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Judgment
S.N.,Issue raised,Clarification:
2.,"""Whether the intercepts can be shared for initiation
of department action/ enquiry / proceedings against
the erring officers to prove the charge of
misconduct leveled against them as the primary
evidence available are only the intercepted
materials""","""The intercepts cannot be shared for departmental
actions / enquiry proceedings for misconduct or for
violation of CCS (Conduct) Rules"".
MANU/DE/0062/1988.,,
The counsel for the petitioner has drawn our attention to Annexure P-2, being order dated 8th January, 2015 issued by the respondent",,
no.1 and states that the direction of the Inquiry Officer is contrary to the guidelines of the respondent no.1 Ministry of Home Affairs.,,
On perusal of Annexure P-2, we are unable to find any rule therein with respect to the direction impugned.",,
The counsel for the petitioner has next contended that the Inquiry Officer had found no charge to have been proved against the,,
petitioner.,,
Even if that be so, the Disciplinary Authority can always pass any order deemed appropriate, as has been done in the present case.",,
It is deemed appropriate to give time to the counsel for the petitioner to prepare.,,
The counsel for the petitioner to, today itself, electronically transmit a copy of the petition with all annexures to Mr. Siddharth Khatana,",,
counsel for the respondents, who may also prepare on the aforesaid lines.",,
It is also deemed appropriate to appoint an Amicus Curie. Mr. Ankur Chhibber, Advocate has graciously consented to act as Amicus",,
Curie in this case. Copy of the petition with annexures along with this order be also transmitted by the Court Master to the Amicus Curie.,,
List on 10th December, 2020.""",,
The counsel for the petitioner has today argued, (i) that the direction of the Disciplinary Authority to the Enquiry Officer, to collect the voice sample",,
of the petitioner, amounts to coercing the petitioner to self-incriminate himself and is violative of Article 20(3) of the Constitution of India; (ii) that",,
there is no provision in the CISF Act or the CISF Rules, for the course of action followed by the Director General, CISF as the Disciplinary Authority;",,
and, (iii) that once the MHA, vide Notification, relevant paragraph whereof is reproduced in the petition (as reproduced above) has clarified that",,
intercepts cannot be shared for departmental actions/enquiries/proceedings for misconduct or for violation of CCS (Conduct) Rules, the telephonic",,
conversation cannot form the basis of the departmental enquiry underway against the petitioner.,,
The learned Amicus Curiae has emailed to us, the following judgments:",,
(A) Raja Narayanlal Bansilal Vs. Maneck Phiroz Mistry AIR 1961 SC 2 9and S.A. Venkataraman Vs. The Union of India AIR 1954 SC 37.5 The,,
question for consideration in the former was, whether Section 240 of the Companies Act, 1913 which empowered the Registrar of Companies to issue",,
notices by which the appellant therein was called upon to give evidence and to produce documents pertaining to an investigation relating to the affairs,,
of the Company he was managing, offends against the fundamental constitutional right guaranteed by Article 20(3) of the Constitution of India. It was",,
held, (i) that the argument was no doubt attractive; (ii) however the construction of Article 20 in general and Article 20(2) and (3) in particular, had",,
been the subject matter of some decisions of the Supreme Court and the argument had to be decided in the light of the said decisions; (iii) in Maqbool,,
Hussain Vs. State of Bombay AIR 1953 SC 32,5 it was held that the words ""prosecuted and punished"" used in Article 20(2) indicate that the",,
proceedings contemplated therein, were of the nature of criminal proceedings, before a Court of Law or a Judicial Tribunal and ‘Prosecution’ in",,
this context would mean an initiation or starting of proceedings of a criminal nature before a Court of Law or in a Judicial Tribunal, in accordance with",,
the procedure prescribed in the statute, which creates the offence and regulates the procedure and that the proceedings initiated by the Customs",,
Authorities did not amount to prosecution of a party; (iv) reference was made to S.A. Venkataraman supra, where an enquiry had been made against",,
the appellant therein under the Public Servants (Inquiries) Act, 1850 and in pursuance whereto the appellant therein was dismissed and subsequent",,
thereto, a charge sheet was filed against him of offence under Sections 161/165 of the Indian Penal Code, 1860 and Section 5(2) of the Prevention of",,
Corruption Act, 1947 and it was held that proceedings taken under the Public Servants (Inquiries) Act did not amount to a prosecution; and, (v) that",,
with respect to Article 20(3) also it had been held in M.P. Sharma Vs. Satish Chandra, District Magistrate, Delhi AIR 1954 SC 30 0that the",,
constitutional guarantees under Article 20(3) of the Constitution are available to a person against whom a formal accusation relating to commission of,,
an offence has been leveled, which in the normal course may result in prosecution; that one of the essential conditions for invoking the constitutional",,
guarantee enshrined in Article 20(3) is, that a formal accusation relating to the commission of an offence which would normally lead to his prosecution,",,
must have been leveled against the party who has been compelled to give evidence against himself.,,
(B) D.S. Jadhav Vs. The Hon'ble the Chief Justice, Bombay High Court, Bombay 1994 SCC OnLine Bom 644 (D, Bw)here an inquiry under Article",,
235 of the Constitution of India was held against a Civil Judge cum Judicial Magistrate and report of which was accepted by the High Court, which",,
dismissed the Judicial Officer. Challenging the said dismissal, it was the contention of the petitioner therein that the adverse inference drawn, from",,
non-appearance of the petitioner, in the enquiry, was erroneous as much as the petitioner was not bound to file his written statement or examine",,
himself as a witness during the course of disciplinary enquiry, in view of the provisions contained in Article 20(3) of the Constitution of India. It was",,
held, (i) that there was no merit in the said plea; (ii) that the factual foundation concerning the said plea was non-existent; (iii) that no one compelled",,
the petitioner to be a witness against himself; and, (iv) that Article 20(3) of the Constitution is applicable only to criminal proceedings and has no",,
application to civil proceedings or departmental enquiries.,,
(C) Oriental Rubber Industries Private Limited Vs. Competition Commission of India 2016 SCC OnLine Del 24,3 8where one of us (Rajiv Sahai",,
Endlaw, J.) sitting singly, also held that since the person summoned was not an accused, Article 20(3) had no application and there was no",,
constitutional right to claim comforts to which the person is used to, during investigation.",,
(D) The State of Bombay Vs. Kathi Kalu Oghad AIR 1961 SC 180, 8where a bench of eleven Judges of the Supreme Court held, (i) that giving",,
thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification, are not",,
included in the expression ""to be a witness""; (ii) that ""to be a witness"" means imparting knowledge in respect of relevant facts by an oral statement or",,
a statement in writing, made or given in Court or otherwise; (iii) that ""to be a witness"" means bearing testimony in Court or out of Court, by a person",,
accused of an offence, orally or in writing; and, (iv) that to bring the statement in question within the prohibition of Article 20(3), the person accused",,
must have stood in the character of an accused person at the time he made the statement; it is not enough that he should become an accused, any",,
time after the statement has been made.,,
(E) Darshan Singh Vs. The District and Sessions Judge 2011 SCC OnLine P&H 781 (9DB), holding that giving voice sample was not violative of",,
Article 20(3) of the Constitution.,,
In view of the judgments aforesaid of the Supreme Court and of the other High Courts with which we fully concur, the argument of the counsel",,
for the petitioner, that the direction by the Director General, CISF in the present case to the Enquiry Officer, to collect the voice sample of the",,
petitioner for comparison with the voice on the CD, is violative of Article 20(3) of the Constitution of India, does not survive.",,
The learned Amicus Curiae has also contended that the reliance placed by the petitioner on the clarification rendered by the MHA vide,,
Notification dated 8th January, 2015 is also misconceived, inasmuch as the present was not a case of interception at all. It was explained that",,
interception means, by intelligence agencies and which is not the case here.",,
The learned Amicus Curiae has also drawn our attention to Rule 36 titled ""Procedure for Imposing Major Penalties"" of the CISF Rules and sub-",,
rule 21 whereof empowers the Disciplinary Authority to, after receipt of report of the Enquiry Officer, direct further evidence to be taken.",,
The counsel for the respondents CISF states that the learned Amicus Curiae has done his job and he has nothing else to contribute.,,
As far as the contention of the counsel for the petitioner, that under the Directives of MHA, on the basis of interceptions, no disciplinary",,
proceedings can be initiated, is concerned, we may notice that the petition does not challenge the initiation of the disciplinary proceedings against the",,
petitioner and only challenges the order directing voice sample of the petitioner to be taken. There is also no clarity that the telephonic conversation,,
attributed to the petitioner, was intercepted, within the meaning of Directives of the MHA. The complete Directives has also not been placed before",,
us. As aforesaid, there is no pleading also in this respect. For all the said reasons, we leave the said question open and do not deem it apposite to",,
decide the same in this judgment, on the basis of vague pleas and without any material on record.",,
Thus, the only ground on which the challenge was made in this petition, does not survive.",,
The petition is dismissed.,,
We express our gratitude to Mr. Ankur Chhibber, Advocate for, sacrificing his valuable time and for rendering able assistance to us, saving us the",,
time to research on the subject matter.,,