Supreme Court of India: Ruchi Majoo vs Sanjeev Majoo

This is a recent and a very interesting and significant decision of the Supreme Court of India on the international aspects of child custody. The Supreme Court has laid down important guidelines in this regard.


SUPREME COURT OF INDIA
Hon'ble Mr. Justice V.S. Sirpurkar and Hon'ble Mr. Justice T.S. Thakur
Ruchi Majoo Appellant
versus
Sanjeev Majoo Respondent(s)
Case No: Civil Appeal No. 4435 of 2003 With Criminal Appeal No. 1184 of 2011
Date of Decision: 13 May 2011

JUDGMENT
T.S. Thakur, J.:- Leave granted.
Conflict of laws and jurisdictions in the realm of private international law is a phenomenon that has assumed greater dimensions with the spread of Indian diasporas across the globe. A large number of our young and enterprising countrymen are today looking for opportunities abroad. While intellectual content and technical skills of these youngster find them lucrative jobs in distant lands, complete assimilation with the culture, the ways of life and the social values prevalent in such countries do not come easy. The result is that in very many cases incompatibility of temperament apart, diversity of backgrounds and inability to accept the changed lifestyle often lead to matrimonial discord that inevitably forces one or the other party to seek redress within the legal system of the country which they have adopted in pursuit of their dreams. Experience has also shown that in a large number of cases one of the parties may return to the country of his or her origin for family support, shelter and stability. Unresolved disputes in such situations lead to legal proceedings in the country of origin as well as in the adoptive country. Once that happens issues touching the jurisdiction of the courts examining the same as also comity of nations are thrown up for adjudication.
The present happens to be one such case where legal proceedings have engaged the parties in a bitter battle for the custody of their only child Kush, aged about 11 years born in America hence a citizen of that country by birth. These proceedings included an action filed by the father-respondent in this appeal, before the American Court seeking divorce from the respondent-wife and also custody of master Kush. An order passed by the Superior court of California, County of Ventura in America eventually led to the issue of a red corner notice based on allegations of child abduction levelled against the mother who like the father of the minor child is a person of Indian origin currently living with her parents in Delhi. The mother took refuge under an order dated 4th April, 2009 passed by the Addl. District Court at Delhi in a petition filed under Sections 7, 8, 10, 11 of the Guardians and Wards Act granting interim custody of the minor to her. Aggrieved by the said order the father of the minor filed a petition under Article 227 of the Constitution of India before the High Court of Delhi. By the order impugned in this appeal the High Court allowed that petition, set aside the order passed by the District Court and dismissed the custody case filed by the mother primarily on the ground that the Court at Delhi had no jurisdiction to entertain the same as the minor was not ordinarily residing at Delhi - a condition precedent for the Delhi Court to exercise jurisdiction. The High Court further held that all issues relating to the custody of child ought to be agitated and decided by the Court in America not only because that Court had already passed an order to that effect in favour of the father, but also because all the three parties namely, the parents of the minor and the minor himself were American citizens. The High Court buttressed its decision on the principle of comity of courts and certain observations made by this Court in some of the decided cases to which we shall presently refer.
Three questions fall for determination in the above backdrop. These are (i) Whether the High Court was justified in dismissing the petition for custody of the minor on the ground that the court at Delhi had no jurisdiction to entertain the same, (ii) Whether the High Court was right in declining exercise of jurisdiction on the principle of comity of Courts and (iii) Whether the order granting interim custody to the mother of the minor calls for any modification in terms of grant of visitation rights to the father pending disposal of the petition by the trial court. We shall deal with the questions ad seriatim:
Re: Question No.1
There is no gainsaying that any challenge to the jurisdiction of the court will have to be seen in the context of the averments made in the pleadings of the parties and the requirement of Section 9 of the Guardian and Wards Act, 1890. A closer look at the pleadings of the parties is, therefore, necessary before we advert to the legal requirement that must be satisfied for the Court to exercise its powers under the Act mentioned above.
The appellant-mother had in her petition filed under the Guardian and Wards Act, 1890 invoked the jurisdiction of the Court at Delhi, on the assertion that the minor was, on the date of the presentation of the petition for custody ordinarily residing at 73 Anand Lok, August Kranti Marg, New Delhi. The petition enumerated at length the alleged acts of mental and physical cruelty of the respondent-husband towards the appellant, including his alleged addiction to pornographic films, internet sex and adulterous behavior during the couple's stay in America. It traced the sequence of events that brought them to India for a vacation and the alleged misdemeanor of the respondent that led to the appellant taking a decision to past company and to stay back in India instead of returning to United States as originally planned. In para (xxxviii) of the petition, the appellant said :
"That the petitioner in no certain terms told the respondent that considering his past conduct which was cruel, inhuman and insulting as well as humiliating, the petitioner has no plans to be with the respondent and wanted to stay away from him. The petitioner even proposed that since there was no (sic) possibility for them to stay together as husband and wife and as a result of which the petitioner has decided to settle in India for the time being, therefore some interim arrangement could be worked out. The arrangement which was proposed by the petitioner was that the petitioner will stay with her son for the time being in India and make best arrangements for his schooling. The petitioner had also conveyed to the respondent that since he wanted to have visitation rights, therefore, he must also contribute towards the upbringing of the child in India. It was further suggested that some cooling off period should be there so that the matrimonial disputes could be sorted out subsequently."
The appellant further alleged that she had informed the respondent about a petition under the Guardian and Wards Act being ready for presentation before the Guardian Court at Delhi, whereupon the respondent is alleged to have agreed to the appellant staying back in Delhi to explore career options and to the minor continuing to stay with her. The respondent eventually returned to America around 20th July, 2008, whereafter he is alleged to have started threatening the appellant that unless the later returned to America with the minor, he would have the child removed and put in the custody of the respondent's parents at Udaipur. Apprehending that the respondent may involve the appellant in some false litigation in America and asserting that she was fit to be given the custody of the minor being his mother and natural guardian, the appellant sought the intervention of this Court and her appointment as sole guardian of the minor.
Shortly after the presentation of the main petition, an application under Section 12 of the Guardian and Wards Act read with Section 151 of the Civil Procedure Code was filed by the appellant praying for an ex-parte interim order restraining the respondent and/or any one on his behalf from taking away and/or physically removing the minor from her custody and for an order granting interim custody of the minor to the appellant till further orders. The application set out the circumstances in brief that compelled the appellant to seek urgent interim directions from the court and referred to an e-mail received from the father of the minor by the Delhi Public School (International) at R.K. Puram, where the minor is studying, accusing the mother of abducting the minor child and asking the school authorities to refuse admission to him. The application also referred to an e-mail which the Principal of the school had in turn sent to the appellant and the order which the US Court had passed granting custody of minor child to the respondent. The appellant alleged that the US Court had no jurisdiction in the matter and that the order passed by that Court was liable to be ignored. On the presentation of the above application the Guardian Court passed an ex-parte interim order on 16th September, 2008 directing that the respondent shall not interfere with the appellant's custody of the minor child till the next date of hearing.
The respondent entered appearance in the above proceedings and filed an application for dismissal of the petition on the ground that the court at Delhi had no jurisdiction to entertain the same. In the application the respondent denied all the allegations and averments suggesting habitual internet sex, womanizing, dowry demand and sexual or behavioural perversity alleged against him. The respondent also alleged that the family had planned a vacation-cum-family visit to India and booked return air tickets to be in America on 20th July, 2008. The respondent's version was that the appellant along with the respondent and their minor son, Kush had stayed with the parents of the appellant at Delhi till 5th July, 2008. Thereafter, they were supposed to visit Udaipur but since the appellant insisted that she would stay at Delhi and assured to send Kush after sometime to Udaipur, the respondent left for Udaipur where he received a legal notice on behalf of the appellant making false and imaginary allegations. On receipt of the notice the respondent returned to Delhi to sort out the matter. During the mediation the respondent was allegedly subjected to enormous cruelty, pressure and threat of proceedings under Section 498A IPC so as to obstruct his departure scheduled on 20th July, 2008. The respondent alleged that since any delay in his departure could cost him a comfortable job in United States, he felt coerced to put in writing a tentative arrangement on the ground of appellant trying "career option of Dental medicine at Delhi" and master Kush being allowed to study at Delhi for the year 2008. This letter was, according to the respondent, written under deceit, pressure, threat and coercion. At any rate the letter constituted his consent to an arrangement, which according to him stood withdrawn because of his subsequent conduct. It was alleged that neither the appellant nor Kush could be ordinarily resident of Delhi so as to confer jurisdiction upon the Delhi Court. Several other allegations were also made in the application including the assertion that the interim order of custody and summons issued by the Superior Court of California, County of Ventura were served by e-mail on the appellant as also on Advocate, Mr. Purbali Bora despite which the appellant avoided personal service of the summon on the false pretext that she did not stay at 73 Anand Lok, New Delhi.
It was, according to the respondent, curious that instead of returning to USA to submit to the jurisdiction of competent court at the place where both the petitioner and respondent have a house to reside, jobs to work and social roots and where Kush also normally resided, has friends and school, the appellant wife had persisted to stay in India and approach and seek legal redress. It was further stated that the proceedings initiated by the appellant on or about 28th August, 2008, with allegations and averments that were ex-facie false and exaggerated, were not maintainable in view of the proceedings before the Court in America and the order passed therein. It was also alleged that in terms of the protective custody warrant order issued on 9th September, 2008, by the Superior Court of California, County of Ventura, the appellant had been directed to appear before the US Courts which the appellant was evading to obey and that despite having information about the proceedings in the US Court she had obtained an ex-parte order without informing the respondent in advance.
The respondent also enumerated the circumstances which according to him demonstrated that he is more suitable to get the custody of Master Kush in comparison to the appellant-mother of the child. The respondent husband accordingly prayed for dismissal of the petition filed by the appellant-wife and vacation of the ad-interim order dated 4th April, 2009 passed by the Guardian Court at Delhi.
The Guardian and Wards Court upon consideration of the matter dismissed the application filed by the respondent holding that the material on record sufficiently showed that the respondent-husband had consented to the arrangement whereby the appellant-wife was to continue living in Delhi in order to explore career options in dental medicine and that the minor was to remain in the custody of his mother and was to be admitted to a School in Delhi. The Court further held that since there were serious allegations regarding the conduct of the respondent-husband and his habits, the question whether the interest of minor would be served better by his mother as a guardian had to be looked into. It is in the light of the above averments that the question whether the Courts at Delhi have the jurisdiction to entertain a petition for custody of the minor shall have to be answered.
Section 9 of the Guardian and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the Court to entertain a claim for grant of custody of a minor. While sub-Section (1) of Section 9 identifies the court competent to pass an order for the custody of the persons of the minor, sub-sections (2) & (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. Section 9(1) alone is, therefore, relevant for our purpose. It says :
"9. Court having jurisdiction to entertain application - (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides."
It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the `ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. We may before doing so examine the true purpose of the expression `ordinarily resident' appearing in Section 9(1) (supra). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word `ordinary' has been defined by the Black's Law Dictionary as follows:
"Ordinary (Adj.) :Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual."
The word `reside' has been explained similarly as under:
"Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western- Knapp Engineering Co. V. Gillbank, C.C.A. Cal., 129 F2d 135, 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as quality, to be vested as a right. (State ex rel. Bowden v. Jensen Mo., 359 S.W.2d 343, 349.)"
In Websters dictionary also the word `reside' finds a similar meaning, which may be gainfully extracted:
"1. To dwell for a considerable time; to make one's home; live. 2. To exist as an attribute or quality with in. 3. To be vested: with in"
In Mrs. Annie Besant v. Narayaniah AIR 1914 PC 41 the infants had been residing in the district of Chingleput in the Madras Presidency. They were given in custody of Mrs. Annie Besant for the purpose of education and were getting their education in England at the University of Oxford. A case was, however, filed in the district Court of Chingleput for the custody where according to the plaintiff the minors had permanently resided. Repeating the plea that the Chingleput Court was competent to entertain the application their Lordships of the Privy Council observed:
"The district court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act 1890. By the ninth Section of that Act the jurisdiction of the court is confined to infants ordinarily residing in the district.
It is in their Lordship's opinion impossible to hold that the infants who had months previously left India with a view to being educated in England and going to University had acquired their ordinary residence in the district of Chingleput."
In Mst. Jagir Kaur and Anr. v. Jaswant Singh AIR 1963 SC 1521, this Court was dealing with a case under Section 488 Cr.P.C. and the question of jurisdiction of the Court to entertain a petition for maintenance. The Court noticed a near unanimity of opinion as to what is meant by the use of the word "resides" appearing in the provision and held that "resides" implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words:
".......Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases there on, we would define the word "resides" thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case....."
In Kuldip Nayar & Ors. v. Union of India & Ors. 2006 (7) SCC 1, the expression "ordinary residence" as used in the Representation of People Act, 1950 fell for interpretation. This Court observed:
"243. Lexicon refers to Cicutti v. Suffolk County Council (1980) 3 All ER 689 to denote that the word "ordinarily" is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found "ordinarily", in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is "ordinary" and general, rather than merely for some special or limited purpose.
244. The words "ordinarily" and "resident" have been used together in other statutory provisions as well and as per Law Lexicon they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place.
245. The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of the RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency.
246. Thus, residence is a concept that may also be transitory. Even when qualified by the word "ordinarily" the word "resident" would not result in a construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being "ordinarily resident" at a particular place is incapable of ensuring nexus between him and the place in question."
Reference may be made to Bhagyalakshmi and Anr. v. K.N. Narayana Rao AIR 1983 Mad 9, Aparna Banerjee v. Tapan Banerjee AIR 1986 P&H 113, Ram Sarup v. Chimman Lal and Ors. AIR 1952 All 79, Smt. Vimla Devi v. Smt. Maya Devi & Ors. AIR 1981 Raj. 211, and in re: Dr. Giovanni Marco Muzzu and etc. etc. AIR 1983 Bom. 242, in which the High Courts have dealt with the meaning and purport of the expressions like `ordinary resident' and `ordinarily resides' and taken the view that the question whether one is ordinarily residing at a given place depends so much on the intention to make that place ones ordinary abode.
Let us now in the light of the above, look at the rival versions of the parties before us, to determine whether the Court at Delhi has the jurisdiction to entertain the proceedings for custody of master Kush. As seen earlier, the case of the appellant mother is that Kush is ordinarily residing with her in Delhi. In support of that assertion she has among other circumstances placed reliance upon the letter which the respondent, father of the minor child wrote to the appellant on 19th July, 2008. The letter is to the following effect:
"Ruchi,
As you wish to stay in India with Kush and try career option of Dental medicine at Delhi, I give my whole-hearted support and request you to put Kush in an Indo-American school or equivalent at Delhi this year.
Please let me know the expenses involved for education of Kush and I would like to bear completely.
Sd/- Sanjeev
July 19, 2008"
The appellant's case is that although the couple and their son had initially planned to return to U.S.A. that decision was taken with the mutual consent of the parties changed to allow the appellant to stay back in India and to explore career options here. Master Kush was also according to that decision of his parents, to stay back and be admitted to a school in Delhi. The decision on both counts, was free from any duress whatsoever, and had the effect of shifting the "ordinary residence" of the appellant and her son Kush from the place they were living in America to Delhi. Not only this the respondent father of the minor, had upon his return to America sent E-mails, reiterating the decision and offering his full support to the appellant. This is according to the appellant clear from the text of the E-mails exchanged between the parties and which are self-explanatory as to the context in which they are sent.
The respondent's case on the contrary is that he was coerced to put in writing a tentative arrangement on the ground of appellant trying career options in dental medicine at Delhi and minor Kush allowed to stay at Delhi for the year 2008. This letter was, according to the respondent, obtained under deceit, pressure, threat and coercion. In his application challenging the jurisdiction of the Delhi Court the respondent further stated that even if it be assumed that the appellant and Kush had stayed back in India with the permission of the respondent, the same stood withdrawn. To the same effect was the stand taken by the respondent in his petition under Article 227 filed before this Court.
It is evident from the statement and the pleadings of the parties that the question whether the decision to allow the appellant and Kush to stay back in Delhi instead of returning to America was a voluntary decision as claimed by the appellant or a decision taken by the respondent under duress as alleged by him was a seriously disputed question of facts, a satisfactory answer to which could be given either by the District Court where the custody case was filed or by the High Court only after the parties had been given opportunity to adduce evidence in support of their respective versions.
In the light of the above, we asked Mr. Pallav Shishodia, learned senior counsel for the respondent whether the respondent would adduce evidence to substantiate his charge of duress and coercion as vitiating circumstances for the Court to exclude the letter in question from consideration. Mr. Shishodia argued on instructions that the respondent had no intention of leading any evidence in support of his case that the letter was obtained under duress. In fairness to him we must mention that he beseeched us to decide the question regarding jurisdiction of the Court on the available material without remanding the matter to the Trial Court for recording of evidence from either party. Mr. Shishodia also give us an impression as though any remand on the question of duress and coercion would be futile because the respondent father was not willing to go beyond what he has already done in pursuit of his claim to the custody of the minor. In that view of the matter, therefore, we are not remanding the case for recording of evidence as we were at one stage of hearing thought of doing. We are instead taking a final view on the question of jurisdiction of the Delhi Court, to entertain the application on the basis of the available material. This material comprises the letter dated 19th July, 2008 written by the respondent and referred to by us earlier and the e-mails exchanged between the parties. That the letter in question was written by the respondent is not in dispute. What is argued is that the letter was written under duress and coercion. There is nothing before us to substantiate that allegation, and in the face of Mr. Shishodia's categoric statement that the respondent does not wish to adduce any evidence to prove his charge of coercion and duress, we have no option except to hold that the said charge remains unproved.
More importantly the E-mails exchanged between the parties, copies whereof have been placed on record, completely disprove the respondent's case of any coercion or duress. The first of these E-mails is dated the 17th July, 2008 sent by the respondent to his friend in America, pointing out that the appellant was staying back in India with the minor for the present. The text of the E-mail is as under:
"Hi Joanne,
Hope all is well.
I got your voicemail, actually we recently changed our service provider for home phone, please see below our updated contact information.
Home-9187071716
Sanjay mobile - 8054100872, this works in India
Ruchi's mobile remains the same, however it will not work since we are currently in India. I will be back in LA on Jul 2-, however Ruchi wants to stay in Delhi alongwith Kush for now.
Regards,
Sanjeev"
On 21st July, 2008 i.e. a day after the respondent reached America the appellant sent him an e-mail which clearly indicates that the minor was being admitted to a school in Delhi and by which the respondent was asked to send American School's record for that purpose. The e-mail is to the following effect.
"Sanjeev
Also please call up Red Oak elementary and inform them that Kush will be starting American schooling in India for now and request personal recommendation from Mrs. Merfield and Mrs. Johnson, they know Kush v well..Also we need 2 yrs of official school records (one from sumac and other from red oak) Please send $$ asap. I will find if they have a direct deposit at school, to make it easy on u..thanks
Ruchi"
In response to the above, the respondent sent an E-mail which does not in the least, give an impression that the decision to allow master Kush to stay back in Delhi and to get admitted to a School here was taken under any kind of duress or coercion as is now claimed. The E-mail is to the following effect:
`Hi Ruchi,
I checked out website for both American and British schools, the fees for these schools is extremely high between $ 20000 - $ 25000 per annum, this will deduct from Kush's college fund which I have worked hard to create. Also realize that if we take out $ 25,000 from his college fund now, we loose the effect of compounding when he needs $ for college 11 years from now. $ 25000 now will be worth $ 60000-70000 11 yrs from now. I really and honestly feel that we should not deplete Kush's college fund so much at grade 2m rather leave most of it for higher education. Also I see a benefit for him to get into a logical high equality English medium school, he can learn a bit of Hindi. I would be happy to talk to Kush and make sure he is comfortable. Let me know your thoughts."
Equally important is another E-mail which the respondent sent to the appellant regarding surrender of the appellant's car and payment of the outstanding lease money, a circumstance that shows that the parties were ad-idem on the question of the appellant winding up her affairs in America.
"Hi Ruchi,
I checked with Acura regarding breaking your lease, they said that you can surrender the car to them for repossession and then they will try to sell it in private action. You will then need to pay the difference between money raised from private auction and pay off amount. Also this repossession will damage your credit history. Let me know your thoughts.
Hope you are feeling better.
Sanjeev"
Two more E-mails one dated 24.7.2008 and the other dated 19.8.2008 exchanged between the parties on the above subject also bear relevance to the issue at hand andmay be extracted:
"Hi Ruchi,
I did more digging for you on this.
See below information from a broker who may be able to help transfer the lease to another buyer in exchange for the fees mentioned. Let me know how you want to proceed.
Sanjeev"
"Hi Sanjeev
Please proceed with the plan, sell my acura with least damages...this seems like a better option.
Thanks,
Ruchi"
It is difficult to appreciate how the respondent could in the light of the above communications still argue that the decision to allow the appellant and master Kush to stay back in India was taken under any coercion or duress. It is also difficult to appreciate how the respondent could change his mind so soon after the above E-mails and rush to a Court in U.S. for custody of the minor accusing the appellant of illegal abduction, a charge which is belied by his letter dated 19th July, 2008 and the E-mails extracted above. The fact remains that Kush was ordinarily residing with the appellant his mother and has been admitted to a school, where he has been studying for the past nearly three years. The unilateral reversal of a decision by one of the two parents could not change the fact situation as to the minor being an ordinary resident of Delhi, when the decision was taken jointly by both the parents.
In the light of what we have stated above, the High Court was not, in our opinion, right in holding that the respondent's version regarding the letter in question having been obtained under threat and coercion was acceptable. The High Court appeared to be of the view that if the letter had not been written under duress and coercion there was no reason for the respondent to move a guardianship petition before U.S. Court. That reasoning has not appealed to us. The question whether or not the letter was obtained under duress and coercion could not be decided only on the basis of the institution of proceedings by the respondent in the U.S. Court. If the letter was under duress and coercion, there was no reason why the respondent should not have repudiated the same no sooner he landed in America and the alleged duress and coercion had ceased. Far from doing so the respondent continued to support that decision even when he was far away from any duress and coercion alleged by him till the time he suddenly changed his mind and started accusing the appellant of abduction. The High Court failed to notice these aspects and fell in error in accepting the version of the respondent and dismissing the application filed by the appellant. In the circumstances we answer question no.1 in the negative.
Re: Question No.2
Recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so, Courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Criminal Procedure 1908 as amended by the Amendment Act of 1999 and 2002. The duty of a Court exercising its Parens Patraie jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration; the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. That does not, however, mean that the order passed by a foreign court is not even a factor to be kept in view. But it is one thing to consider the foreign judgment to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision. Judicial pronouncements on the subject are not on virgin ground. A long line of decisions of the court has settled the approach to be adopted in such matters. The plentitude of pronouncements also leaves cleavage in the opinions on certain aspects that need to be settled authoritatively in an appropriate case.
A survey of law on the subject would, in that view, be necessary and can start with a reference to the decision of this Court in Smt. Satya V. Shri Teja Singh, (1975) 1 SCC 120. That was a case in which the validity of a decree for divorce obtained by the husband from a Court in the State of Naveda (USA) fell for examination. This Court held that the answer to the question depended upon the Rules of private International Law. Since no system of Private International Law existed that could claim universal recognition, the Indian Courts had to decide the issue regarding the validity of the decree in accordance with the Indian law. Rules of Private International Law followed by other countries could not be adopted mechanically, especially when principles underlying such rules varied greatly and were moulded by the distinctive social, political and economic conditions obtaining in different countries. This Court also traced the development of law in America and England and concluded that while British Parliament had found a solution to the vexed questions of recognition of decrees granted by foreign courts by enacting "The recognition of Divorces and Legal Separations Act, 1971" our Parliament had yet to do so. In the facts and circumstances of that case the Court held that the husband was not domiciled in Naveda and that his brief stay in that State did not confer any jurisdiction upon the Naveda Court to grant a decree dissolving the marriage, he being no more than a bird of passage who had resorted to the proceedings there solely to find jurisdiction and obtain a decree for divorce by misrepresenting the facts as regards his domicile in that State. This Court while refusing to recognize the decree observed:
"True that the concept of domicile is not uniform throughout the world and just as long residence does not by itself establish domicile, a brief residence may not negative it. But residence for a particular purpose falls to answer the qualitative test for, the purpose being accomplished the residence would cease. The residence must answer "a qualitative as well as a quantitative test", that is, the two elements of factum et animus must concur. The respondent went to Naveda forum-hunting, found a convenient jurisdiction which would easily purvey a divorce to him and left it even before the ink on his domiciliary assertion was dry. Thus the decree of the Naveda Court lacks jurisdiction. It can receive no recognition in our courts."
(emphasis ours)
In Dhanwanti Joshi v. Madhav Unde 1998(1) SCC 112, one of the questions that fell for consideration was whether the bringing away of a child to India by his mother contrary to an order of US Court would have any bearing on the decision of the Courts in India while deciding about the custody and the welfare of the child. Relying upon McKee v. KcKee, 1951 AC 352: 1951(1) All ER 942 and J v. C 1970 AC 668:1969(1) All ER 788, this Court held that it was the duty of the Courts in the country to which a child is removed to consider the question of custody, having regard to the welfare of the child. In doing so, the order passed by the foreign court would yield to the welfare of the child and that Comity of Courts simply demanded consideration of any such order issued by foreign courts and not necessarily their enforcement. This court further held that the conduct of a summary or elaborate inquiry on the question of custody by the Court in the country to which the child has been removed will depend upon the facts and circumstance of each case. For instance summary jurisdiction is exercised only if the court to which the child had been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded to hold that it would be better for the child that the merits of the case are investigated in a court in his native country, on the expectation that an early decision in the native country would be in the interests of the child before the child could develop roots in the country to which he had been removed. So also the conduct of an elaborate inquiry may depend upon the time that had elapsed between the removal of the child and the institution of the proceedings for custody. This would mean that longer the time gap, the lesser the inclination of the Court to go for a summary inquiry. The court rejected the prayer for returning the child to the country from where he had been removed and observed:
"31. The facts of the case are that when the respondent moved the courts in India and in the proceedings of 1986 for habeas corpus and under Guardians and Wards Act, the courts in India thought it best in the interests of the child to allow it to continue with the mother in India, and those orders have also become final. The Indian courts in 1993 or 1997, when the child had lived with his mother for nearly 12 years, or more, would not exercise a summary jurisdiction to return the child to USA on the ground that its removal from USA in 1984 was contrary to orders of US courts."
We must at this stage refer to two other decisions of this Court, reliance upon which was placed by the learned counsel for the parties. In Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14 this Court was dealing with an appeal arising out of a habeas corpus petition filed before the High Court of Delhi in respect of two minor children aged 3 years and 7 years respectively. It was alleged that the children were in illegal custody of Sarita Sharma their mother. The High Court had allowed the petition and directed the mother to restore the custody of the children to Sushil Sharma who was in turn permitted to take the children to U.S.A. without any hindrance. One of the contentions that was urged before this Court was that the removal of children from U.S.A. to India was against the orders passed by the American Court, which orders had granted to the father the custody of the minor children. Allowing the appeal and setting aside the judgment of the High Court, this Court held that the order passed by the U.S. courts constituted but one of the factors which could not override the consideration of welfare of the minor children. Considering the fact that the husband was staying with his mother aged about 80 years and that there was no one else in the family to lookafter the children, this Court held that it was not in the interest of the children to be put in the custody of the father who was addicted to excessive alcohol. Even this case arose out of a writ petition and not a petition under the Guardians and Wards Act.
In V. Ravi Chandran (Dr.) (2) v. Union of India and Ors. (2010) 1 SCC 174 also this Court was dealing with a habeas corpus petition filed directly before it under Article 32 of the Constitution. This Court held that while dealing with a case of custody of children removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider whether the court could conduct an elaborate enquiry on the question of custody or deal with the matter summarily and order the parent to return the custody of the child to the country from which he/she was removed, leaving all aspects relating to child's welfare to be investigated by Court in his own country. This Court held that in case an elaborate enquiry was considered appropriate, the order passed by a foreign court may be given due weight depending upon the circumstances of each case in which such an order had been passed. Having said so, this Court directed the child to be sent back to U.S. and issued incidental directions in that regard.
In Shilpa Aggarwal (Ms.) v. Aviral Mittal & Anr. (2010) 1 SCC 591 this Court followed the same line of reasoning. That was also a case arising out of a habeas corpus petition before the High Court of Delhi filed by the father of the child. The High Court had directed the return of the child to England to join the proceedings before the courts of England and Wales failing which the child had to be handed over to the petitioner-father to be taken to England as a measure of interim custody leaving it for the court in that country to determine which parent would be best suited to have the custody of the child. That direction was upheld by this Court with the observation that since the question as to what is in the interest of the minor had to be considered by the court in U.K. in terms of the order passed by the High Court directing return of the child to the jurisdiction of the said court did not call for any interference.
We do not propose to burden this judgment by referring to a long line of other decisions which have been delivered on the subject, for they do not in our opinion state the law differently from what has been stated in the decisions already referred to by us. What, however, needs to be stated for the sake of a clear understanding of the legal position is that the cases to which we have drawn attention, as indeed any other case raising the question of jurisdiction of the court to determine mutual rights and obligation of the parties, including the question whether a court otherwise competent to entertain the proceedings concerning the custody of the minor, ought to hold a summary or a detailed enquiry into the matter and whether it ought to decline jurisdiction on the principle of comity of nations or the test of the closest contact evolved by this Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 have arisen either out of writ proceedings filed by the aggrieved party in the High Court or this Court or out of proceedings under the Guardian & Wards Act. Decisions rendered by this Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42, Sarita Sharma's case (supra), V. Ravi Chandran's case (supra), Shilpa Aggarwal's case (supra) arose out of proceedings in the nature of habeas corpus. The rest had their origin in custody proceedings launched under the Guardian & Wards Act. Proceedings in the nature of Habeas Corpus are summary in nature, where the legality of the detention of the alleged detenue is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extra ordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the court views the rival claims, if any, to such custody. The Court may also direct repatriation of the minor child for the country from where he/she may have been removed by a parent or other person; as was directed by this Court in Ravi Chandran's & Shilpa Agarwal's cases (supra) or refuse to do so as was the position in Sarita Sharma's case (supra). What is important is that so long as the alleged detenue is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arises. The writ court's jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenue is within its territorial jurisdiction.
In cases arising out of proceedings under the Guardian & Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ court on the one hand and a court under the Guardian & Wards Act on the other. Having said that we must make it clear that no matter a Court is exercising powers under the Guardian & Wards Act it can choose to hold a summary enquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act. This is clear from the decision of this Court in Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112, which arose out of proceedings under the Guardian & Wards Act. The following passage is in this regard apposite:
"We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, -- which were independently considered -- it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to H. (infants), Re (1966) 1 ALL ER 886 which case, as pointed out by us above has been explained in L. Re (1974) 1 All ER 913, CA as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee (1951) 1 All ER 942 and J v. C (1969) 1 All ER 788 and the distinction between summary and elaborate inquiries as stated in L. (infants), Re (1974) 1 All ER 913, CA are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 -- even assuming that the earlier orders passed in India do not operate as constructive res judicata."
It does not require much persuasion for us to hold that the issue whether the Court should hold a summary or a detailed enquiry would arise only if the Court finds that it has the jurisdiction to entertain the matter. If the answer to the question touching jurisdiction is in the negative the logical result has to be an order of dismissal of the proceedings or return of the application for presentation before the Court competent to entertain the same. A Court that has no jurisdiction to entertain a petition for custody cannot pass any order or issue any direction for the return of the child to the country from where he has been removed, no matter such removal is found to be in violation of an order issued by a Court in that country. The party aggrieved of such removal, may seek any other remedy legally open to it. But no redress to such a party will be permissible before the Court who finds that it has no jurisdiction to entertain the proceedings.
We have while dealing with question No.1 above held that the Court at Delhi was in the facts and circumstances of the case competent to entertain the application filed by the appellant. What needs to be examined is whether the High Court was right in relying upon the principle of comity of courts and dismissing the application. Our answer is in the negative. The reasons are not far to seek. The first and foremost of them being that `comity of courts' principle ensures that foreign judgments and orders are unconditionally conclusive of the matter in controversy. This is all the more so where the courts in this country deal with matters concerning the interest and welfare of minors including their custody. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. Decisions of this Court in Dhanwanti Joshi, and Sarita Sharma's cases, (supra) clearly support that proposition.
Secondly, the respondent's case that the minor was removed from the jurisdiction of the American Courts in contravention of the orders passed by them, is not factually correct. Unlike V. Ravi Chandran's case (supra), where the minor was removed in violation of an order passed by the American Court there were no proceedings between the parties in any Court in America before they came to India with the minor. Such proceedings were instituted by the respondent only after he had agreed to leave the appellant and the minor behind in India, for the former to explore career options and the latter to get admitted to a school. The charge of abduction contrary to a valid order granting custody is, therefore, untenable.
Thirdly, because the minor has been living in India and pursuing his studies in a reputed school in Delhi for nearly three years now. In the course of the hearing of the case, we had an occasion to interact with the minor in our chambers. He appears to be happy with his studies and school and does not evince any interest in returning to his school in America. His concern was more related to the abduction charge and consequent harassment being faced by his mother and maternal grandparents. We shall advert to this aspect a little later, but for the present we only need to mention that the minor appears to be settled in his environment including his school studies and friends. He also holds the respondent responsible for the troubles which his mother is undergoing and is quite critical about the respondent getting married to another woman.
Fourthly, because even the respondent does not grudge the appellant getting custody of the minor, provided she returns to America with the minor. Mr. Shishodia was asking to make a solemn statement that the respondent would not, oppose the appellant's prayer for the custody of the minor, before the American Court. All that the respondent wants is that the minor is brought up and educated in America, instead of India, as the minor would benefit from the same.
The appellant was not willing to accept that proposal, for according to her she has no intentions of returning to that country in the foreseeable future especially after she has had a very traumatic period on account of matrimonial discord with the respondent. Besides, the offer was according to the appellant, only meant to score a point more than giving any real benefit to the minor.
In the light of all these circumstances, repatriation of the minor to the United States, on the principle of `comity of courts' does not appear to us to be an acceptable option worthy of being exercised at this stage. Dismissal of the application for custody in disregard of the attendant circumstances referred to above was not in our view a proper exercise of discretion by the High Court. Interest of the minor shall be better served if he continued in the custody of his mother the appellant in this appeal, especially when the respondent has contracted a second marriage and did not appear to be keen for having actual custody of the minor. Question No.2 is also for the above reasons answered in the negative.
Re. Question No.3
The order of the Delhi Court granting interim custody of the minor to the appellant did not make any provision for visitation rights of the respondent father of the child. In the ordinary course the court ought to have done so not only because even an interim order of custody in favour of the parent should not insulate the minor from the parental touch and influence of the other parent which is so very important for the healthy growth of the minor and the development of his personality. It is noteworthy that even the respondent did not claim such rights in his application or in the proceedings before the High Court. Indeed Mr. Shishodia expressed serious apprehensions about the safety of his client, if he were to visit India in order to meet the child and associate with him. Some of these apprehensions may not be entirely out of place but that does not mean that the courts below could not grant redress against the same. One of these apprehensions is that the respondent may be involved in a false case under Section 498A & 406 of the IPC or provisions like the Prohibition of Dowry Act 1961. A case FIR No.97 dated 7.7.2009 has, in fact, been registered against the respondent, which has been quashed by the High Court by its order dated 22nd September, 2010 passed in Crl. M.C. No.3329 of 2009. We have by our order of even date dismissed an appeal against the said order, which must effectively give a quietus to that controversy, and allay the apprehension of the respondent. Not only that we are inclined to issue further directions to ensure that the respondent does not have any legal or other impediment in exercising his visitation rights.
The question then is what should the visitation rights be and how should the same be exercised. But before we examine that aspect, we may advert to the need for the visitation rights of the father to be recognised in the peculiar circumstances of this case. From what we gathered in the course of an interactive session with the minor, we concluded that the minor has been thoroughly antagonized against the respondent father. He held him responsible for his inability to travel to Malaysia, with his grandparents because if he does so, both the mother and her parents will be arrested on the charge of abduction of the minor. He also held the respondent responsible for his grandparent's skin problems and other worries. He wanted to stay only in India and wanted to be left alone by the respondent. He was reluctantly agreeable to meeting and associating with the respondent provided the respondent has the red corner notice withdrawn so that he and his grandparents can travel abroad.
For a boy so young in years, these and other expressions suggesting a deep rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire for his father does not serve his interest or his growth as a normal child. It is important that the minor has his father's care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the child's healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Since the respondent is living in another continent such contact cannot be for obvious reasons as frequent as it may have been if they were in the same city. But the forbidding distance that separates the two would get reduced thanks to the modern technology in telecommunications. The appellant has been according to the respondent persistently preventing even telephonic contact between the father and the son. May be the son has been so poisoned against him that he does not evince any interest in the father. Be that as it may telephonic contact shall not be prevented by the appellant for any reason whatsoever and shall be encouraged at all reasonable time. Video conferencing may also be possible between the two which too shall not only be permitted but encouraged by the appellant.
Besides, the father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment from the mother or her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial Court after verifying the convenience of both the parties in this regard. The trial Court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in the matter.
For the vacations in summer, spring and winter the respondent shall be allowed to take the minor with him for night stay for a period of one week initially and for longer periods in later years, subject to the respondent getting the itinerary in this regard approved from the Guardian & Wards Court. The respondent shall also be free to take the minor out of Delhi subject to the same condition. The respondent shall for that purpose be given the temporary custody of the minor in presence of the trial court, on any working day on the application of the respondent. Return of the minor to the appellant shall also be accordingly before the trial court on a date to be fixed by the court for that purpose. The above directions are subject to the condition that the respondent does not remove the child from the jurisdiction of this Court pending final disposal of the application for grant of custody by the Guardian and Wards Court, Delhi. We make it clear that within the broad parameters of the directions regarding visitation rights of the respondent, the parties shall be free to seek further directions from the Court seized of the guardianship proceedings; to take care of any difficulties that may arise in the actual implementation of this order.
CRIMINAL APPEAL NO. 1184 OF 2011
(Arising out of SLP (Crl.) No.10362 of 2010)
In this appeal the appellant has challenged the correctness of an order dated 22nd September, 2010 passed by the High Court of Delhi, quashing FIR No.97 of 2009 registered against respondent-husband and three others in Police Station, Crime against Women Cell, Nanakpura, New Delhi, for offences punishable under Sections 498A, 406 read with Section 34 IPC. The High Court has recapitulated the relevant facts and found that the appellant-complainant is a citizen of USA and had all along lived in USA with her son and husband, away from her in laws. The High Court has, on the basis of the statement made by the appellant in California Court, further found that the alleged scene of occurrence was in USA and that her in-laws had no say in the matrimonial life of the couple. The appellant had further stated that all her jewelry was lying in the couple's house in USA and no part of it was with her in-laws as was subsequently stated to be the position in the FIR lodged by the appellant. No locker number of the bank was disclosed in the FIR nor any date of the opening of locker or the jewelry items lying in it. The particulars of the bank in which the alleged locker was taken by him were also not given in the FIR. The High Court further held that the appellant had not lodged any report although the appellant's parents in-laws were alleged to have stated that the jewelry items were not commensurate with the status of their family as early as in the year 1996. The High Court in that view held that no offence under Section 498A and 406 IPC, was made out against her in-laws on the basis of the allegations made by the appellant in the FIR.
Having heard learned counsel for the parties we are of the opinion that in the light of the findings recorded by the High Court the correctness whereof were not disputed before us, the High Court was justified in quashing the FIR filed by the appellant. In fairness to the learned counsel, we must mention that although a feeble attempt was made during the course of hearing to assail the order passed by the High Court, that pursuit was soon given up by him. In that view of the matter we see no reason to interfere with the orders passed by the High Court in Crl. M.C. No.3329 of 2009.
In the result
(i) Civil Appeal is allowed and order dated 8th March, 2010 passed by the High Court hereby set aside. Consequently, proceedings in G.P. No.361/2001 filed by the appellant shall go on and be disposed of on the merits as expeditiously as possible.
(ii) Order granting interim custody of minor Kush with appellant is resultantly affirmed subject to the grant of visitation right to the father as indicated in body of the order.
(iii) The observations made in this order shall not prejudice the cases of the parties before the trial Court and shall be understood to have been made only for purposes of this appeal except in so far as the question of jurisdiction of the trial Court is concerned which aspect shall be taken to have been finally decided by this Court.
(iv) All authorities statutory or otherwise shall act in aid of the directions given hereinabove.
(v) Criminal Appeal No. 1184 of 2011, (Arising out of SLP (Crl.) No.10362 of 2010) is dismissed.
(vi) The parties are left to bear their own costs in this Court and the Courts below.

Amar Singh vs Union of India and others: Judgment SC

SUPREME COURT OF INDIA
Hon'ble Mr. Justice G.S. Singhvi and Hon'ble Mr. Justice Asok Kumar Ganguly
Amar Singh: Petitioner
versus
Union of India & others Respondent(s)
Case No: Writ Petition (Civil) No. 39 of 2006
11 May 2011

In this important case, the Supreme Court has opined that the service provider has to act as a responsible agency and while there is urgent necessity on the part of the service provider to act on a communication, at the same time, the respondent No.8 is equally duty bound to immediately verify the authenticity of such communication — total suppression in the writ petition of the fact that the petitioner gave a 161 statement in the investigation in connection with an FIR to find out the genuineness of those very documents on the basis of which the writ petition was moved — the Supreme Court held that the petitioner attempted to mislead the Court on the basis of frivolous allegations and by suppression of material facts — thus the writ petition of Amar Singh was dismissed by the Supreme Court.

JUDGMENT
Ganguly, J.:- In this writ petition, filed under Article 32, the petitioner is seeking to protect his fundamental right to privacy under Article 21 of the Constitution of India. The petitioner's case is that on the basis of his information from various sources, he had learnt that the Government of India and the Government of National Capital Region of Delhi, being pressurised by the respondent No.7, had been intercepting the petitioner's conversation on phone, monitoring them and recording them. The petitioner had been availing of the telephone services of M/s Reliance Infocom Ltd., impleaded herein as respondent no.8. He further referred to similar cases of interception of phone conversations of other people, including some of the country's leading political figures, who were using services provided by M/s Reliance Infocom Ltd. and other service providers. Such interception of conversation, according to the petitioner, amounts to intrusion on the privacy of the affected people, and is motivated by political ill will and has been directed only towards those who are not aligned with the political party in power at the Centre. He submitted that this infringement of his fundamental rights was symptomatic of the erosion of the democratic values in the country. He prayed that the Court may declare the orders for interception unconstitutional and therefore void, and initiate a judicial inquiry into the issuance and execution of these orders, and prayed that damages be awarded to him. It was further prayed that all the telecom service providers including M/s. Reliance Infocom, along with all the others who had been impleaded, be directed to disclose all the relevant details with respect to the directions of interception issued to them by the authorities, and this Court may lay down guidelines on interception of phone conversations in addition to the ones laid down by this Court in its judgment in People's Union for Civil Liberties (PUCL) v. Union of India and Another (1997) 1 SCC 301.
2. The petitioner's case is that a request dated 22nd October, 2005 was issued from the office of the Joint Commissioner of Police (Crime), New Delhi to the Nodal Officer, Reliance Infocom Ltd., Delhi, for the interception of all the calls made from or to the telephone numbers of the petitioner. This request was subsequently followed by an order dated 9th November, 2005, from the Principal Secretary (Home), Government of National Capital Territory of Delhi, authorising the said request. The case of respondent no. 8 is that the said orders were acted upon by it, and the petitioner's conversations were intercepted. However, the Union of India, and the National Capital Territory of Delhi denied the allegations. They submitted that said orders annexed to the petition, purporting to be issued by the Joint Commissioner of Police, (Crime), New Delhi, and the Principal Secretary (Home), Government of National Capital Territory of Delhi are fabricated with forged signatures and they are not genuine. Alleging forgery, a criminal case in that respect had already been initiated.
3. In the course of the hearing, by filing an interlocutory application (no.2 of 2006) the petitioner submitted that the recordings of the said conversations had been made available to some journalists/news agencies. In view of these submissions, this Court directed the electronic and the print media not to publish any part of the said conversations, vide Court's order dated 27th February, 2006.
4. Various applications for intervention were preferred, especially by civil society groups. These applications were allowed. The interveners argued that the conversations by the petitioner were mostly made in his capacity as a public functionary and, therefore, were public in nature, and the citizens of the country have a right to know their contents under Article 19(1)(a) of the Constitution. A prayer was therefore made by them to vacate the order of injunction.
5. In this matter pursuant to the direction of this Court, a detailed affidavit has been filed by one R. Chopra, Joint Secretary (Home Department) of the Government of National Capital Territory of Delhi, in which it has been clearly stated that the Principal Secretary (Home) in the Government of National Capital Territory of Delhi, is authorised by the Lieutenant Governor of Delhi to exercise powers to order interception of phone conversation for a period specified in such orders in accordance with the provisions of Section 5 of Indian Telegraph Act, 1885 (the said Act). From the order of authorisation dated 10th December, 1997, it appears that the same was issued pursuant to the judgment of this Court dated 18th December, 1996 in People's Union for Civil Liberties (supra) and also Section 5 (2) read with the Government of India, States Ministry Notification No. 104-J, dated 24th October, 1950.
6. In the said affidavit it has been clearly stated by the deponent that no request for interception is examined by the Home Department unless it is accompanied by a confirmation that the same has the prior approval of the Commissioner of Police, Delhi. It was clarified that no Joint Commissioner of Police or police officer of any other rank can directly request for an interception, without first obtaining a prior approval of the Commissioner of Police. It was also clarified that no phone interception order is suo motu issued by the Principal Secretary (Home) without a request from the Government agency. Majority of interception requests, received by the Principal Secretary (Home), are from Delhi Police.
7. In respect of the petitioner's telephone no. (011 39565414), the deponent specifically stated that no order for interception of the said number was ever issued either on 9th November, 2005, or earlier, or for that matter, even later. The categorical denial in this respect in the said affidavit is set out below.
(v)...This categorical denial is being submitted after careful scrutiny of all the relevant records. Also it is respectfully stated on the basis of careful scrutiny of records, that no request for interception of the petitioner's telephone number 011 39565414 was received by the Principal Secretary (Home)/respondent no. 4 from any Police Officer or for that matter any agency, governmental / police or otherwise.
(vi) In view of this, the order bearing no. F. 5/1462/2004 - HG dated 9.11.2005, a copy of which is appended to the writ petition at page 28 as Annexure B, and having an endorsement No. F. 5/1462/2004 - HG/7162 of the same date, and purportedly issued under the signature of the then Principal Secretary (Home), is forged and fabricated document.
8. An affidavit has also been filed on behalf of Union of India by one Mr. J.P.S. Verma, Deputy Secretary, Ministry of home affairs, North Block, New Delhi, in which reference was made to certain orders passed by this Court in this petition, and thereafter, reference was also made to the judgment of this Court in People's Union for Civil Liberties (supra), and the various provisions of Indian Telegraph Act. The Central Government made it very clear that it was fully aware of the sensitivity relating to the conversations on telephone, and the privacy rights thereon. Reference was also made to technological measures to avoid unauthorised interceptions and the changed security scenario.
9. In this matter an additional affidavit has been filed by Shri Alok Kumar, Deputy Commissioner of Police, Headquarters. In that affidavit it has been stated, that on inquiry by the Additional Police Commissioner (Crimes), it was discovered that the purported order of Joint Commissioner of Police (Crime) and Principal Secretary (Home) on the basis of which interceptions were alleged by the petitioner were forged documents.
10. Consequent on the same report, an FIR No.152/2005. had been lodged under Sections 419, 420 468, 471 and 120B of I.P.C., read with Sections 20, 21 and 26 of the Indian Telegraph Act, on 30th December, 2005. In the said investigation the statement of the petitioner was also recorded under Section 161 of the Cr.P.C. In a subsequent affidavit filed by Mangesh Kashyap, Deputy Commissioner of Police, Headquarters on 8th February, 2011, it has been stated by the deponent that the Final Report in connection with the said investigation was filed before the competent Court on 15th February, 2006 and the charges were framed on 6th February, 2010. Four accused persons in the said case were charged under Section 120B read with Sections 420 and 471 of I.P.C. and Section 25 of the Indian Telegraph Act. In addition, Bhupender Singh had been charged under Section 201, I.P.C. and Anurag Singh was charged under Section 419, I.P.C. The trial in the said case has commenced and one witness, Shri Ranjit Narain the then Joint Commissioner of Police was examined.
11. Here we may point out the casual manner in which the petitioner approached the Court. The affidavit filed by the petitioner in support of his petition, and relying on which this Court issued notice on 24th January, 2006, is not at all modelled either on order XIX Rule 3 of the Code of Civil Procedure, or Order XI of the Supreme Court Rules, 1966. The relevant portion of the petitioner's affidavit runs as under:
"1.That I am the Petitioner in the above Writ Petition and am conversant with the facts and circumstances of the case. As such, I am competent to swear this affidavit.
2.That I have read the contents of paras 1 to 9 on pages 1 to 24 of the accompanying Writ Petition and have understood the same. I state that what is stated therein is true to my knowledge and belief.
3.That I have read the accompanying List of Dates and Events from pages B to D and have understood the same. I state that what is stated therein, is true to my knowledge and belief."
12. The provision of Order XIX of Code of Civil Procedure, deals with affidavit. Rule 3 (1) of Order XIX which deals with matters to which the affidavit shall be confined provides as follows:
"Matters to which affidavits shall be confined. - (1) affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated."
13. Order XI of the Supreme Court Rules 1966 deals with affidavits. Rule 5 of Order XI is a virtual replica of Order XIX Rule 3 (1). Order XI Rule 5 of the Supreme Court Rules is therefore set out:
"Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated."
14. In this connection Rule 13 of Order XI of the aforesaid Rules are also relevant and is set out below:
"13. In this Order, `affidavit' includes a petition or other document required to be sworn or verified; and `sworn' includes affirmed. In the verification of petitions, pleadings or other proceedings, statements based on personal knowledge shall be distinguished from statements based on information and belief. In the case of statements based on information, the deponent shall disclose the source of this information."
15. The importance of affidavits strictly conforming to the requirements of Order XIX Rule 3 of the Code has been laid down by the Calcutta High Court as early as in 1910 in the case of Padmabati Dasi v. Rasik Lal Dhar [(1910) Indian Law Reporter 37 Calcutta 259]. An erudite Bench, comprising Chief Justice Lawrence H. Jenkins and Woodroffe, J. laid down:
"We desire to impress on those who propose to rely on affidavits that, in future, the provisions of Order XIX, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be sage to act on the deponent's belief."
16. This position was subsequently affirmed by Constitution Bench of this Court in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317. Vivian Bose, J. speaking for the Court, held:
"We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention to the remarks of Jenkins, C. J. and Woodroffe, J. in Padmabati Dasi vs. Rasik Lal Dhar 37 Cal 259 and endorse the learned Judges' observations."
17. In Barium Chemicals Limited and another v. Company Law Board and others, AIR 1967 SC 295, another Constitution Bench of this Court upheld the same principle:
"The question then is: What were the materials placed by the appellants in support of this case which the respondents had to answer? According to Paragraph 27 of the petition, the proximate cause for the issuance of the order was the discussion that the two friends of the 2nd respondent had with him, the petition which they filed at his instance and the direction which the 2nd respondent gave to respondent No. 7. But these allegations are not grounded on any knowledge but only on reasons to believe. Even for their reasons to believe, the appellants do not disclose any information on which they were founded. No particulars as to the alleged discussion with the 2nd respondent, or of the petition which the said two friends were said to have made, such as its contents, its time or to which authority it was made are forthcoming. It is true that in a case of this kind it would be difficult for a petitioner to have personal knowledge in regard to an averment of mala fides, but then were such knowledge is wanting he has to disclose his source of information so that the other side gets a fair chance to verify it and make an effective answer. In such a situation, this Court had to observe in 1952 SCR 674: AIR 1952 SC 317, that as slipshod verifications of affidavits might lead to their rejection, they should be modelled on the lines of O. XIX, R. 3 of the Civil Procedure Code and that where an averment is not based on personal knowledge, the source of information should be clearly deposed. In making these observations this Court endorse the remarks as regards verification made in the Calcutta decision in Padmabati Dasi v. Rasik Lal Dhar, (1910) ILR 37 Cal 259."
18. Another Constitution Bench of this Court in A. K. K. Nambiar v. Union of India and another, AIR 1970 SC 652, held as follows:
"The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence."
19. In the case of Virendra Kumar Saklecha v. Jagjiwan and others, [(1972) 1 SCC 826], this Court while dealing with an election petition dealt with the importance of disclosure of source of information in an affidavit. This Court held that non-disclosure will indicate that the election petitioner did not come forward with the source of information at the first opportunity. The importance of disclosing such source is to give the other side notice of the same and also to give an opportunity to the other side to test the veracity and genuineness of the source of information. The same principle also applies to the petitioner in this petition under Article 32 which is based on allegations of political motivation against some political parties in causing alleged interception of his telephone. The absence of such disclosure in the affidavit, which was filed along with the petition, raises a prima facie impression that the writ petition was based on unreliable facts.
20. In case of M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab and others, [(1982) 1 SCC 31], a three Judge Bench of this Court in dealing with petitions under Article 32 of the Constitution held that under Order XIX Rule 3 of the Code it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particulars. In a case where allegations in the petition are not affirmed, as aforesaid, it cannot be treated as supported by an affidavit as required by law. (See para 12 page 38)
21. The purpose of Rules 5 and 13 of the Supreme Court Rules, set out above, has been explained by this Court in the case of Smt. Savitramma v. Cicil Naronha and another, AIR 1988 SCC 1987. This Court held, in para 2 at page 1988, as follows:
"...In the case of statements based on information the deponent shall disclose the source of his information. Similar provisions are contained in Order 19, Rule 3 of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be in accordance with Order XI, Rules 5 and 13 of the Supreme Court Rules. The purpose underlying Rules 5 and 13 of Order XI of the Supreme Court Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief as this is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit...."
22. In the same paragraph it has also been stated as follows:
"...If the statement of facts is based on information the source of information must be disclosed in the affidavit. An affidavit which does not comply with the provisions of Order XI of the Supreme Court Rules, has no probative value and it is liable to be rejected..."
23. In laying down the aforesaid principles, this Court in Smt. Savitramma (supra) relied on a full Bench judgment in Purushottam Jog Naik (supra).
24. In the instant case, the petitioner invoked the extraordinary writ jurisdiction of this Court under Article 32, without filing a proper affidavit as required in terms of Order XIX Rule 3 of the Code. Apart from the fact that the petitioner invoked Article 32, the nature of the challenge in his petition is very serious in the sense that he is alleging an attempt by the government of intercepting his phone and he is further alleging that in making this attempt the government is acting on extraneous considerations, and is virtually acting in furtherance of the design of the ruling party. It is, therefore, imperative that before making such an allegation the petitioner should be careful, circumspect and file a proper affidavit in support of his averment in the petition.
25. In our judgment, this is the primary duty of a petitioner who invokes the extraordinary jurisdiction of this Court under Article 32.
26. It is very disturbing to find that on the basis of such improper and slipshod affidavit, notice was issued on the petition, as stated above, and subsequently a detailed interim order was passed on 27th February, 2006 to the following effect:
"Mr. Mukul Rohtagi, learned senior counsel, on behalf of the petitioner submits that till this Court decides the guidelines in respect of tapping of telephones, a general order of restraint may be passed restraining publication by either electronic or print media of unauthorised tape record versions, We have asked the view points and assistance of Mr. Goolam E. Vahanavati, learned Solicitor General and Mr. Gopal Subramaniam, learned Additional Solicitor General. Both learned counsel submit that they see no prejudice for the order of restrain as sought for by Mr. Rohtagi being made." Having regard to the facts and circumstances, we direct that electronic and print media would not publish/display the unauthorisedly and illegally recorded telephone tapped versions of any person till the matter is further heard and guidelines issued by this Court.
27. That interim order continued for about four years and is continuing till now.
28. Then when in the course of hearing of this case, it was pointed out by this Court on 2nd February, 2011 that the affidavit filed by the petitioner is perfunctory, defective and not in accordance with the mandate of law, a prayer was made by the learned Senior Counsel of the petitioner to file a proper affidavit as required under the law. Similar prayer was made by the learned Solicitor General for the official respondents, and the case was adjourned. Thereupon a detailed affidavit has been filed by the petitioner.
29. It appears from the detailed affidavit filed by the petitioner, pursuant to the order of this Court dated 2nd February, 2011, that the main documents on which the writ petition is based, namely Annexures A and B, the orders dated 22nd October, and 9th November, 2005 were obtained by him from Mr. Anurag Singh, who is one of the accused and was arrested in the aforesaid criminal case. It also appears that petitioner's averments in paragraphs 2(v), 2(vii), 2(viii) and 2(ix) are based on information derived from the same Anurag Singh and that part of the information relating to the averments in para 5 of the writ petition was also obtained from the same Mr. Anurag Singh. The petitioner, therefore, largely relied on information received from an accused in a criminal case while he filed his petition under Article 32.
30. The affidavit filed by Mr. R. Chopra on behalf of the Government of National Capital Territory, New Delhi is of some relevance in connection with the part played by respondent No.8.
31. In paragraph I, sub paragraph (IV), while giving para wise reply to the writ petition, it has been reiterated that in the order dated 9th November, 2005 (Annexure `B' to the writ petition) there are glaring discrepancies. Those discrepancies which have been noted are as follows:
"...(iv) It is vehemently denied that the interception order dated 9th November,2005 was issued by the Principal Secretary(Home) or any other officer of the Home Department of Government of NCT of Delhi in respect of phone No. 011-39565414 belonging to the petitioner, at any time. The order dated 9th November 2005 is forged and fabricated. That prima facie on close scrutiny of the purported order No. F.5/1462/2004-HG dated 9.11.2005 issued by the Principal Secretary(Home), Govt. of NCT of Delhi and endorsement No. F.5/1462/2004-HG/7162 of the same date purportedly issued by the Deputy Secretary(Home) which has been annexed as Annexure B to the writ petition following discrepancies can be noted and they are as follows:-
(a) The number of file i.e. No. F.5/1462/2004-HG cited on the left hand top of the order, is on the fact of it, erroneous, as a letter mentioning the year 2004 cannot be issued in the year 2005, as the forged/fabricated order of 9/11/2005 purports to do.
(b) It is further submitted that the interception file No. F.5/1462/2004-HG in Home Department pertains to interception of some other telephone number, which do not mention the petitioner's number. It is pertinent to mention that the interception order in the above file was issued on 22.12.2004 i.e. nine months earlier than the purported interception with the petitioner's telephone number.
(c) This shows that the aforementioned file number was simply written on the fabricated or forged order of 9th November 2005 referred to above, which has been cited by the petitioner in his writ petition.
(d) It is respectfully submitted that signatures of the then Principal Secretary (Home) and those of then Deputy Secretary(Home) have been forged and fabricated.
(e) It is respectfully submitted that the file endorsement number in the purported interception order dated 9th November, 2005 there is mention of No. F.5/1462/2004-HG/7162. This dispatch number 7162 is itself wrong and fake as the dispatch number 7162 was given to a communication issued on 10th November 2005 and this concerned the forwarding of a dismissal order against a Deputy Superintendent of the Central Jail Tihar.
32. Apart from the various discrepancies, the deponent also pointed out in sub paragraph (f) of para I (IV) the following gross spelling mistakes in the purported order dated 9.11.2005:
(i) On the first line the words "satisfied" and "interest" have been mis-spelt as "setisfied" and "intrest"
(ii) On the second line the word "interest" has been mis-spelt as "intrest"
(iii)On the fifth line the word "disclosure" has been mis-spelt as "dicloser".
(iv)On the eighth line the word "the" has been mis-spelt as "te". The word Rules" has been mis-spelt as "Ruls" and word "exercise" has been mis-spelt as "exercies".
(v)In the eleventh line the word "message" has been mis-spelt as "massage", while on the 12th line the word "messages" has been mis-spelt as "massage"
(vi)In the endorsement forwarding the copies the purported order of 9th November, 2005 the word "Additional Commissioner" has been mis-spelt as "Addi commissioner" and on the following line words "Chairman" and "Committee" have been mis-spelt as "Cairman" and "Committe" respectively.
33. In view of such disclosures in the affidavit of the Police authorities as also in the affidavit filed by Mr. Chopra on behalf of Delhi Administration, it appeared strange to this court how the service provider, respondent no. 8 could act on the basis of communications dated 22.10.2005 and 9.11.2005. To this Court, it appeared that any reasonable person or a reasonable body of persons or an institution which is discharging public duty as a service provider, before acting on an order like the one dated 9.11.2005, would at least carefully read its contents. Even from a casual reading of the purported communication dated 9.11.2005, containing so many gross mistakes, one would reasonably be suspicious of the authenticity of its text.
34. A query in this respect, made by the Court, was answered in a subsequent affidavit, filed on behalf of the respondent No.8, by one Col. A.K. Sachdeva, working as its Nodal Officer.
35. In the said affidavit it has been stated that similar orders containing comparable mistakes were issued by respondent No.4 and that it was impossible for the service provider to devise a practice on the basis of which the service provider could postpone interception on the ground of gross mistakes instead of taking an immediate action which is required for the safety of general public and in public interest.
36. It is further stated that when a request is made to the service provider, it is duty bound to comply with the same and there is no provision in the rule under which the service provider could send back the written request pointing out the mistakes contained therein.
37. Reference has also been made to License Condition No. 42 which provides that service provider is to give assistance, as per request, to the Law Enforcement Agencies and any violation of the said condition may lead to imposition of a heavy penalty on the service provider.
38. Considering the materials on record, this Court is of the opinion that it is no doubt true that the service provider has to act on an urgent basis and has to act in public interest. But in a given case, like the present one, where the impugned communication dated 9.11.2005 is full of gross mistakes, the service provider while immediately acting upon the same, should simultaneously verify the authenticity of the same from the author of the document. This Court is of the opinion that the service provider has to act as a responsible agency and cannot act on any communication. Sanctity and regularity in official communication in such matters must be maintained especially when the service provider is taking the serious step of intercepting the telephone conversation of a person and by doing so is invading the privacy right of the person concerned and which is a fundamental right protected under the Constitution, as has been held by this Court.
39. Therefore, while there is urgent necessity on the part of the service provider to act on a communication, at the same time, the respondent No.8 is equally duty bound to immediately verify the authenticity of such communication if on a reasonable reading of the same, it appears to any person, acting bona fide, that such communication, with innumerable mistakes, falls clearly short of the tenor of a genuine official communication. Therefore, the explanation of the service provider is not acceptable to this Court. If the service provider could have shown, which it has not done in the present case, that it had tried to ascertain from the author of the communication, its genuineness, but had not received any response or that the authority had accepted the communication as genuine, the service provider's duty would have been over. But the mere stand that there is no provision under the rule to do so is a lame excuse, especially having regard to the public element involved in the working of the service provider and the consequential effect it has on the fundamental right of the person concerned.
40. In view of the public nature of the function of a service provider, it is inherent in its duty to act carefully and with a sense of responsibility. This Court is thus constrained to observe that in discharging the said duty, respondent No. 8, the service provider has failed.
41. Of course, this Court is not suggesting that in the name of verifying the authenticity of any written request for interception, the service provider will sit upon it. The service provider must immediately act upon such written request but when the communication bristles with gross mistakes, as in the present case, it is the duty of the service provider to simultaneously verify its authenticity while at the same time also act upon it. The Central Government must, therefore, frame certain statutory guidelines in this regard to prevent interception of telephone conversation on unauthorised communication, as has been done in this case.
42. In this case very strange things have happened. At the time of filing the writ petition, the petitioner impleaded the Indian National Congress as respondent No.7 and also made direct allegations against it in paras 2(1), 2(10), 2(11) and 2(12). In para 2(12) and in para 5 of the writ petition, there are indirect references to the said respondent. In various grounds taken in support of the petition, allegations have been specifically made against the 7th respondent.
43. Even though in the order of this Court dated 27th February, 2006, there is an observation that respondent No. 7 has been impleaded unnecessarily, the said respondent has not been deleted and in the amended cause title also, respondent No. 7 remains impleaded. The averments against the said respondent were not withdrawn by the petitioner.
44. In the month of February of 2011, towards the closing of the hearing, an additional affidavit, which makes very interesting reading, was filed by the petitioner. All the three paragraphs of that affidavit are set out:
"I, Amar Singh, son of late Shri H. G. Singh, aged 54 years residing at 27, Lodhi Estate New Delhi, do hereby solemnly swear on oath as under: -
1. That I am the petitioner in the above matter and am conversant with the facts and circumstances of the case and as such competent to swear this affidavit. The Petitioner craves leave of this Hon'ble Court to place the following additional facts on record before this Hon'ble Court which has a bearing on the matter.
2. That the Petitioner was informed by one Mr. Anurag Singh, alias Rahul, who is one of the accused in the FIR No. 152/2005, registered in Delhi that his phone was being tapped at the behest of political opponents. However, later the Delhi Police investigated the mater and the said Anurag Singh alias Rahul, was arrested by the Delhi Police for forging and fabricating the orders on the basis of which the phone line of the petitioner was tapped. Further, the Anurag Singh, alias, Rahul, edited and tampered certain conversations of the Petitioner.
3. It is stated that the Petitioner was the complainant in the instant case. It is stated that the Petitioner is satisfied with the investigation of Delhi Police, and therefore withdraws all averments, contentions and allegations made against Respondent no. 7."
45. All the aforesaid paragraphs were verified by the petitioner as true to his knowledge.
46. The said affidavit of the petitioner filed in February, 2011, completely knocks the bottom out of the petitioner's case, inasmuch as by the said affidavit the petitioner seeks to withdraw all averments, allegations and contentions against the respondent no. 7. The main case of the petitioner is based on his allegations against respondent no.7. The burden of the song in the writ petition is that the respondent no. 7, acting out of a political vendetta and exercising its influence on Delhi Police administration caused interception of the telephone lines of various political leaders of the opposition including that of the petitioner. The subsequent affidavit also acknowledges that the petitioner is satisfied with the investigation by the Delhi Police in connection with the forgery alleged to have been committed, namely the fabrication of orders on the basis of which the phone lines of the petitioner were tapped. Petitioner also makes a statement that the said Anurag Singh edited and tampered some of the conversations of the petitioner. It is very interesting to note that when the petitioner filed a detailed affidavit in support of his writ petition, pursuant to the order of this Court, the petitioner admitted that he relied on the information from the same Anurag Singh, and the main annexures to the petition, namely A and B were received by him from the same Anurag Singh. Paragraphs 2 (2), 2 (3), 2 (4) and 2 (6) are based on the information received from Mr. Anurag Singh. But he did not say all these in his affidavit when he filed the writ petition on 21st January 2006.
47. It may be noted that when the writ petitioner filed the petition on 21st January, 2006, he was aware of an investigation that was going on by the Delhi Police in connection of the forgery of annexures A and B. Even then he filed the petition with those annexures and without a proper affidavit.
48. It therefore appears that the petitioner has been shifting his stand to suit his convenience. In 2006, the gravamen of the petitioner's grievances was against the respondent no. 7, and the basis of his petition was the information that he derived from the said Anurag Singh. On the basis of such a petition, he invoked the jurisdiction of this Court and an interim order was issued in his favour, which is still continuing.
49. Now when the matter has come up for contested hearing, he suddenly withdraws his allegations against the respondent no. 7 and feels satisfied with the investigation of the Police in connection with the aforesaid case of forgery and also states that the same Anurag Singh "edited and tampered certain conversations of the petitioner".
50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.
51. Apart from the aforesaid, in the writ petition which was filed on 21st January, 2006, there is no mention of the fact that the petitioner gave a statement under section 161, Code of Criminal Procedure in connection with the investigation arising out of FIR lodged on 30th December, 2005. From the records of the case it appears the petitioner gave 161 statement on 13th January, 2006. In the writ petition there is a complete suppression of the aforesaid fact. A statement under Section 161 is certainly a material fact in a police investigation in connection with an FIR. The investigation is to find out the genuineness of those very documents on the basis of which the writ petition was moved. In that factual context, total suppression in the writ petition of the fact that the petitioner gave a 161 statement in that investigation is, in our judgment, suppression of a very material fact.
52. It is, therefore, clear that writ petition is frivolous and is speculative in character. This Court is of the opinion that the so called legal questions on tapping of telephone cannot be gone into on the basis of a petition which is so weak in its foundation.
53. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case.
54. In Dalglish v. Jarvie {2 Mac. & G. 231,238}, the Court, speaking through Lord Langdale and Rolfe B., laid down:
"It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward."
55. In Castelli v. Cook {1849 (7) Hare, 89,94}, Vice Chancellor Wigram, formulated the same principles as follows:
"A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as has broken faith with the Court, the injunction must go."
56. In the case of Republic of Peru v. Dreyfus Brothers & Company {55 L.T. 802,803}, Justice Kay reminded us of the same position by holding:
"...If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made."
57. In one of the most celebrated cases upholding this principle, in the Court of Appeal in R. v. Kensington Income Tax Commissioner {1917 (1) K.B. 486} Lord Justice Scrutton formulated as under:
"and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- facts, now law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement."
58. It is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings and especially when it contains a prayer for injunction. A prayer for injunction, which is an equitable remedy, must be governed by principles of `uberrima fide'.
59. The aforesaid requirement of coming to Court with clean hands has been repeatedly reiterated by this Court in a large number of cases. Some of which may be noted, they are: Hari Narain v. Badri Das - AIR 1963 SC 1558, Welcome Hotel and others v. State of A.P. and others - (1983) 4 SCC 575, G. Narayanaswamy Reddy (Dead) by LRs. and another v. Government of Karnatka and another - JT 1991(3) SC 12: (1991) 3 SCC 261, S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and others - JT 1993 (6) SC 331: (1994) 1 SCC 1, A.V. Papayya Sastry and others v. Government of A.P. and others - JT 2007 (4) SC 186: (2007) 4 SCC 221, Prestige Lights Limited v. SBI - JT 2007(10) SC 218: (2007) 8 SCC 449, Sunil Poddar and others v. Union Bank of India - JT 2008(1) SC 308: (2008) 2 SCC 326, K.D.Sharma v. SAIL and others - JT 2008 (8) SC 57: (2008) 12 SCC 481, G. Jayashree and others v. Bhagwandas S. Patel and others - JT 2009(2) SC 71 : (2009) 3 SCC 141, Dalip Singh v. State of U.P. and others - JT 2009 (15) SC 201: (2010) 2 SCC 114.
60. In the last noted case of Dalip Singh (supra), this Court has given this concept a new dimension which has a far reaching effect. We, therefore, repeat those principles here again:
"For many centuries Indian society cherished two basic values of life i.e. "satya"(truth) and "ahimsa (non-violence), Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
61. However, this Court is constrained to observe that those principles are honoured more in breach than in their observance.
62. Following these principles, this Court has no hesitation in holding that the instant writ petition is an attempt by the petitioner to mislead the Court on the basis of frivolous allegations and by suppression of material facts as pointed out and discussed above.
63. In view of such incorrect presentation of facts, this court had issued notice and also subsequently passed the injunction order which is still continuing.
64. This Court, therefore, dismisses the writ petition and vacates the interim order and is not called upon to decide the merits, if any, of the petitioner's case. No case of tapping of telephone has been made out against the statutory authorities in view of the criminal case which is going on and especially in view of the petitioner's stand that he is satisfied with the investigation in that case. The petitioner has withdrawn its case against the respondent No.7. In that view of the matter this Court makes it clear that the petitioner, if so advised, may proceed against the service provider, respondent No.8, before the appropriate forum, in accordance with law. This Court, however, makes it clear that it does not make any observation on the merits of the case in the event the petitioner initiates any proceeding against respondent No.8.
65. This court wants to make one thing clear i.e. perfunctory and slipshod affidavits which are not consistent either with Order XIX Rule 3 of the CPC or with Order XI Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court.
66. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik (supra), Barium Chemicals Ltd. (supra) and A.K.K. Nambiar (supra) and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said rules.
67. These rules, reiterated by this Court time and again, are aimed at protecting the Court against frivolous litigation must not be diluted or ignored. However, in practice they are frequently flouted by the litigants and often ignored by the Registry of this Court. The instant petition is an illustration of the same. If the rules for affirming affidavit according to Supreme Court were followed, it would have been difficult for the petitioner to file this petition and so much of judicial time would have been saved. This case is not isolated instance. There are innumerable cases which have been filed with affidavits affirmed in a slipshod manner.
68. This Court, therefore, directs that the Registry must henceforth strictly scrutinize all the affidavits, all petitions and applications and will reject or note as defective all those which are not consistent with the mandate of Order XIX Rule 3 of the CPC and Order XI Rules 5 and 13 of the Supreme Court Rules.
69. The writ petition is, therefore, dismissed subject to the aforesaid liberty. All interim orders are vacated.
70. Parties are left to bear their own costs.

CBI and others vs Keshub Mahindra and others

SUPREME COURT OF INDIA
Hon'ble The Chief Justice, Hon'ble Mr. Justice Altamas Kabir, Hon'ble Mr. Justice R.V. Raveendran, Hon'ble Mr. Justice B. Sudershan Reddy and Hon'ble Mr. Justice Aftab Alam
C.B.I. & others Petitioner(s)
versus
Keshub Mahindra etc. etc. Respondent(s)
Case No: Curative Petitioner (Crl.) Nos. 39-42 of 2010 In Criminal Appeal Nos. 1672-1675 of 1996
Date of Decision: 11 May 2011


ORDER
S.H. Kapadia, CJI :- These curative petitions are filed by Central Bureau of Investigation for recalling the judgment and order dated 13.9.1996 of this Court in Keshub Mahindra vs. State of M.P. (Criminal Appeal Nos. 1672-1675 of 1996 decided on 13.9.1996 reported in 1996 (6) SCC 129), on the following premises :
(i) When this Court, by the said judgment dated 13.9.1996 quashed the charges framed against accused Nos. 2 to 5, 7 to 9 and 12 under Sections 304 (Part II), 324, 326 and 429 IPC and directed the trial court to frame charges under Section 304A IPC, this Court had before it adequate material to make out prima facie, an offence chargeable under Section 304 (Part II) IPC. Therefore, this Court committed a serious error in ignoring such material and quashing the charge under Section 304 (Part II) IPC.
(ii) The evidence placed in support of the charge under Section 304A IPC during the trial of the said accused before the learned Chief Judicial Magistrate, Bhopal showed prima facie that the said accused had committed offences punishable under Section 304 (Part II) IPC. But for the said judgment of this Court dated 13.9.1996, the learned Magistrate would have, by taking note of the said material, committed the case to the Court of Sessions under Section 323 of the Code of Criminal Procedure (for short `the Code'). However, in view of categorical finding recorded by this Court, in its binding judgment dated 13.9.1996 that there was no material for a charge under Section 304 (Part II) IPC and consequential quashing of the said charge, with a direction to frame the charge under Section 304A IPC, the learned Magistrate was barred from exercising his judicial power under Section 323 of the Code, even though the Code vested the jurisdiction in him to alter the charge or commit the case to the Court of Sessions as the case may be, on the basis of evidence that came on record during the trial.
(iii) The judgment dated 13.9.1996 therefore resulted in perpetuation of irremediable injustice necessitating filing of the curative petitions seeking recall of the judgment dated 13.9.1996.
2. On the night of December 02, 1984 there was a massive escape of lethal gas from the MIC storage tank at Bhopal plant of the Union Carbide (I) Ltd. (UCIL) into the atmosphere causing the death of 5,295 people leaving 5,68,292 people suffering from different kinds of injuries ranging from permanent total disablement to less serious injuries. On the day following the incident, the SHO, Hanuman Ganj Police Station, suo moto, registered a Crime Case No. 1104 of 1984 under Section 304A IPC. On December 06, 1984 investigation was handed over to the CBI, which investigation stood completed, resulting in filing of charge sheets by the CBI in the Court of C.J.M., Bhopal on December 01, 1987. Since the charge sheets inter alia alleged commission of offence under Sections 304, 324, 326, 429 read with Section 35 of IPC, the case was committed by the C.J.M. to the Sessions Court as Sessions Case No. 237 of 1992 (See : Order dated 30th April, 1992). On 8th April, 1993, the 9th Additional Sessions Judge, Bhopal passed an order framing charges against the accused Nos. 5 to 9 under Sections 304 (Part II), 324, 326 and 429 of IPC and against accused Nos. 2, 3, 4 and 12 under the very same Sections but with the aid of Section 35 of IPC. It may be mentioned that at the time of framing of charge, the Court had before it, accused Nos. 2 to 9 and accused No. 12 (UCIL) whereas accused No. 1 (Warren Anderson) was absconding and the Court was also unable to bring before it the other two companies, UCC and Union Carbide Eastern Inc., accused Nos. 10 and 11.
3. The accused after having unsuccessfully challenged the order framing charge by the Court of Sessions before the Madhya Pradesh High Court, brought the matter to this Court in four separate appeals in which the leading case was Appeal (Cri.) No. 1672 of 1996 filed at the instance of accused No. 2 which stood ultimately disposed of by the judgment of the Division Bench of this Court dated September 13, 1996 in the case of Keshub Mahindra (supra). This Court held that on the material produced by the prosecution before the Trial Court at the stage of framing of charges, no charges could have been framed against the accused under Section 304 (Part II) or under Sections 324, 326, 429 with or without the aid of Section 35 IPC and it accordingly quashed the charges framed by the Sessions Court and directed that on the material led by the prosecution the charge under Section 304A IPC could be made out against accused Nos. 5, 6, 7, 8 and 9 and under the same sections with the aid of Section 35 against accused Nos. 2, 3, 4 and 12. Applications seeking leave to file a review petition being Criminal Misc. Petition Nos. 1713-16 of 1997 in a proposed review petition stood dismissed on March 10, 1997. These applications were filed jointly by Bhopal Gas Peedith Sangharsh Sahyog Samiti (BGPSSS), Bhopal Gas Peedith Mahila Udyog Sangathan (BGPMUS) and Bhopal Group for Information and Action (BGIA). The CBI/State of M.P. did not question the said 1996 judgment or filed any review petition under Article 137 of the Constitution and instead proceeded for the next 14 years to prosecute the accused under Sections 304A, 336, 337, 338 read with Section 35 IPC. It is only on 26th April, 2010, after the defence evidence stood concluded and after conclusion of the oral arguments by the Senior Public Prosecutor, that, a petition was filed jointly by BGPSSS and BGPMUS under Section 216 Cr.P.C. for enhancement of the charge to Section 304 (Part II) IPC. This application was not supported by CBI. The said application was rejected by the C.J.M. on the same day. However, this order of the C.J.M. was also never challenged under Section 397/399 or under Section 482 Cr.P.C. Ultimately on June 7, 2010 Criminal Case No. 1104 of 1984 stood disposed of by the C.J.M. vide his judgment convicting accused Nos. 2 to 5, 7 to 9 and 12 under Sections 304A, 336, 337, 338 read with Section 35 IPC and sentencing them to two years' imprisonment. On June 29, 2010 Criminal Appeal No. 369 of 2010 was filed by State of M.P. before the Court of Sessions with a prayer for enhancement of sentences under the existing charges. On the same day the State of M.P. also filed Criminal Revision Application No. 330 of 2010 before the Court of Sessions under Section 397 Cr.P.C., challenging the alleged failure of the C.J.M. to enhance the charges to Section 304 (Part II) in exercise of his jurisdiction under Section 216 Cr.P.C., and to commit the trial of the case to Sessions under Section 323 Cr.P.C. and inter alia praying for a direction to enhance charges and commit. On July 29, 2010 Criminal Appeal No. 487 of 2010 was filed by the CBI before the Court of Sessions for enhancement of sentences under the existing charges. On 23rd August, 2010, CBI filed the criminal revision only after the present curative petitions were filed before this Court on August 2, 2010. All the appeals and revisions remain pending before the Court of Sessions.
4. It is clear to us that in the criminal revisions filed by the CBI and the State of M.P. the legal position is correctly stated. But the curative petitions are based on a plea that is wrong and fallacious. As noted above, one of the main planks of the curative petitions is that even though in course of trial before the Magistrate, additional evidences have come on record that fully warrant the framing of the higher charge (s) and the trial of the accused on those higher charges, as long as the 1996 judgment stands the Sessions Court would feel helpless in framing any higher charges against the accused in the same way as the trial court observed that in view of the judgment of the Supreme Court no court had the power to try the accused for an offence higher than the one under Section 304A of IPC. The assumption is wrong and without any basis. It stems from a complete misapprehension in regard to the binding nature of the 1996 judgment. No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code and the 1996 judgment never intended to do so. In the 1996 judgment, this Court was at pains to make it absolutely clear that its findings were based on materials gathered in investigation and brought before the Court till that stage. At every place in the judgment where the Court records the finding or makes an observation in regard to the appropriate charge against the accused, it qualifies the finding or the observation by saying "on the materials produced by the prosecution for framing charge". "At this stage", is a kind of a constant refrain in that judgment. The 1996 judgment was rendered at the stage of sections 209/228/240 of the Code and we are completely unable to see how the judgment can be read to say that it removed from the Code sections 323, 216, 386, 397, 399, 401 etc. or denuded a competent court of the powers under those provisions. In our view, on the basis of the material on record, it is wrong to assume that the 1996 judgment is a fetter against the proper exercise of powers by a court of competent jurisdiction under the relevant provisions of the Code. If according to the curative petitioner, the learned Magistrate failed to appreciate the correct legal position and misread the decision dated 13.9.1996 as tying his hands from exercising the power under Section 323 or under Section 216 of the Code, it can certainly be corrected by the appellate/revisional court. In fact, the revision petitions though belatedly filed by the State of M.P. and the CBI (which are still pending) have asserted this position in the grounds of revision. Moreover, no ground falling within the parameters of Rupa Ashok Hurra vs. Ashok Hurra 2002 (4) SCC 388 is made out in the curative petitions. Also, no satisfactory explanation is given to file such curative petitions after about 14 years from 1996 judgment of the Supreme Court. The curative petitions are therefore dismissed.
5. Nothing stated above shall be construed as expression of any view or opinion on the merits of the matters pending before the learned Sessions Judge, Bhopal.

SUPREME COURT OF INDIA
Hon'ble The Chief Justice, Hon'ble Mr. Justice K.S. Panicker Radhakrishnan and Hon'ble Mr. Justice Swatanter Kumar
Centre for Environment & Food Security Petitioner
versus
Union of India & others Respondent(s)
Case No: Writ Petition (Civil) No. 645 of 2007
Date of Decision: 12 May 2011
ORDER
Swatanter Kumar, J:- This Public Interest Litigation has been filed by the petitioner before this Court for issuance of appropriate directions to the respondents to ensure proper implementation of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (for short the 'Act') and the schemes framed thereunder. The Act was enacted to ensure enhancement of livelihood security of households in the rural areas of the country by providing at least hundred days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith and incidental thereto. The authorities appointed under the Act are responsible to ensure proper utilisation of the funds released by Union of India for implementation of the schemes framed under the provisions of the Act. The Central Government issued guidelines, viz., NREGA Operational Guidelines in 2008 for proper implementation. Petitioner has prayed before us that proper investigation is required to be conducted into cases of non-compliance with the provisions of the Act, schemes framed thereunder and the guidelines issued by the Central Government to prevent diversion of funds specifically allocated for implementation of the schemes framed under the Act.
The petition has been pending before this Court for considerable time and certain orders/directions have been issued by the Court from time to time. The Central Government as well as various State Governments had filed certain compliance affidavits with respect to the orders/directions issued by this Court. However, it was felt by this Court that all was not well with the functioning of the various State Governments as well as the Centre for achieving the objectives of the Act.
Observing discrepancies in the implementation of the provisions of the Act, this Court, on 16th December, 2010, passed a detailed order. In the said order, it was noticed that it was in the interest of justice and in larger public interest that this Court should issue appropriate directions to ensure proper and equitable functioning of the Act and the schemes framed thereunder. After noticing in some detail various acts and omissions resulting into disobedience of the statutory mandate and patent lacuna in implementation of the schemes, like disbursement of money to the unemployed, proper registration and utilisation of the funds by the concerned authorities working under the provisions of the Act, special reference was made to the failure on the part of the State of Orissa in implementing the scheme and various provisions of the Act. The concerned authorities under the State Governments and even in the Central Government have failed to discharge their statutory duties under the provisions of the Act on one hand and on the other they have also violated the orders/directions of this Court. This compelled the Court to pass the following directions on 16th December, 2010:
"Thus, we are compelled to issue the following directions for strict compliance by the concerned authorities:
1. The compliance report shall be filed in the form of affidavit which shall be sworn by the Additional Secretary, in-charge for compliance of the provisions of the Act in the Ministry of Rural Development, Government of India, New Delhi and the Chief Secretary, State of Orissa within three weeks from today.
2. The instances and figures referred to in the survey report submitted by the petitioner shall be specifically dealt with in that affidavit.
3. The affidavit should be filed positively within the stipulated time directed in this order and further we call upon both the Union of India and the State Government to show cause as to why there should not be a direction to the CBI to investigate this matter in accordance with law.
We also issue the direction that affidavits to be filed by the respective authorities shall, inter alia, but specifically answer the following points:
(a) What is the extent of funds released by the Union of India to the State of Orissa for implementation of the schemes under the provisions of the Act for each of the year between 2006 to 2010?
(b) To what extent and for what projects, the released funds have been utilized? Whether State of Orissa has given to the Central Government the requisite certificate of utilization?
(c) Findings to be recorded whether any amount earmarked for any of the schemes under NREGA has been diverted to any other Head of Account including revenue account by State of Orissa.
(d) How many applicants, of how many households, have been actually employed and have been paid allowances under the provisions of the Act?
(e) The figures in terms of the above directions shall be provided for the period from 2006 to 2010.
(f) Whether any social audit of the projects under the Gram Sabha has been conducted in terms of Section 17(2)? If yes, its detailed findings for the above mentioned period.
(g) Whether all the authorities/officers/officials, from the higher levels in the Central Government or State Governments to the grass-root levels at District, intermediary and Panchayats, to ensure effective implementation of the schemes under the Act have been appointed? If no, reasons therefor.
(h) Whether the Union of India or the State Government, in consultation with the Comptroller and Auditor General of India or otherwise, have conducted any general audit of accounts of the schemes at any level in terms of Section 24 of the Act? If the answer is in the affirmative, then details thereof, particularly, the objections, if any, raised by the Auditors; if the answer is in the negative, then reasons therefor.
(i) Whether the Central Government has issued any directions concerning utilization of funds under NREGA while disbursing the amounts to State of Orissa? Whether these have been complied with by State of Orissa?
(j) Whether the Central Government has received any complaints about working of the schemes, utilization of funds, providing of employment and payment of allowances under the provisions of the Act? If so, what action has been taken in terms of Section 27(2) of the Act? It should be stated with complete statistics and data.
(k) Whether the Union of India or the State of Orissa have, till date, found even a single official/functionary guilty of contravention in terms of Section 25 of the Act and whether any complaint has been filed in any Court of competent jurisdiction? If so, the result thereof.
(l) The contents and the background of the complaints received and referred in 'Annexure-R1' to the affidavit filed by the Union of India should be stated precisely. Why the enquiry reports as referred to in 'Annexure-R1' to the Affidavit of the Union of India of July 2008, no final reports have been prepared and submitted before this Court till date. Further, it shall also be stated as to why the findings of the interim reports referred in the said affidavit have not been placed before this Court. A complete summary thereof shall be annexed to the Affidavit."
In furtherance to the above directions, the Union of India and the State of Orissa have filed their affidavits in those terms. From the affidavits filed, it was clear that there was temporary diversion of funds, no proper audit has been conducted in terms of Section 24 of the Act and utilization of funds was improper.
Not satisfied with the replies of the Central Government as well as the State of Orissa, this Court on 14th March, 2011 noticed that there are particularly two aspects to be taken care of at this stage; one is concerned with the corruption in the implementation of NREGA Scheme and the other is concerned with the implementation of the Operational Guidelines issued by the Central Government under Section 27 of the Act. In the case of State of Orissa, it was brought to the notice of the Court that huge amount has been misappropriated and, consequently, the beneficiaries of the NREGA Scheme are deprived of their dues.
Learned Additional Solicitor General, appearing for the Union of India, informed this Court that the Central Government is considering the possibility of handing over the matter to Central Bureau of Investigation (for short the 'CBI') for investigation in cases of misappropriation and prayed for time for seeking instructions from the concerned Government in this behalf. This Court further directed the Government of Orissa to implement the Guidelines issued by the Central Government with regard to muster rolls, maintenance of job cards/applications and transfers to the accounts of the beneficiaries.
It must be noticed at this stage that the Comptroller and Auditor General of India (for short the 'CAG') had prepared certain reports in regard to implementation of the schemes framed under the Act. Similar report was prepared by the National Institute for Rural Development (NIRD) after conducting social audits in certain villages of Orissa on request of the Government of Orissa. Both these reports have pointed out the irregularities in implementation of the provisions of the Act and the schemes framed thereunder. These reports have even been accepted by the State Government and it had directed all the Collectors and District Programme Controllers (DPCs) to take necessary follow-up action. They had been instructed to submit exhaustive compliance/action-taken report in relation to the observations made by the CAG and NIRD in their respective reports and to conduct complete verification of all the allegations contained therein.
In the affidavit filed on behalf of the State of Orissa, it was admitted that certain financial and other irregularities in implementation of the schemes have been noticed. Not only this, it was also stated in the affidavits that certain departmental actions were also initiated against the erring officers/officials. This Court in its order dated 16th December, 2010, had specifically noticed that the interim compliance reports filed by the Fact-Finding Committee constituted by the State Government have not been taken to their logical ends and no action has been taken as per law. All these facts compelled this Court to ask the Central Government to hand-over the investigation into all these incidences of irregularities and discrepancies where, ex-facie, criminal offences are alleged to have been committed.
Learned Additional Solicitor General had placed on record a copy of the letter dated 4th April, 2011 written by the Director, Mahatma Gandhi NREGA to the Director CBI requiring the latter to investigate the matter. Paragraphs 2 and 3 of the said letter read as under:
"2. A copy of the aforesaid Writ Petition is enclosed, in which the petitioner has mainly emphasized on the alleged irregularities in the implementation of MGNREGS in the State of Orissa. Annexure 'A' to the Writ petition is the report of the petitioner titled "Rural Job Scam Survey Report on Implementation of NREGA in Orissa". In the wake of directive from the Hon'ble Supreme Court, it has been decided to refer the Orissa case to the Central Bureau of Investigation. A copy of the counter affidavit along with extracts of relevant Annexures filed by the State of Orissa before the Hon'ble Supreme Court is enclosed.
3. you are requested to kindly have the matter investigated and cause to initiate criminal proceedings against the delinquent officials under the relevant laws. This may please be accorded priority. This is issued with the approval of the Hon'ble Minister (Rural Development)."
After issuance of this letter, the Panchayti Raj Department of Government of Orissa, issued a Notification dated 23rd April, 2011 in regard to the orders of this Court. The Government of Orissa, referring to the report of a survey conducted by the petitioner herein on performance of NREGA in 100 villages of six districts in Orissa during the year 2006-2007, accorded its consent to CBI to probe into alleged large-scale irregularities and misappropriations of funds under the NREGA scheme in the State of Orrisa in exercise of its powers conferred under Section 6 of the Delhi Special Police Establishment Act, 1946. Vide letter of the same date, i.e. 23rd April, 2011, the Special Director, CBI, wrote to Department of Personnel and Training of Government of India stating that the matter proposed to be entrusted to them involves field investigation in a large number of villages in remote parts of the State of Orissa and that the CBI is severely handicapped in respect of manpower and logistic resources. It was requested that their requirement for man-power and logistic resources may be brought to the notice of this Court for seeking appropriate direction in that regard.
During the course of hearing, Mr. Prashant Bhushan, learned counsel appearing for the petitioner made some averments that this investigation should be conducted all over the State and reliance should not only be placed upon the reports of CAG and NIRD but the investigating agency should also take into consideration the survey report prepared by the petitioner (Annexure 'A' to the writ petition) to make it a comprehensive and fruitful investigation. However, Mr. Venu Gopal, learned senior counsel appearing for the State of Orissa, contended that the CBI should not be called upon to conduct a fishing enquiry for the entire State in relation to implementation of the provisions of the Act and schemes framed thereunder as it would seriously hamper progress of the same and even demoralize the persons working under the scheme. It was suggested by him that such investigation should be confined to six districts of State or Orissa mentioned in the survey-report of the petitioner (Annexure 'A' to the writ petition) and should be limited for the purposes of examining whether there has been commission of any criminal offence by the officers/officials functioning under the provisions of the Act.
Learned Additional Solicitor General, appearing for the Union of India, argued that the CBI should be permitted to conduct a free and fair investigation all over the State and it should examine and take into consideration all the three documents, i.e. the survey report prepared by the petitioner (Annexure 'A' to the writ petition), report of the CAG dated 31st March, 2009 and the report submitted by the NIRD.
Wide powers of investigation are vested in the CBI under the provisions of the Delhi Special Police Establishment Act, 1946. Another provision which has a significant bearing on the matters before us is Section 27(2) of the Act. This provision specifically states that the Central Government may, on receipt of any complaint regarding the issue of improper utilization of funds granted under this Act in respect of any scheme, if prima facie satisfied that there is a case, cause an investigation into the complaint by any agency designated by it. Thus, the Central Government has full power to refer the matter of CBI for investigation in regard to the complaints received by it. The State Government has enquired into complaints received and even engaged NIRD to conduct social-audits and submit its report to the State Government. The Central Government is even vested with the power, in such cases, to stop release of the funds to the scheme and institute appropriate remedial measures for its proper implementation. Thus, it will be useful for the concerned authorities in the Central Government to ponder over the entire matter and propose such directions or measures which the State Government should take in order to prevent recurrence of the events that have taken place in number of States and particularly in the State of Orissa.
Having heard the learned counsel appearing for the parties at some length and keeping in view the background of this case, particularly the factual matrix referred by us above, we consider it appropriate to issue the following directions :
1. The CBI will conduct free and fair investigation in regard to the implementation of provisions of the Act and the schemes framed thereunder without any impediment;
2. This investigation shall be restricted to 100 villages in six districts of Orissa as spelt out in the Notification issued by the State of Orissa dated 23rd April, 2011;
3. The investigating agency shall refer to and take into consideration all the three documents, i.e. the survey report prepared by the petitioner (Annexure 'A' to the writ petition), report of the CAG dated 31st March, 2009 and the report submitted by NIRD to the State of Orissa.
4. The CBI shall conduct a complete and comprehensive investigation in the matter. Whereupon, it shall file its report in regard to commission of criminal offences in implementation of the schemes or otherwise before the court of competent jurisdiction for appropriate action. The CBI shall also place a copy thereof on the record of this Court.
5. Other irregularities or illegalities, apart from the commission of criminal offences, which come to the notice of the CBI during the course of this investigation, shall be submitted to the Chief Secretary, State of Orissa in the form of separate report for appropriate action in accordance with law.
6. The investigation should be concluded as expeditiously as possible. However, we would expect the CBI to file its first report within a period of six months from the date of pronouncement of this order.
7. The State Government of Orissa, all the State Departments and concerned authorities of the Central and State Governments are hereby directed to fully cooperate with the CBI so as to facilitate the expeditious completion of the investigation. The Ministry of Rural Development, Government of India is also directed to provide technical assistance to CBI during the course of investigation in regard to all the matters falling within the scope of that investigation. Union of India shall also furnish the guidelines, directions and measures which are required to be taken by the State of Orissa.
8. