1 R Reserved on :

02. 02.2024 Pronounced on :

22. 04.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE22D DAY OF APRIL, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.24119 OF2022(GM-RES) BETWEEN: DR. S.M.MANNAN S/O S.SURULI RAM AGED ABOUT56YEARS RESIDING AT A-1104, EXOTICA APARTMENT BEJAI MAIN ROAD, BEJAI MANGALURU - 575 004. ... PETITIONER (BY SRI SANDESH J.CHOUTA, SENIOR ADVOCATE A/W., SRI SUHAS C. S., ADVOCATE) AND: CENTRAL BUREAU OF INVESTIGATION (ANTI-CORRUPTION BUREAU) NO.36, BELLARY ROAD DENA BANK COLONY, GANGANAGAR BENGALURU - 560 032 REPRESENTED BY SPECIAL PUBLIC PROSECUTOR HIGH COURT BUILDING2BENGALURU - 560 001. ... RESPONDENT (BY SRI. P.PRASANNA KUMAR, SPL. PP) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF CR.P.C., PRAYING TO QUASHING THE SOURCE REPORT, THE RESULTANT, F.I.R BEARING R.C.NO.16(A)/2019 DATED2209.2019 AT ANNEXURE-C AND THE CHARGE SHEET IN SPL.C.NO.1161/2020 FILED BY THE RESPONDENT CENTRAL BUREAU OF INVESTIGATION, ANTI-CORRUPTION BUREAU, BENGALURU AT ANNEXURE-B FOR THE OFFENCES PUNISHABLE UNDER SECTION120B OF THE INDIAN PENAL CODE, 1860 READ WITH SECTION7 8 AND9OF THE PREVENTION OF CORRUPTION ACT, 1988 ARRAIGING THE PRESENT PETITIONER AS THE ACCUSED NO.1, PENDING ON THE FILES OF THE HONBLE XXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES, BENGALURU (CCH-34) (ANNEXURE-A). THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR

ORDER

S ON0202.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

The petitioner is before this Court calling in question registration of FIR in RC No.16(A)/2019 and a charge sheet filed thereon by the Central Bureau of Investigation (Anti-Corruption Bureau) (‘CBI’ for short) in Special Case No.1161 of 2020 pending before the XXXII Additional City Civil & Sessions Judge and Special 3 Judge for CBI cases at Bengaluru for offences punishable under Section 120B of the IPC and Sections 7, 8 and 9 of the Prevention of Corruption Act, 1988 (‘the Act’ for short).

2. Shorn of unnecessary details, facts in brief germane are as follows:- It is the case of the prosecution that one Smt. W.Gladys Jayanthi, Deputy Superintendent, CBI, ACB, Bengaluru directs the petitioner to implement cancellation of licence of one LPG storage unit located in Ramanagara District. This happens in the month of July 2019. On 08-07-2019 and 23-07-2019 the petitioner in turn communicates to the Head of the CBI reporting that Smt. Gladys Jayanthi has demanded illegal cancellation of the licence of the LPG storage unit. After the said complaint to the higher up, the petitioner visits Smt. Gladys Jayanthi with concerned documents explaining as to why he could not execute the instructions of cancellation of licence as mentioned supra. Smt. Gladys Jayanthi directs inspection of M/s Sanghvi Cylinders Private Limited along with two others. The others are accused No.2 and accused no.3. The inspection is conducted on 18-09-2019 and 19-09-2019. 4

3. During the pendency of further orders with regard to investigation, orders were passed by the Secretary, Ministry of Home Affairs to intercept mobile phone of the petitioner. These orders were also on 2 days i.e., on 22-08-2019 and 18-09-2019. It is alleged that on 20-09-2019 one M. Santha Kumar is said to have called the petitioner and the petitioner then demanded `50,000/- and the same was agreed to be paid by M. Santha Kumar on visiting his office on 23-09-2019. Just the previous day i.e., on 22- 09-2019 a crime comes to be registered against the petitioner and two others by the CBI for offences punishable under Sections 7, 8 and 9 of the Act. On the next day i.e., on 23-09-2019 the petitioner is said to have accepted illegal gratification of `50,000/- from one Rishab Bipin Desai who is arrayed as accused No.3. The house of the petitioner was searched and no other item except ` 50,000/- was recovered from his house and mahazar was drawn. The CBI, after investigation, file a charge sheet against the petitioner and four others for offences as afore-quoted adding the offence under Sections 7, 8 and 9 of the Act. On 29-12-2020, the concerned Court takes cognizance of the aforesaid offences against the petitioner and others. The petitioner is knocking at the doors of 5 this Court, calling in question the filing of the charge sheet against him in the subject petition.

4. Heard Sri Sandesh J.Chouta, learned senior counsel appearing for the petitioner and Sri P. Prasanna Kumar, learned Special Public Prosecutor appearing for the respondent.

5. The learned senior counsel representing the petitioner Sri Sandesh J.Chouta would vehemently contend that the petitioner refused to succumb to the pressure and harassment of Smt. Gladys Jayanthi and, therefore, it is an act of taking vengeance upon the petitioner for not having obeyed the direction to cancel the licence of Gas Cylinder storage unit these events have taken place. The learned senior counsel would submit that the telephone of the petitioner could not have been intercepted contrary to the provisions of the Indian Telegraph Act and the Rules and the Information Technology Act and the Rules. It is his submission that a telephone can be intercepted only on grounds where there was public emergency, public safety element involved and any other condition of public interest. It is the submission of the learned 6 senior counsel that interception orders passed by the Ministry of Home Affairs are illegal and were not placed before the Review Committee, as is necessary in law within seven days from the date of inception order.

6. The other submission is that there is no approval granted for registration of an FIR as obtaining under Section 17A of the Act. It is his further submission that, prima facie, ingredients necessary for invocation of Section 7 of the Act is conspicuously missing in the case at hand, as the alleged illegal gratification as found in the charge sheet is said to have been demanded for an undue advantage to the tune of `50,000/- from accused No.2 and there is no other material produced to demonstrate, even in the charge sheet, that the petitioner had demanded money for some undue advantage from accused No.2.

7. Per-contra, the learned Special Public Prosecutor Sri P.Prasanna Kumar representing the CBI would contend that the petitioner except making allegations against Smt. Gladys Jayanthi has not placed any material to show that there was forceful illegal 7 demand to close or cancel the licence of the LPG storage unit. He would submit that Section 17A of the Act would not come into play in the case at hand, as it would be necessary only when a public servant takes a decision or makes any recommendation in the discharge of his official duty. It is only then, Section 17A would become necessary. It is the submission of the learned counsel for the respondent that the petitioner was found in possession of Rs.50,000/-, which accused No.3 admits to have paid and the identification of such payment is based upon the same envelope found in the cupboard of the petitioner, at the time of search conducted. The learned counsel would further vehemently refute the submission that there is no case made out against the petitioner of demand and acceptance. The telephonic conversations which were intercepted are clearly indicative of the fact that the petitioner had demanded money which was agreed to be paid by accused No.2 and executed through the accused No.3.

8. Insofar as the matter being placed before the Review Committee, the respondent has sought time to place entire proceedings, but only a letter written by the Department of 8 Telecommunications dated 21-07-2023 is placed on record, holding that the records of the Review Committee are confidential and thus, it would not be in public interest to disclose such documents. Insofar as the statement of prima facie ingredients of Section 7 of the Act being absent, the respondent again reiterates that the petitioner though not a final authority for granting any approval or cancellation, the fact that the file was processed by the petitioner would clearly indicate that he has demanded and accepted illegal gratification. On these grounds, he seeks dismissal of the petition.

9. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. THE GENESIS:

10. The petition narrates events that happened during the month of June and July 2019, to be the foundation for the impugned proceedings. It is the case of the petitioner that everything is done at the instance of one Smt.W.Gladys Jayanthi, 9 the Deputy Superintendent of Police, CBI of the Anti-corruption Bureau. It is the case of the petitioner that she had been insisting upon forceful cancellation of licence of a unit held by one H.T.Rajesh. The petitioner did not accede to the instructions of Smt.W.Gladys Jayanthi. The backdrop is narrated on the events that have happened in the aforesaid two months. A detailed narration is not necessary for resolution of the issue in the lis. The CBI draws up a source report on 22-09-2019 and that forms to be the foundation against the petitioner and two others. The other two are one M.Santha Kumar, Accused No.2 and one Rishab Bipin Desai, Accused No.3 both employees of M/s Sanghvi Cylinders Private Limited. It is the case of the respondent that while the petitioner was working as Deputy Chief Controller of Explosives, Petroleum and Explosives Safety Organization had demanded `50,000/- from Sri M.Santha Kumar, accused No.2 who was the Quality Assurance Manager of the Unit, for the purpose of issuance of favourable inspection report, for which Sri M.Santa Kumar is alleged to have agreed that the amount would be handed over to the petitioner on 22-09-2019 at the petitioner’s office through accused No.3 - Sri. Rishab Bipin Desai. The CBI, based upon 10 certain investigation, alleges that the petitioner accepted illegal gratification from accused No.3. The call interceptions are the foundational basis for registration of the crime. There is no other source that is drawn for drawing the source report or initiating further proceedings. It is an admitted fact that on 20-09-2019 at about 13.04.25 p.m. the accused No.2 had called from his mobile to the mobile number of the petitioner and during the said conversation, the petitioner is said to have demanded illegal gratification of Rs.50,000/- and the accused No.2 agreed to give the same. In the light of this being the genesis of the issue and the genesis being interception of the mobile phone of the petitioner and the other accused, it becomes necessary to go to the root of the matter, i.e., the legality of such interception of the telephone conversation or what is globally known as “wiretapping”, or “telephone tapping”. STATUTORY FRAME WORK:

11. It is not that telephone tapping is unbridled or uncanalised. It is controlled by rigors of a statute – Indian 11 Telegraph Act, 1885 and the Indian Telegraph Rules, 1951 (hereinafter referred to as ‘the Act’ and ‘the Rules’ for short). Section 5 of the Act is germane to be noticed and it reads as follows: “5. Power for Government to take possession of licensed telegraphs and to order interception of messages.—(1) 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, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act. (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 the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or 12 detained, unless their transmission has been prohibited under this sub-section.” (Emphasis supplied) Sub-section (2) of Section 5 mandates that on occurrence of any public emergency or in the interest of public safety, the Central Government or a State Government if satisfied that it is necessary in the interest of sovereignty and integrity of India, security of the State, public order or for preventing incitement of the commission of an offence would have power to intercept a telephone. Therefore, there must be those circumstances narrated in sub-section (2) of Section 5 that should exist for an order of telephone tapping. The Government of India has framed Rules invoking power under the Act. Certain provisions of the Rules are germane to be noticed. Rule 419 reads as follows: “419. Interception or monitoring of telephone messages.—(1) It shall be lawful for the Telegraph Authority to monitor or intercept a message or messages transmitted through telephone, for the purpose of verification of any violation of these rule or for the maintenance of the equipment. Rule 419 permits the Telegraph Authority to monitor or intercept a message or messages transmitted through telephone for the 13 purpose of verification of any violation of the Rules. This is what was holding the field up to 2014. By an amendment dated 28-01-2014 Rule 419A comes to be inserted. Rule 419A reads as follows: “419-A. (1) Directions for interception of any message or class of messages under sub-section (2) of Section 5 of the Indian Telegraph Act, 1885 (hereinafter referred to as the said Act) shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India and by the Secretary to the State Government in-charge of the Home Department in the case of a State Government. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorized by the Union Home Secretary or the State Home Secretary, as the case may be: Provided that in emergent cases— (i) in remote areas, where obtaining of prior directions for interception of messages or class of messages is not feasible; or (ii) for operational reasons, where obtaining of prior directions for interception of messages or class of messages is not feasible, the required interception of any message or class of messages shall be carried out with the prior approval of the Head or the second senior most officer of the authorised Security and Law Enforcement Agency at the Central Level and the officers authorised in this behalf, not below the rank of Inspector General of Police, at the State level but the concerned competent authority shall be informed of such interceptions by the approving authority within three working days and that such interceptions all 14 be got confirmed by the concerned competent authority within a period of seven working days and if the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease and the same message or class of messages shall not be intercepted thereafter without the prior approval of the Union Home Secretary or the State Home Secretary, as the case may be. (2) Any order issued by the competent authority under sub-rule (1) shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee within a period of seven working days. (3) While issuing directions under sub-rule (1), the officer shall consider possibility of acquiring the necessary information by other means and the directions under sub-rule (1) shall be issued only when it is not possible to acquire the information by any other reasonable means. (4) The interception directed shall be the interception of any message or class of messages as are sent to or from any person or class of persons or relating to any particular subject whether such message or class of messages are received with one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications from or to one particular person specified or described in the order or one particular set of premises specified or described in the order. (5) The directions shall specify the name and designation of the officer or the authority to whom the intercepted message or class of messages is to be disclosed and also specify that the use of intercepted message or class of messages shall be subject to the provisions of sub-section (2) of Section 5 of the said Act. (6) The directions for interception shall remain in force, unless revoked earlier, for a period not exceeding sixty days from the date of issue and may be renewed but the same shall 15 not remain in force beyond a total period of one hundred and eighty days. (7) The directions for interception issued under sub-rule (1) shall be conveyed to designated officers of the telegraph authority or to the designated officers of the service provider(s) who have been granted licences under Section 4 of the said Act, in writing or by secure electronic communication by an officer not below the rank of Superintendent of Police or the officer of the equivalent rank and mode of secure electronic communication and its implementation shall be as determined by the telegraph authority. (8) The officer authorised to intercept any message or class of messages shall maintain proper records mentioning therein, the intercepted message or class of messages, the particulars of persons whose message has been intercepted, the name and other particulars of the officer or the authority to whom the intercepted message or class of message has been disclosed, the number of copies of the intercepted message or class of messages made and the mode or the method by which such copies are made, the date of destruction of the copies and the duration within which the directions remain in force. (9) All the requisitioning Security and Law Enforcement Agencies shall designate one or more nodal officers not below the rank of Superintendent of Police or the officer of the equivalent rank to authenticate and send the requisitions for interception to the designated officers of the telegraph authority or the concerned service providers, as the case may be and the delivery of written requisition for interception shall be done by an officer not below the rank of Sub-Inspector of Police. (10) The telegraph authority shall designate officer(s) in every licensed service area/State /Union territory as the nodal officers to receive and handle such requisitions for interception and the service providers shall designate two senior officer(s) of the company in every licensed service area/State/Union territory as the nodal officers to receive and handle such requisitions for interception. (11) The designated nodal officer(s) of the telegraph authority or the service providers shall issue acknowledgment to 16 the requisitioning Security and Law Enforcement Agency within two hours on receipt of intimations for interception. (12) The system of designated nodal officers for communicating and receiving the requisitions for interceptions shall also be followed in emergent cases/unavoidable cases where prior approval of the competent authority has not been obtained. (13) The designated nodal officer(s) of the telegraph authority or the service providers shall forward every fifteen days a list of interception authorisations received by them during the preceding fortnight to the nodal officers of the Security and Law Enforcement Agencies for confirmation of the authenticity of such authorisations and the list shall include details such as the reference and date of orders of the Union Home Secretary or State Home Secretary or orders issued by officer other than competent authority, in terms of sub-rule (1) in emergent cases which were not subsequently confirmed by the competent authority, date and time of receipt of such orders and the date and time of implementation of such orders. (14) The service providers shall put in place adequate and effective internal checks to ensure that unauthorised interception of messages does not take place and extreme secrecy is maintained and utmost care and precaution is taken in the matter of interception of messages as it affects privacy of citizens and also that this matter is handled only by the designated nodal officers of the company. (15) The service providers shall be responsible for actions of their employees also and in case of established violation of licence conditions pertaining to maintenance of secrecy and confidentiality of information and unauthorised interception of communication, action shall be taken against the service providers as per provisions of the said Act, and this shall include not only fine but also suspension or revocation of their licences. (16) The Central Government and the State Government, as the case may be, shall constitute a Review Committee. 17 (i) The Review Committee to be constituted by the Central Government shall consist of the following namely - (a) Cabinet Secretary Chairman (b) Secretary to the Government of Member India in-charge, Legal Affairs (c) Secretary to the Government, Member Department of Telecommunications (ii) The Review Committee to be constituted by a State Government shall consist of the following, namely:— (a) Chief Secretary Chairman (b) Secretary Law/Legal Member Remembrancer In-charge, legal Affairs. (c) Secretary to the State Member Government (other than the Home Secretary) (17) The Review Committee shall meet at least once in two months and record its findings whether the directions issued under sub-rule (1) are in accordance with the provisions of sub-section (2) of Section 5 of the said Act and when the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and orders for destruction of the copies of the intercepted message or class of messages. (18) Records pertaining to such directions for interception and of intercepted messages shall be destroyed by the relevant competent authority and the authorised Security and Law Enforcement Agencies every six months unless these are, or likely to be, required for functional requirements. (19) The service providers and telegraph authority shall destroy records pertaining to directions for interception of messages within two months of discontinuance of the interception of such messages and in doing so they shall maintain extreme secrecy.” (Emphasis supplied) 18 Rule 419A mandates certain procedure to be followed. Interception of messages should be carried out with prior approval of the head or the second senior most officer of the Law Enforcement Agency and the concerned Competent Authority shall be informed of such interceptions by the Approving Authority within 3 working days and such interception will cease and same message or class of messages shall not be intercepted without the prior approval of the Union Home Secretary or the State Home Secretary, as the case would be. Sub-Rule (2) of Rule 419A mandates furnishing of reasons for such interception and a copy of the order to be forwarded to the concerned Review Committee within 7 working days. JUDICIAL INTERPRETATION OF TELEPHONE TAPPING / WIRETAPPING / INTERCEPTION / MOBILE TAPPING:

