinion.

The Supreme Court observed:

We fail to understand how the stand taken by the appellant, as

above, attracts the offence of perjury. As we have already
observed above, the appellant has all through been consistent
that as an expert, a definite opinion in the case could be given
only if the suspected firearm is available for examination.

It is nobodys case that scientifically an expert can give a definite

opinion by only examining the cartridges as to whether they have
been fired from the same firearm. It was the trial court which
insisted for an opinion without the presence of the firearm, and in
that context only, the appellant gave the non-specific and
indefinite opinion. An expert, in such a situation, could not
probably have given a different opinion.

The bench further went on to caution against initiating perjury

proceedings against experts without giving the experts evidence
a closer scrutiny , that too especially when the expert himself
has lodged a caveat regarding his inability to form a definite
opinion without the required material. It said that the difference
in opinion in this instance was not sufficient to reject the evidence
from Manocha and call him hostile. It added:

The duty of an expert is to furnish the court his opinion and the
reasons for his opinion along with all the materials. It is for the
court thereafter to see whether the basis of the opinion is correct
and proper and then form its own conclusion.