An Individual's Phone Can't Be Tapped To Uncover Suspected Crime, Would Violate Right To Privacy: Madras HC

It would be certainly extremely vital to note that in a major development, we see that the Madras High Court in a most learned, laudable, landmark, logical and latest judgment titled P Kishore vs The Secretary to Government and Others in Writ Petition No.143 of 2018 & WMP.Nos.206 & 207 of 2018 and cited in 2025 LiveLaw (Mad) 224 that was reserved on 20.06.2025 and then finally pronounced most recently on 02.07.2025 has minced absolutely just no words to hold in no uncertain terms that an individual's phone cannot be tapped in a secret operation to detect the commission of a crime and the same would violate the individual's fundamental right to privacy. It must be disclosed here that the Madras High Court was hearing a petition that had been filed by P Kishore who is Managing Director of a company challenging an order the Central Government under Section 5(2) of the Telegraph Act and Rule 419-A of the Telegraph Rules 1951 authorising his phone tapping in connection with an alleged corruption case. It must be also laid bare that the Single Judge Bench comprising of Hon'ble Mr Justice N. Anand Venkatesh who authored this most commendable, courageous and creditworthy judgment was most unequivocal in holding that phone tapping would be justified only on two conditions: the occurrence of a public emergency or in the interest of public safety.

By the way, the Bench also underscored that these situations/contingencies should be apparent to a reasonable man. It was pointed out by the Bench that in the present case, the authorities had not placed the intercepted material before the Review Committee and thus there was a violation of the Rules. It was also held by the Bench that since the material was collected in violation of Section 5(2) of the Act and Rule 419-A (17) of the Rules, the material could not be used for any purpose. Thus, the Bench deemed it fit to allow the plea and quashed Centre's order allowing phone tapping. Very rightly so!

Before stating anything else, the Bench states that, "PETITIONS under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the respondent in No.14/3/97-CBI dated 12.8.2011, quash the same and consequently declare the intercepted telegraphic messages/conversations to and from 98410-77377 as invalid (prayer amended as per order of court dated 10.1.2018 vide WMP.No. 844 of 2018 by KRCBJ)."

At the very outset, this brief, brilliant, bold and balanced judgment sets the ball in motion by first and foremost putting forth in para 1 that, "This is a petition filed by the petitioner under Article 226 of The Constitution of India challenging an order dated 12.8.2011 passed by the first respondent under Section 5(2) of the Telegraph Act, 1885 (hereinafter called the Act) and Rule 419-A of the Telegraph Rules, 1951 (hereinafter called the Rules) authorizing tapping of the mobile phone of the petitioner by the second respondent."

As we see, the Bench then points out in para 2 stating that, "This case raises seminal constitutional questions touching the scope of the right to privacy and the power of the Law Enforcement Agencies to resort to covert surveillance by tapping the mobile phones to obtain information regarding the commission of an alleged crime."

To put things in perspective, the Bench envisages in para 3 while elaborating on the facts of the case disclosing that, "The circumstances giving rise to this challenge are as under:

(i) The petitioner - one Mr.P.Kishore was the Managing Director of one M/s.Everonn Education Limited, Perungudi, Chennai. On 12.8.2011, the first respondent passed an order under Section 5(2) of the Act and Rule 419-A(1) of the Rules authorizing the interception of messages from the phone of the petitioner. The impugned order alleged that interception should be made and disclosed to the CBI for reasons of public safety and in the interest of public order and for preventing incitement to the commission of an offence.

(ii) In the meantime, pursuant to the aforesaid order, on 29.8.2011, the third respondent registered a first information report (FIR) in R.C.MA1 2011 A 0033 of 2011 against one Mr.Andasu Ravinder, IRS, Additional Commissioner of Income Tax, Company Range, Chennai (A1), the petitioner (A2) and one Mr.Uttam Bohra (A3) for offences under Section 120-B of the Indian Penal Code (IPC) and Section 7 of the Prevention of Corruption Act, 1988. The FIR alleged that A1 had conducted a search in the business premises of the said M/s.Everonn Education Limited, which was found to have concealed certain taxable income. A1 was alleged to have demanded a bribe of Rs.50 lakhs from A2 to help the said company evade taxes. Pursuant to this conspiracy, A2 was to hand over the said sum of money to A1 later that night and A3, who was a friend of A1, was to take the money thereafter to an unknown place.

(iii) On the basis of the above information, the officials of the CBI proceeded to Aayakar Bhavan Campus around 8:55 pm and took positions when they saw a Maruti Alto Car bearing registration number TN-04-AD-9747 driven by A3 proceeding towards the residence of A1. A3 alighted from the car and proceeded towards the stairs leading to the residence of A1. A1 was seen coming down from the stairs with a carton box in a polythene bag and getting into the car of A3 to take away the money to an unknown place. At that time, the CBI officials intercepted and apprehended A1 and A3. The carton box was seized and was later opened wherein it was found to have contained Rs.50 lakh. Neither A1 nor A3 could give satisfactory explanation for the money seized. It should be noted that it is not the case of the CBI that the petitioner (A2) was present on the spot at that time or that the money was seized from him.

(iv) The CBI completed the investigation and filed a final report before the 9th Additional District Court-cum-Special Court for CBI Cases, Chennai. The same has been taken on file as C.C.No.3 of 2013 and was stated to be pending.

(v) The petitioner (A2) had initially challenged the said order dated 12.8.2011 passed under Section 5(2) of the Act before this Court by filing Crl.O.P.No.12404 of 2014. This Court had, by an order dated 06.6.2014, granted an interim order of stay, which continued to be extended from time to time. Later, Crl.O.P.No.12404 of 2014 was dismissed on 27.10.2017 granting liberty to the petitioner to challenge the said order dated 12.8.2011 before the appropriate forum. It appears that this course was resorted to since the impugned order has been passed by the first respondent under Section 5(2) of the Act. Since the first respondent is obviously not a Criminal Court under the Criminal Procedure Code (Cr.P.C), the challenge to such an order could have only been made under Article 226 and not by way of a petition under Section 482 of the Cr.P.C. This petition under Article 226 has been filed pursuant to the liberty granted by this Court in the order dated 27.10.2017 in Cr.O.P 12404 of 2014."

It would be instructive to note that the Bench hastens to add in para 63 that, "This Court is unable to accept this submission since the boundaries for invasion of a fundamental right through the medium of enacted law is a function of the Legislature and not the Court. Section 5(2) of the Act has set out the Lakshman Rekha and the role of the Court is confined to seeing as to whether the threshold is not crossed. As sentinels on the qui vive, the Courts are gatekeepers of Fundamental Rights. Gate keepers cannot become gate makers to reposition the gates as and when the Executive requires without the intervention of the Legislature as pointed out by H.R. Khanna,J in the case of Godavari Sugar Mills Ltd. Vs. S.B.Kamble [reported in 1975 (1) SCC 696], which reads thus:

"Any provision which has the effect of making an inroad into the guarantee of fundamental rights in the very nature of things should be construed very strictly and it would not, in our opinion, be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beyond what is warranted by the language of the provision.""

Quite significantly, it is worth noting that the Bench notes in para 96 that, "The very fact that the intercepted material was not even placed before the Review Committee for its scrutiny would show that the respondents have clearly acted in brazen violation of the law. In view of the above discussions and as was done in the decision of the Hon'ble Andhra Pradesh High Court in K.L.D. Nagasree, it would suffice for this Court to declare that the intercepted material collected pursuant to the impugned order in violation of Section 5(2) of the Act and Rule 419-A(17) of the Rules shall not be used for any purposes whatsoever."

Far most significantly, the Bench then sums up the essence of this judgment and encapsulates what constitutes the cornerstone of this notable judgment postulating and directing in para 97 holding that, "The result of the above discussions can be summed up as follows:

"i. The right to privacy is now an integral part of the right to life and personal liberty guaranteed under Article 21 of The Constitution of India.

ii. Telephone tapping constitutes a violation of the right to privacy unless justified by a procedure established by law. Section 5(2) of the Act authorizes interception of telephones on the occurrence of a public emergency or in the interests of public safety. Both these contingencies are not secretive conditions or situations. Either of the situations would be apparent to a reasonable person. As laid down in paragraph 28 of the decision of the Hon'ble Apex Court in People's Union for Civil Liberties, it is only when the above two situations exist that the Authority may pass an order directing interception of messages after recording its satisfaction that it is necessary or expedient so to do in the interest of

(1) the sovereignty and integrity of India,

(2) the security of the State,

(3) friendly relations with foreign States,

(4) public order or

(5) for preventing incitement to the commission of an offence.

iii. In the instant case, the impugned order dated 12.8.2011 does not fall either within the rubric of "public emergency" or "in the interests of public safety" as explained by the Hon'ble Supreme Court in the case of People's Union for Civil Liberties. The facts disclose that it was a covert operation/secretive situation for detection of crime, which would not be apparent to any reasonable person. As the law presently stands, a situation of this nature does not fall within the four corners of Section 5(2) of the Act as expounded by the Hon'ble Supreme Court in the case of People's Union for Civil Liberties, which has been approved by the Constitution Bench of the Hon'ble Supreme Court in K.S. Puttaswamy (Aadhaar-5J) Vs. Union of India [reported in 2019 (1) SCC 1].

iv. The respondents have also contravened Rule 419-A(17) of the Rules by failing to place the intercepted material before the Review Committee within the stipulated time to examine as to whether the interception was made in compliance with Section 5(2) of the Act.

v. As a consequence of (iii) and (iv) above, the impugned order dated 12.8.2011 must necessarily be set aside as unconstitutional and one without jurisdiction. Besides violating Article 21, it is also ultra vires Section 5(2) of the Act besides being in violation of the mandatory provisions of Rule 419-A of the Rules.

vi. It follows that the intercepted conversations collected pursuant to the impugned order dated 12.8.2011 in violation of Section 5(2) of the Act and Rule 419-A(17) of the Rules shall not be used for any purposes whatsoever.

vii. It is, however, made clear that the above direction shall have no bearing on the other material that have been collected by the CBI subsequent to and independent of the intercepted call records, which shall be considered by the Trial Court on its own merits without being influenced by any of the observations made in this order."

Finally, the Bench then concludes and very rightly draws the curtains of this robust judgment directing and holding aptly in para 98 that, "In the result, the writ petition is allowed. The order dated 12.8.2011 bearing No.14/3/97-CBI passed by the first respondent is quashed with the above directions. No costs. Consequently, the connected WMPs are closed."