12. It is not in dispute that the genesis of the issue against the petitioner is foundationed on the interception of conversation between the petitioner and the other accused. Whether this would amount to breach of privacy, of the petitioner or others, is required 19 to be noticed. Section 5 admits grant of permission for wiretapping only on certain circumstances. The circumstances are also found in the statute itself, in terms of sub-section (2) of Section 5. The issue whether it would amount to breach of privacy need not detain this Court for long or delve deep into the matter. The Apex Court harmonizing, the intertwined mandate of breach of privacy and sub- section (2) of Section 5 of the Act, in the case of PEOPLE’S UNION FOR CIVIL LIBERTIES (PUCL) v. UNION OF INDIA1 has held as follows: “…. …. ….

18. The right to privacy — by itself — has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. … … … 1 (1997) 1 SCC30120 27. Learned counsel assisting us in this case have not seriously challenged the constitutional vires of Section 5(2) of the Act. In this respect it would be useful to refer to the observations of this Court in Hukam Chand Shyam Lal v. Union of India [(1976) 2 SCC128 : (SCC pp. 131-32, para

13) “Section 5(1) if properly construed, does not confer unguided and unbridled power on the Central Government/State Government/specially authorised officer to take possession of any telegraph. Firstly, the occurrence of a ‘public emergency’ is the sine qua non for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must record its satisfaction as to the existence of such an emergency. Further, the existence of the emergency which is a prerequisite for the exercise of power under this section, must be a ‘public emergency’ and not any other kind of emergency. The expression ‘public emergency’ has not been defined in the statute, but contours broadly delineating its scope and features are discernible from the section which has to be read as a whole. In sub-section (1) the phrase ‘occurrence of any public emergency’ is connected with and is immediately followed by the phrase ‘or in the interests of the public safety’. These two phrases appear to take colour from each other. In the first part of sub-section (2) those two phrases again occur in association with each other, and the context further clarifies with amplification that a public ‘emergency’ within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence. It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a ‘public emergency’ with a view to taking further action under this section. Economic emergency is not one of those matters expressly mentioned in the statute. Mere ‘economic emergency’ — as the High Court calls it — may not necessarily amount to a ‘public emergency’ and justify action under this section unless it raises problems relating to the matters indicated in the section.” 21 As mentioned above, the primary contention raised by the learned counsel is to lay down necessary safeguards to rule out the arbitrary exercise of power under the Act.

28. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said section. “Occurrence of any public emergency” or “in the interest of public safety” are the sine qua non for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression “public safety” means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone-tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone-tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.

29. 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 22 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. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so. ... … ..

35. We, therefore, order and direct as under:

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

2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means of a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.

3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.

4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified 23 or described in the order or one particular set of premises specified or described in the order.

5. The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at any time before the end of two-month period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.

6. The authority which issued the order shall maintain the following records: (a) the intercepted communications, (b) the extent to which the material is disclosed, (c) the number of persons and their identity to whom any of the material is disclosed, (d) the extent to which the material is copied, and (e) the number of copies made of any of the material.

7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.

8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.

9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government. 24 (a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order, whether there has been any contravention of the provisions of Section 5(2) of the Act. (b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material. (c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect.” (Emphasis supplied) The Apex Court holds that telephone tapping is a serious invasion of an individual’s privacy. With the growth of communication technology, privacy of one’s home or office without interference, would become susceptible to abuse and, therefore, citizen’s right to privacy has to be protected from being abused by the authorities and renders several directions. 25

13. In somewhat similar circumstance, the High Court of Delhi in JATINDER PAL SINGH v. CBI2 has held as follows: “…. …. ….

63. As per Rule 419A of the Rules framed under the Telegraph Act, the order of the Home Secretary granting permission to intercept telephonic conversations is to be forwarded to the Review Committee within seven days of passing the order, for the purpose of being reviewed by the Committee. This Court does not find any material on record to establish that any review of the order of the Home Secretary was conducted in compliance of the aforesaid rules framed under the Telegraph Act. Therefore, this Court is convinced that the Special Judge while passing the impugned orders has totally ignored the provisions of the aforesaid rules.

64. This Court is of the view that as per Section 5 (2) of the Telegraph Act, an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety as per the law laid down by the Hon'ble Supreme Court in the case of PUCL (Supra). After the perusal of the records, this Court is satisfied that in peculiar facts of the instant case, the mandatory requirements laid down by law for placing reliance on such audio conversations, have not been fulfilled. It is an admitted position that Rule 419(A)(17) which provides for destruction of intercepted message also adopt the said directions. The court below while passing the impugned orders has also ignored the settled legal positions and directions of the Hon'ble Supreme Court.

65. It is also relevant to add here that if the directions of the Hon'ble Supreme Court in PUCL (Supra) which are now re- enforced and approved by the Hon'ble Supreme Court in K.S. Puttaswamy (Supra) as also the mandatory rules in regard to the illegally intercepted messages/audio conversations pursuant to an order having no sanction of law, are permitted, it would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Hon'ble Supreme Court.” 2 2022 SCC OnLine Del. 135 26 … … … CONCLUSION81 The entire controversy has arisen out of an alleged bribery made for allowing the admissions into the 4th Batch of MBBS of the GSMCH, Patiala by bypassing the alleged deficiencies in the process. The Petitioner is accused of having acted as a middleman in the alleged bribery. However, no direct or indirect evidence implicating the petitioner is available on record that can be legally relied on to proceed with the matter. The evidence collected and produced by the investigation agency before the Court below is fraught with illegalities and no sufficient cause is made to proceed with the case qua the petitioner for the reasons as detailed hereunder: i) The main basis of the matter for which the bribe was allegedly given i.e., the auditorium was not actually required to be constructed as a condition precedent for conducting admissions of the 4th batch of MBBS course. The factum has been verified by the appropriate authorities at various stages as stated above, hence there is no rationale of committing the alleged offence of giving of bribe. ii) Further, the Approver on the basis of whose statement petitioner has been made an accused, was impleaded in the case without sanction from the appropriate authorities and his statement is thus inadmissible. iii) Nothing as alleged in the recorded conversation intercepted by the investigating agency forms direct basis or has any connection whatsoever with the need for bribery, nor is there any rationale for offering of the alleged bribe. The recovery made has also been explained and accounted for by the Petitioner with evidence as being a part of the advance received by the Petitioner in lieu of sale of his village land. 27 iv) Tape records of the calls intercepted in the instant case are not admissible since the due procedure for such interception as mandated by the Telegraph Act and the Rules framed thereunder has not been followed. Further, even the same has not been verified in the FSL report. No further witness/evidence to implicate the petitioner is on record. v) Additionally, the public servant who is alleged to have been involved in the said transaction has already been discharged and cannot, therefore, be prosecuted under the PC Act. (Emphasis supplied) The High Court of Delhi holds that Rule 419A framed under the Telegraph Rules cannot be brushed aside. It is mandatory, as these are the Rules in regard to interception of messages or audio conversations. Unless they have an authority sanctioned in law they cannot be permitted. I am in complete agreement with the view expressed by the High Court of Delhi.

14. Long before the High Court of Delhi considering Section 5(2) of the Act and 419A of the Rules, the High Court of Andhra Pradesh, in a judgment in the case of K.L.D. NAGASREE V. 28 GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI3 had held as follows: “21. As held by the Supreme Court in People's Union for Civil Liberties's case (2. supra) the competent authority under Section 5 (2) of the Act is empowered to pass an order of interception only on the occurrence of any public emergency or in the interest of public safety which are held to be sihe qua non for the application of the provisions of sub-section (2) of Section 5 of the Act.

22. However, a mere perusal of the impugned order, extracted above, shows that the same did not refer either to occurrence of any public emergency or existence of public safety interest which are pre-requisites for the exercise of power under Section 5 (2) of the Act.

23. As a matter of fact, except repeating all the five situations mentioned in sub-section (2) of Section 5 verbatim, no specific reason which warranted interception of the petitioner's mobile telephone was mentioned. The said fact itself shows that the impugned order was passed mechanically without application of mind to the facts and circumstances of the case on hand. Hence, on the face of it, the impugned order is not in compliance with the mandatory requirement of sub- section (2) of Section 5. Not only the satisfaction of the authority as to the occurrence of public emergency or the existence of public safety interest is absent, but even the satisfaction expressed with regard to the other situations enumerated under sub-section (2) of Section 5 of the Act does not stand the legal scrutiny.

24. That apart, the specific allegation made by the petitioner with regard to non-compliance of the subsequent procedure required to be followed under Rule 419-A could not be contradicted by the respondents. Except reiterating the object and purport of Section 5 (2) 3 2006 SCC OnLine AP108529 of the Act and the guidelines issued by the Supreme Court in People's Union For Civil Liberties's case (2 supra), the counter-affidavits filed on behalf of the respondents are silent as to the procedure laid down under Rule 419-A much less the compliance thereof.

25. On the other hand, the material furnished to this Court “in a sealed cover by the learned Counsel appearing for the Government of India shows that the Review Committee constituted under Rule 419-A (8) met on 6-12-2004 for the purpose of review of the orders authorizing interception/tapping of telephones under Section 5 (2) of the Act. In the Minutes Book of the meeting, it was recorded that the consolidated statement of the orders authorizing interception passed by the Home Secretary since 23-6-2003 was placed before the Committee and that the Committee had decided to hold another meeting during which the following information was desired to be placed before it. (i) Total number of telephone lines/E-Mail for which authorizations were issued indicating separately - (a) No.of lines for which sanction was issued for the first time (90 days or less); (b) No.of lines for which extension (180 days or less) was given; (c) No.of lines for which sanction was issued resulting in monitoring for more than 180 days indicating those where monitoring may be beyond 200 days, (ii) Total number of lines monitoring of which has proved “fruitful, indicating the results broadly.

26. However, no other material has been, placed before this Court to show that the Review Committee has met subsequently for the said purpose and that the information required by the Committee was made available to the Committee. Thus, it is clear that no finding as required under sub-rule (9) of Rule 419-A of the Rules was recorded by the Review Committee.

27. Admittedly by 6-12-2004, on which date the Review Committee met, more than a year had lapsed from the date of 30 the impugned order dated 17-11-2003. There is absolutely no material to show that the said order was forwarded to the Review Committee within 7 days. It is also relevant to note that the order of interception remains in force for a maximum period of 180 days and apparently by the date the Review Committee met on 6-12-2004 the said period had lapsed.

28. Viewed from any angle, the impugned order dated 17-11-2003 cannot be held to be in accordance with the provisions of Section 5 (2) of the Act and Rule 419-A of the Rules and therefore the same being ex facie illegal is liable to be set aside. … … … 35. Keeping in view the object and purpose of the said Rules as declared in People's Union For Civil Liberties's case (2 supra) and particularly since the violation of the said provisions would result in infraction of right to privacy of an individual which is a part of the right guaranteed under Article 21 of the Constitution of India, I am of the opinion that Rule 419-A though procedural in nature is mandatory and the non- compliance of the same would vitiate the entire proceedings.

36. It is also relevant to note that under sub-rule (9) if the Review Committee is of the opinion that the directions are not in accordance with the provisions of Rule 419-A, it is empowered to set aside the directions and order for destruction of the copies of the intercepted message. The fact that the consequences of non- compliance of the procedure prescribed under Rule 419-A are also provided under the same Rule further makes clear the intention of the Legislature to make the said procedure mandatory. Hence, the non-compliance of the procedure under Rule 419-A is undoubtedly fatal.

37. At any rate, since the impugned order is also in contravention of the substantive law as laid down in subsection (2) of Section 5 of the Act and is declared illegal, the 31 consequential action of the respondents 2 and 3 in intercepting the mobile telephone of the petitioner is automatically rendered unauthorised. Hence, whatever information is obtained pursuant to the order dated 17-11 -2003 cannot be taken into consideration for any purpose whatsoever.” (Emphasis supplied) 15. The Apex Court later in the case of ANURADHA BHASIN v. UNION OF INDIA4 has held as follows: “…. …. …..

99. The aforementioned case was followed in PUCL v. Union of India [PUCL v. Union of India, (1997) 1 SCC301 , in the context of phone-tapping orders passed under Section 5(2) of the Telegraph Act, wherein this Court observed as follows : (SCC p. 314, para

29) “29. 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. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so.

100. Keeping in mind the wordings of the section, and the above two pronouncements of this Court, what emerges is that the prerequisite for an order to be passed under this sub-section, and therefore the Suspension Rules, is the occurrence of a “public emergency” or for it to be “in the interest of public safety”. Although the 4 (2020) 3 SCC63732 phrase “public emergency” has not been defined under the Telegraph Act, it has been clarified that the meaning of the phrase can be inferred from its usage in conjunction with the phrase “in the interest of public safety” following it. Hukam Chand Shyam Lal case [Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC128 further clarifies that the scope of “public emergency” relates to the situations contemplated under the sub-section pertaining to “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”.

101. The word “emergency” has various connotations. Everyday emergency, needs to be distinguished from the type of emergency wherein events which involve, or might involve, serious and sometimes widespread risk of injury or harm to members of the public or the destruction of, or serious damage to, property. Article 4 of the International Covenant on Civil and Political Rights, notes that ‘[I].n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed…’. Comparable language has also been used in Article 15 of the European Convention on Human Rights which says “In time of war or other public emergency threatening the life of the nation”. We may only point out that the “public emergency” is required to be of serious nature, and needs to be determined on a case-to-case basis.

102. The second requirement of Section 5(2) of the Telegraph Act is for the authority to be satisfied that it is necessary or expedient to pass the orders in the interest 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, and must record reasons thereupon. The terms “necessity” and “expediency” bring along the stages an emergency is going to pass through usually. A public emergency usually would involve different stages and the authorities are required to have regard to the stage, before the power can be utilised under the aforesaid Rules. The appropriate balancing of the factors differs, when considering the stages of emergency and accordingly, the authorities are required to triangulate 33 the necessity of imposition of such restriction after satisfying the proportionality requirement.” (Emphasis supplied) The Apex Court holds that the word ‘emergency’ found in sub- section (2) of Section 5 cannot be construed to be an everyday emergency. It needs to be distinguished from an emergency of serious nature which is likely to cause widespread risk or injury or harm to members of public. It is the afore-quoted, that is public emergency, is what is found in sub-section (2) of Section 5. It is only in those circumstances, wiretapping can be permitted under the Telegraph Act or the Rules made thereunder, is what the Apex Court and other Courts hold. In the teeth of the aforesaid mandate of the Statute i.e., the Act and the law laid down by the Apex Court and the other High Courts, I deem it appropriate to notice the requisition and permission granted to wiretap the conversation between the petitioner and the other accused. This Court, on several occasions, adjourned the matter directing the CBI to produce proceedings of the Review Committee for orders of tapping having been placed before it. What comes about after repeated 34 adjournments is a communication dated 21-07-2023 from the Department of Telecommunications to the CBI. It reads as follows: “To Deputy Inspector General Central Bureau of Investigation Anti Corruption Branch, Bangalore Subject Writ Petition 24119/2022 pertaining to Case No RC16A)/2019/CBI/ACB/ Bangalore- regarding Please refer to your office litter no C5/RC- 16(A)/2019/CBI/ACB/BLR/ dated 17.07.2023 vide which it has been requested to provide the information pertaining to the review of the 'Order dated 22.08.2019 and 18.09.2019 of the Secretary to the Government of India. Ministry of Home Affairs, New Delhi authorizing the technical surveillance of mobile No 8275066275 and 6364435666”.

2. In this regard, following is stated: i. In the present case Ministry of Home Affairs was requested to confirm whether or not the orders dated 22.08.2019 and 18.09.2019 permitting the interception of telephonic conversations in the present case were sent to the Review Committee in terms of rule 419 A of the Indian Telegraph Rules. ii. In response, Ministry of Home Affairs has informed that as per Rice 419A(18) of Indian Telegraph (1st Amendment of 2014) Rules, 2014, all records pertaining to directions for lawful interception for the period 2019 have been destroyed by the MHA. However, as per Rule 419A (2) of indian Telegraph (1st Amendment of 2014) Rules, 2014, the copies of directions issued under section 5(2) of the Telegraph Act-1885 and section 69 of the Information Technology Act-2000 are forwarded to the Review Committee within a period of seven working days. 35 iiii. In the instant case, the interception orders dated 22.08.2019 and 18.09.2019 are pertaining to the duration from 01.05.2019 to 31.08.2019 and 01.09.2019 to 17.01.2020. iv. It is submitted that the minutes of the Review Committee Department of Tele- communications. The Review committee reviewed the interception done by the various law enforcement agencies including that of CBI for the interception orders issued by the Ministry of Home Affairs under Section 5(2) of the Indian Telegraph Act, 1885 read with Rule 419A of the Indian Telegraph Rules, 1951 from 01.05.2019 to 31.08.2019 and 01.09.2019 to 17.01.2020 respectively. As per the minutes, the Committee concluded that the orders of interception issued by the Home Ministry in respect of CBI during the above- mentioned period were in accordance with the provisions of section 5(2) of the Indian Telegraph Act and did not merit any intervention of the Committee. v. Further, it is stated that the records of the Review Committee are secret official records comprising inputs related to various other investigating agencies like Intelligence Bureau, Enforcement Directorate, Directorate of Revenue Intelligence, and other law enforcement agencies besides CBI, as well. Therefore, it would not be in the public interest to disclose such documents since it could hamper the investigation or go against the public interest. vi. It is stated that the Head of the Department has been empowered under Section 123 of the Indian Evidence Act, 1872 to give or withhold permission to give evidence arising from official records. Further, under section 124 of the Indian Evidence Act, 1872, no public officer shall be compelled to disclose communications made to him in official 36 confidence when he considers that the public interests would suffer by the disclosure.

3. This issues with the approval of Secretary Department of Telecommunications. Sd/- (R S Sing) Director (Security) Tel No:011-23036337”

(Emphasis added)

The review proceedings are not placed before the Court. It is indicated that orders of interception were forwarded to the Review Committee within 7 working days and the Review Committee had approved the same, though no proceedings of the Review Committee are produced, even with a sealed cover. The order of tapping of telephone reads as follows: “MINISTRY OF HOME AFFAIRS (Government of India)

ORDER

Whereas as per provision in Rules 3 & 4 read with Rules 2 (d) of the Information Technology (Procedure and Safeguards for Interception Monitoring and Decryption of Information) Rules, 2009 read with sub-section (2) of section 69 of the Information Technology Act 2000 (Act 21 of 2000), and as per provision in sub-rule (1) of Rule 419-A of the Indian Telegraph Rules, 1951 notified on 28.01.2014 as Indian Telegraph (1st Amendment of 2014) Rules, 2014 read with sub-section (2) of section 5 of the Indian Telegraph Act, 1885) (13 of 1885), the Secretary, Ministry of Home Affairs, Government of India, being the Competent Authority, is authorised to exercise powers on 37 behalf of the Central Government under section 69 of the Information Technology Act 2000 (Act 21 of 2000) and Section 5(2) of the Indian Telegraph Act, 1885 (13 of 1885).

2. Now, therefore, I, Union Home Secretary, being satisfied that, for reasons of public safety, it is necessary and expedient so to do in the interest of public order and for preventing incitement to the commission of an offence, hereby direct to intercept, monitor or decrypt or cause to be intercepted, monitored or decrypted any information generated, transmitted, received or stored in any computer resource in respect of the telephone number 82750-66275 and disclosed to Director, CBI. It is further directed that any telephone message relating to clandestine contact/movement/activity etc. to and from 82750-66275 shall also be intercepted and disclosed to Director, CBI.

3. I am further satisfied that it is necessary to monitor this telephone/computer resource as the information cannot be acquired through any other reasonable means.

4. This order shall remain in force for a period not exceeding 60 days from the date of issue.” …

(Emphasis added)

The order is dated 18-09-2019. It is this that has to be placed before the Review Committee. The order is passed invoking sub- section (2) of Section 5 of the Telegraph Act. The order reads that Union Home Secretary is satisfied that it was necessary and expedient in public safety to order interception. What public safety was involved in the case at hand is not known, and is not discernible anywhere either in the order or in the requisition. I fail 38 to understand what public safety or public emergency was involved in the case at hand. The allegation is with regard to acceptance of illegal gratification. If that be so, a drastic measure of wiretapping could not have been permitted against the petitioner, as admittedly he did not involve any of the trait necessary under sub-section (2) of Section 5 of the Act and its interpretation by the Apex Court. Therefore, wiretapping is loosely permitted against the petitioner. This finding that the act of wiretapping is illegal would cut at the root of the matter and obliterate all the acts or steps taken by the prosecution in its aftermath. I deem it appropriate to notice if there is any semblance of merit in the allegation as well. THE ALLEGATION:

16. The facts that led to registration of the crime are narrated hereinabove, they would not require any iteration. It would suffice to notice the charge against the petitioner. The charge is as follows: “Under Section 120-B of IPC and 7, 8 and 9 of PC Act 1988 (as amended in 2018). Based on the source information the case RC No.16(A)/2019/ACB/CBI/BLR was registered on 22.09.2019 against 39 Shri. S M Mannan, Dy. Chief Controller of Explosives, PESO, Mangalore, Sh. Shantha Kumar M, Sh. Rishabh Desai and others on the allegations that. Sh: S M Mannan demanded illegal gratification of Rs. 50,000/- from representatives of M/s Sanghvi Cylinders Pvt Ltd for forwarding inspection reports to Office of Chief Controller of Explosives, Nagpur. Investigation revealed that Sh. S M Mannan (A-1) in furtherance of conspiracy with A-2 to A-5 demanded and obtained undue advantage of Rs. 50,000. There is sufficient materials to prosecute the accused persons viz., Shri S M Mannan (A-1), Shri Shantha Kumar (A-2), Shri Rishabh Desai (A-3), M/s Sanghvi Cylinders Pvt Ltd (A-4), M/s Sanghvi Cylinders Unit II Pvt Ltd (A-5) under Section 120-B of IPC and Section 7, 8 and 9 of PC Act 1988(as amended in 2018). Separate Charge vide Annexure-I is enclosed.” …. …. …. Investigation revealed that Shri S.M.Mannan, Deputy Chief Controller of Explosives, PESO, Mangalore was requested by Controller of Explosives, PESO, Nagpur to inspect the facilities and witness the type testing jointly with BIS, Bengaluru and furnish his report indicating the party's capability or otherwise to undertake manufacture of the LPG Cylinders of 11.7 liters of water capacity proposed by M/s Sanghvi Cylinders Pvt Ltd. and M/s Sanghvi Cylinders Unit II Pvt Ltd., Investigation revealed that Sh. Prashant Yadav, Deputy Controller of Explosives, PESO, Mangalore conducted the inspection for M/s Sanghvi Cylinders Pvt Ltd on 05.09.2019 and 06.09.2019 along with the Officer of BIS, Bangalore. At the time of said inspection Sh. M Santha Kumar (A-2), Quality Manager was also present along with Sh. Prateek Sanghvi, S/O of Sh. Ramesh Sanghvi, Director of M/s Sanghvi Cylinders Pvt as representatives of M/s Sanghvi Cylinders Pvt Ltd. 40 That on 18.09.2019 and 19.09.2019 inspection for M/s Sanghvi Cylinders Unit-II Pvt Ltd was also conducted by Sh. Prashant Yadav along with the officer of BIS, Hubli. Shri Rishab Bipin Desai (A-3), Manager Admin was present there as representative of M/s Sanghvi Cylinders Unit II Pvt Ltd along with Sh. K Srinivas, Quality Manager. Further, it is revealed that Sh. Rishabh Bipin Desai (A-3) was for the inspections of both Units. Investigation revealed on 20.09.2019 at 13.04.25 hrs Shri Santha Kumar M (A-

2) called from his mobile No.9902485794 to Shri S M Mannan (A-1) to his mobile по. 6364435666 and Sh. S M Mannan demanded undue advantage of Rs. 50,000/- and Sh. Shantha Kumar (A-2) agreed to the same. Sh. Shantha Kumar also confirmed that Sh. Rishabh Bipin Desai (A-3) would visit office of Sh. S M Mannan on 23.09.2019 with the amount and collect the forwarding letters. On the basis of reliable source information received at ACB, CBI, Bangalore the FIR was registered on 22.09.2019 u/s 7, 8 and 9 of PC Act against Sh. S M Mannan, Sh M.Shanth Kumar, Sh. Rishabh Bipin Desai and others for Demand of illegal Gratification by public Servant, Promise of illegal gratification and bribing a public servant by Commercial Organisation. Investigation revealed that on the basis of information, on 23.09.2019 the CBI team along with the independent witnesses reached nearby office/building of Dy.Chief Controller of Explosives, PESO Sub Circle office, Mangalore. At about 11:30 hrs, Shri Rishab Desai (A-3) entered into the office of Dy. Chief Controller. PESO Mangalore. When he came out from the office, the CBI team intercepted him. Sh.Rishabh Desai (A-3) was placed under arrest after he revealed that as per the instructions of Sh. Shantha Kumar, Quality Manager, M/s Sanghvi Cylinders. he had paid illegal gratification of Rs. 50,000/- in cash to Shri S. M. Mannan(A-1) to forward the Inspection Reports of M/s Sanghvi Cylinders Pvt Ltd (A-4) and M/s Sanghvi Cylinders Unit II Pvt Ltd (A-5). Further he was asked to accompany the CBI team. While he accompanied the CBI team to the office of Shri S. M. Mannan (A-1), it was learnt that Shri S M Mannan left the premises in his vehicle parked at the basement. CBI team along with Sh. Rishabh Desai(A-3) and the independent witnesses immediately followed the said vehicle 41 of Shri S M Mannan(A-1) bearing registration number MH-31 FA4661 a Maruti Zen and they reached at his flat with Sh. Rishab Desai (A-3) and independent witnesses. The investigation revealed that after questioning by CBI and confrontation wah Sh. Rishabh Desai(A-3), Sh. S M Mannan (A-

1) revealed that he has received Rs. 50,000/ handed over by Sh. Rishabh Desai(A-3). Sh. S M Mannan was placed under arrest and thereafter he took the envelope containing Rs. 50.000 from his bedroom and handed over to CBI team. A search was conducted at his residence and a total cash of Rs. 15,22,000/- was seized from his house. Investigation revealed that Sh. Shantha Kumar (A-2) and Sh. Rishabh. Bipin Desai (A-3) entered into the conspiracy with Sh. S M Mannan (A-1) on behalf of M/s Sanghvi Cylinders Pvt Ltd(A-

4) and M/s Sanghvi Cylinders Unit II Pvt Ltd (A-5) for payment of bribe to A-1, for the purpose of forwarding the Inspection Reports. The Investigation revealed that there were no existing Guidelines or Norms issued by A-4 and A-5 to prevent their employees (associated persons) from giving undue advantage to any public servant. Therefore. A-4 and A-5 are also liable u/s 9 of PC Act (As amended in 2018) for the act of A-2 and A-3. Thereby, above narrated facts attribute to the offence of conspiracy among A-1 to A-5 for demanding and obtaining the undue advantage by A-1 and subsequent payment of undue advantage by A-2 and A-3 on behalf of A-4 and A-5. Thus the avove acts of the accused persons constitutes offenses punishable undder section 120-B r/w. 7, 8 and 9 of Prevention of Corruption Act 1988 (as amended in 2018) and the substantive offences thereof. That Sh. R K Soni, Under Secretary to the Government of India, Department for Promotion of Industry and Internal Trade, Vigilance Section has accorded the Sanction for Prosecution u/s 19 of PC Act 1988 for Sh. S M Mannan (A-1) and same is enclosed with the relied upon documents. It is therefore prayed that this Charge sheet may please be taken on file, issue summons to the accused person and tried as per law. 42 That, the list of witnesses, documents and Material Objects in support of the Charge Sheet is enclosed as Annexure-II, III & IV respectively. The Expert opinion of CFSL, New Delhi on the Voice Spectrograph Test is still awaited and will be filed as additional documents along with Material objects on their receipt.” The charges alleged are the ones punishable under Sections 7, 8 and 9 of the Act and 120B of the IPC. Sections 8 and 9 cannot be attributed to the petitioner. Therefore, it can only be Section 7 and 120B of the IPC. I deem it appropriate to notice Section 7 of the Act. Section 7 of the Act reads as follows: “7. Offence relating to public servant being bribed.—Any public servant who,— (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, 43 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1.—For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.—A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. ‘S’ is guilty of an offence under this section. Explanation 2.—For the purpose of this section,— (i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.]. (Emphasis supplied) Section 7 directs that any public servant who accepts or attempts to obtain from any person undue advantage with an intention to perform or cause performance of public duty or to forbear such performance either by himself or by another public servant is said to have committed the offence of bribe. Therefore the soul of 44 Section 7(a) is demand and acceptance for the performance of public duty or forbearance of such performance. INTERPRETATION UNDER THE UN-AMENDED ACT:

17. The Apex Court in the case of B.JAYARAJ v. STATE OF ANDHRA PRADESH5 interprets Section 7 of the Act and holds as follows: “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC1: (2013) 2 SCC (Cri) 89]. and C.M. Girish Babu v. CBI [(2009) 3 SCC779 (2009) 2 SCC (Cri) 1]..” (Emphasis supplied) In the case of N.VIJAYAKUMAR v. STATE OF TAMILNADU6 the Apex Court holds as follows:

5. (2014) 13 SCC556 (2021) 3 SCC68745 “26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC779: (2009) 2 SCC (Cri) 1]. and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC55: (2014) 5 SCC (Cri) 543]. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.

27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC55: (2014) 5 SCC (Cri) 543]. read as under: (SCC pp. 58-

59) “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC1: (2013) 2 SCC (Cri) 89]. and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC779: (2009) 2 SCC (Cri) 1]. . 46

8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW9 and there is no other evidence to prove that the accused had made any demand, the evidence of PW1and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal 47 presumption under Section 20 can be drawn are wholly absent.” The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment [State of T.N. v. N. Vijayakumar, 2020 SCC OnLine Mad 7098]. of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.” (Emphasis supplied) The Apex Court, later, in the case of K.SHANTHAMMA v. STATE OF TELANGANA7 has held as follows: “10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act. 7 (2022) 4 SCC57448 11. In P. Satyanarayana Murthy v. State of A.P. [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC152: (2016) 1 SCC (Cri) 11]. , this Court has summarised the well- settled law on the subject in para 23 which reads thus : (SCC p.

159) “23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” (emphasis supplied) 12. The prosecution's case is that the appellant had kept pending the return of commercial tax filed by the said Society for the year 1996-97. The appellant had issued a notice dated 14-2-2000 to the said Society calling upon the said Society to produce the record. Accordingly, the necessary books were produced by the said Society. The case made out by PW1is that when he repeatedly visited the office of the appellant in February 2020, the demand of Rs 3000 by way of illegal gratification was made by the appellant for passing the assessment order. However, PW1 in his cross-examination, accepted that the notice dated 26-2-2000 issued by the appellant was received by the said Society on 15-3-2000 in which it was mentioned that after verification of the books of accounts of the said Society, exemption from payment of commercial tax as claimed by the said Society was allowed. PW1accepted that it was stated in the said notice that there was no necessity for the said Society to pay any commercial tax for Assessment Year 1996-97.

13. According to the case of PW1 on 23-3-2000, he visited the appellant's office to request her to issue final 49 assessment order. According to his case, at that time, initially, the appellant reiterated her demand of Rs 3000. But she scaled it down to Rs 2000. Admittedly, on 15-3-2000, the said Society was served with a notice informing the said Society that an exemption has been granted from payment of commercial tax to the said Society. Therefore, the said Society was not liable to pay any tax for the year 1996-97. The issue of the final assessment order was only a procedural formality. Therefore, the prosecution's case about the demand of bribe made on 23- 3-2000 by the appellant appears to be highly doubtful.

14. PW1described how the trap was laid. In the pre-trap mediator report, it has been recorded that LW8 Shri R. Hari Kishan, was to accompany PW1— complainant at the time of offering the bribe. PW7Shri P.V.S.S.P. Raju deposed that PW8Shri U.V.S. Raju, the Deputy Superintendent of Police, ACB, had instructed LW8to accompany PW1— complainant inside the chamber of the appellant. PW8has accepted this fact by stating in the examination-in-chief that LW8was asked to accompany PW1and observe what transpires between the appellant and PW1 PW8 in his evidence, accepted that only PW1entered the chamber of the appellant and LW8waited outside the chamber. Even PW7admitted in the cross-examination that when PW1entered the appellant's chamber, LW8remained outside in the corridor. Thus, LW8was supposed to be an independent witness accompanying PW1 In breach of the directions issued to him by PW8 he did not accompany PW1inside the chamber of the appellant, and he waited outside the chamber in the corridor. The prosecution offered no explanation why LW8did not accompany PW1inside the chamber of the appellant at the time of the trap.

15. Therefore, PW1is the only witness to the alleged demand and acceptance. According to PW1 firstly, the demand was made of Rs 3000 by the appellant on 24-2-2000. Thereafter, continuously for three days, she reiterated the demand when he visited the appellant's office. Lastly, the appellant made the demand on 29-2-2000 and 23-3-2000. On this aspect, he was cross-examined in detail by the learned Senior Counsel appearing for the appellant. His version about the demand and acceptance is relevant which reads thus:

50. “In the vicinity of office of AO the jeep, in which we went there was stopped and I was asked to go into the office of AO and the trap party took vantage positions. Accordingly, I went inside the office of AO. I wished AO. At that time apart from AO some other person was found in the office room of AO and he was talking to the AO. AO offered me a chair. After discussion with the AO the said other person left the room of AO. I informed AO that I brought the bribe amount as demanded by her and also asked her to issue the final assessment orders. Then I took the said tainted currency notes from my shirt pocket and I was about to give the same to the AO and on which instead of taking the same amount directly by her with her hands she took out a diary from her table drawer, opened the diary and asked me to keep the said amount in the diary. Accordingly, I kept the amount in the said diary. She closed the said diary and again kept the same in her table drawer and locked the drawer and kept the keys in her hand bag which was hanging to her seat. She pressed the calling bell and a lady attender came into the room of AO, then she instructed the lady attender to call ACTO concerned to her along with the society records concerned. Accordingly, ACTO came to AO along with record. After going through the ledger and cash book, etc. AO signed on the last page of the said ledger and cash book mentioning 26-2-2000 below her signature in the said register though she signed on 27-3-2000 in my presence. AO directed her attender to affix official rubber stamp below her signature in the ledger and cash book and accordingly attender affixed the same. AO also signed on the office note of final assessment orders at that time. Thereafter, I collected the general ledger and cash book from the attender after affixing the said rubber stamp thereon and came out of the office of AO and relayed the pre-arranged signal to the trap party.” (emphasis supplied) 16. Thus, PW1did not state that the appellant reiterated her demand at the time of trap. His version is that on his own, he told her that he had brought the amount. What is material is the cross-examination on this aspect. In the cross-examination, 51 PW1accepted that his version regarding the demand made by the appellant on various dates was an improvement. The relevant part of the cross-examination of the appellant reads thus: “I did not state to ACB Inspector in Section 161 CrPC statement that on the evening of 24-2-2000 I met the AO and that she demanded the bribe. I did not mention in Ext. P-3 complaint that continuously for 3 days after 24-2-2000 I met the AO and the AO reiterated her demand. I did not mention in Ext. P-3 complaint that on 29-2-2000 I approached the AO and the AO demanded bribe of Rs 3000 and that unless I pay the said bribe amount she will not issue final assessment orders. I did not state in my Section 164 statement before the Magistrate that 13-3-2000 to 16-3-2000 I was on leave and from 1-3-2000 to 12-3-2000, I was engaged in recovering the dues of the society. It is not true to suggest that I did not meet the AO continuously 3 days i.e. on 25-2-2000, 26-2-2000 and 27-2-2000 and that 27-2-2000 is Sunday. It is not true to suggest that I did not meet the AO in the evening of 24-2-2000 and that AO did not demand any money from me. I did not state in my Section 161 CrPC statement to Inspector of ACB that before I left the office of DSP on the date of trap I made a phone call enquiring about the availability of AO and the AO was in the office and informed me that she should be available in the office from 6.00 to 7.00 p.m. on that day so also in my Section 164 CrPC. I made such a phone call from the office of the DSP, ACB. I do not remember as to from which phone number I made phone call on that day. I cannot describe office telephone number of the AO. It is not true to suggest that I did not make any such phone call to AO and that she did not give any such reply to me. I did not state to ACB Inspector in my Section 161 CrPC statement or to the Magistrate in my Section 164 CrPC statement that I went inside the office of AO and I wished AO and at that time apart from AO some other person was found in the office room of AO and that he was talking to the AO and that the AO offered me a chair and that after discussion with the AO the said person left the room of AO and then I informed the AO that I brought 52 the bribe amount. I did not state that said aspects to DSP during the post trap proceedings also.” (emphasis supplied) 17. Thus, the version of PW1in his examination-in-chief about the demand made by the appellant from time to time is an improvement. As stated earlier, LW8did not enter the appellant's chamber at the time of trap. There is no other evidence of the alleged demand. Thus, the evidence of PW1about the demand for bribe by the appellant is not at all reliable. Hence, we conclude that the demand made by the appellant has not been conclusively proved.

18. PW2 Shri B.D.V. Ramakrishna had no personal knowledge about the demand. However, he accepted that on 15-3-2000, the said Society received a communication informing that the said Society need not pay any tax for the year 1996-97. PW3Shri L. Madhusudhan was working as Godown Incharge with the said Society. He stated that on 15-3- 2000, when he visited the appellant's office, ACTO served the original notice dated 26-2-2000 in which it was mentioned that the Society was not liable to pay any tax. It is his version that when he met the appellant on the same day, she enquired whether he had brought the demanded amount of Rs 3000. However, PW3did not state that the appellant demanded the said amount for granting any favour to the said society.

19. PW4Ahmed Moinuddin was ACTO at the relevant time. He deposed that on 27-3-2000, the appellant instructed him to prepare the final assessment order, which was kept ready in the morning. He stated that he was called at 6 p.m. to the chamber of the appellant along with books of the said Society. At that time, PW1was sitting there. He stated that the appellant subscribed her signature on a Register of the said Society and put the date as 26-2-2000 below it. He was not a witness to the alleged demand. However, in the cross- examination, he admitted that the appellant had served a memo dated 21-3-2000 to him alleging that he was careless in performing his duties.” 53 The afore-quoted judgments were rendered interpreting Section 7 as it stood prior to amendment. The Apex Court holds that demand and acceptance are sine qua non for an offence under Section 7 of the Act.

JUDGMENT

S POST AMENDMENT:

18. The Apex Court has further interpreted Section 7(a) post amendment in the case of NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI8 and holds as follows: “8. Before we analyze the evidence, we must note that we are dealing with Sections 7 and 13 of the PC Act as they stood prior to the amendment made by the Act 16 of 2018 with effect from 26th July 2018. We are referring to Sections 7 and 13 as they stood on the date of commission of the offence. Section 7, as existed at the relevant time, reads thus: “7. Public servant taking gratification other than legal remuneration in respect of an official act.— Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government 8 2023 SCC OnLine SC28054 or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine. Explanations.- (a) “Expecting to be a public servant”- If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) “Legal remuneration”- The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.” 55 9. Section 13(1)(d), as existed at the relevant time, reads thus: “13. Criminal misconduct by a public servant.— (1) A public servant is said to commit the offence of criminal misconduct,- (a) ……………………………… (b) ……………………………… (c) ……………………………… (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) ………………………………….

10. The demand for gratification and the acceptance thereof are sine qua non for the offence punishable under Section 7 of the PC Act.

11. The Constitution Bench4 was called upon to decide the question which we have quoted earlier. In paragraph 74, the conclusions of the Constitution have been summarised, which read thus: “74. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in 56 order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the 57 public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 58 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” (emphasis added) 12. The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus: “76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: In the absence of evidence of the complainant (direct/primary, oral/ document-tary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.” (emphasis added) 13. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj1 and P. Satyanarayana Murthy2. There is another 59 decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu5, which follows the view taken in the cases of B. Jayaraj1 and P. Satyanarayana Murthy2. In paragraph 9 of the decision in the case of B. Jayaraj1, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus: “9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.” (emphasis added) 14. The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are ‘demand’ and ‘acceptance’ of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.

15. In the case of N. Vijayakumar5, another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) 60 Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus: “26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC779: (2009) 2 SCC (Cri) 1]. and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC55: (2014) 5 SCC (Cri) 543]. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1) (d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.” (emphasis added) 16. Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.

17. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to “any gratification”. The substituted Section 7 does not use the word “gratification”, but it uses a wider term “undue advantage”. When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations 61 of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of sub-section (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence.

18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand.” 62 Subsequent to NEERAJ DUTTA’S case the Apex Court in the case of SOUNDARAJAN v. STATE9 has held as follows: “FINDING ON PROOF OF DEMAND9 We have considered the submissions. It is well settled that for establishing the commission of an offence punishable under Section 7 of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in the case of Neeraj Dutta3 has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof.

10. As stated earlier, complainant PW-2 has not supported the prosecution. He has not said anything in his examination-in-chief about the demand made by the appellant. The public prosecutor cross-examined PW-2. The witness stated that there was no demand of a bribe made by the appellant. According to him, he filed a complaint as the return of the sale deed was delayed. Though PW-2 accepted that he had filed the complaint, in the cross-examination, he was not confronted with the material portions of the complaint in which he had narrated how the alleged demand was made. The public prosecutor ought to have confronted the witness with his alleged prior statements in the complaint and proved that part of the complaint through the concerned police officer who had reduced the complaint into writing. However, that was not done.

11. Now, we turn to the evidence of the shadow witness (PW-3). In the examination-in-chief, he stated that the appellant asked the PW-2 whether he had brought the amount. PW-3 did not say that the appellant made a specific demand of gratification in his presence to PW-2. To attract Section 7 of the PC Act, the demand for gratification has to be proved by the prosecution beyond a reasonable doubt. The word used in Section 7, as it existed before 26th July 2018, is ‘gratification’. There has to be a demand for gratification. It is not a simple 9 (2023) SCC OnLine SC42463 demand for money, but it has to be a demand for gratification. If the factum of demand of gratification and acceptance thereof is proved, then the presumption under Section 20 can be invoked, and the Court can presume that the demand must be as a motive or reward for doing any official act. This presumption can be rebutted by the accused.

12. There is no circumstantial evidence of demand for gratification in this case. In the circumstances, the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) have not been established. Unless both demand and acceptance are established, offence of obtaining pecuniary advantage by corrupt means covered by clauses (i) and (ii) of Section 13(1)(d) cannot be proved.” The Apex Court in the case of NEERAJ DUTTA (supra) was clarifying and interpreting the judgment in the case of NEERAJ DUTTA which was rendered by a Constitution Bench and further holds that proof of demand and acceptance of gratification is sine qua non for any allegation under Section 7 of the Act, be it pre- amendment or post-amendment. This is reiterated in the case of SOUNDARAJAN (supra).

19. On a coalesce of the judgments rendered by the Apex Court, as quoted supra, the soul of Section 7 is demand and acceptance. The unmistakable inference on the interpretation, in the considered view of the Court would be, if there is demand but 64 no acceptance it would not make an offence under Section 7. If there is acceptance but no demand, it would then also make no offence under Section 7. An act alleged under Section 7 should have the ingredients of demand and acceptance and it is for the performance of a public duty or forbearance from performance. Therefore, demand and acceptance should be for the purpose of performance of some duty. For such performance there should be work pending at the hands of the public servant against whom Section 7 is alleged.

20. On the bedrock of the principles laid down by the Apex Court interpreting Section 7, the facts obtaining in the case at hand are required to be noticed. It is an admitted fact that no complaint is registered by any complainant being aggrieved of any demand or acceptance of illegal gratification. The complaint is registered on the tapping of the mobile conversation between the accused. The accused No.2 Shantha Kumar is said to have agreed to pay Rs.50,000/-. Accused No.3 is said to have delivered the said Rs.50,000/-. No trap is laid against the petitioner. When the sleuths of the CBI go to the office of the petitioner, they are 65 informed that he has left to his residence. They go to his residence and meet accused No.3 outside the house. It is said when he was questioned as to why was he there, he is said to have confessed that he had come to deliver Rs.50,000/- in an envelope. The house is searched based upon the said information. The petitioner, during the search, pulls out an envelope containing Rs.50,000/- from his cupboard. This is said to have been identified by the accused No.3, that the colour of the envelope is the same, that he had given Rs.50,000/-. So the case of the prosecution is not built upon any demand or acceptance, for any work pending on the table of the petitioner, and neither on any undue advantage being taken. It is sought to be built on the colour of the envelope and the amount in the envelope i.e., Rs.50,000/-.

21. As observed hereinabove, no trap is laid, no search legally is conducted, no permission to tap the mobile phone of the petitioner is legally granted. It runs completely counter to the judgments rendered by the Apex Court supra. Therefore, if the prosecution wants to build up its case on the colour of a plain 66 envelope, it is too bleak an effort to taint the petitioner and permit further proceedings.

22. As observed hereinabove, prosecution is wanting to build up its case on the colour of an envelope and the manner in which they have sought to build it up, turns the colour of the case to a monochrome, resulting in unsustainability of the entire proceedings against the petitioner, as the envelope has completely lost its colour. I have used this metaphor to drive home that the case of the prosecution has completely lost its steam being shrouded with the afore considered illegality. In the light of the preceding analysis, permitting further proceedings against the petitioner would become an abuse of the process of the law and result in patent injustice, both of which would lead to miscarriage of justice. Therefore, I deem it appropriate to exercise my jurisdiction under Section 482 of the Cr.P.C. and obliterate the proceedings against the petitioner. 67

23. For the aforesaid reasons, the following order:

ORDER

(i) Writ Petition is allowed. (ii) Proceedings in Special Case No.1161 of 2020 pending before the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI cases at Bengaluru arising out of FIR in R.C.No.16(A)/2019 filed by the respondent stand quashed. (iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against other accused pending before any other fora. Sd/- JUDGE Bkp CT:SS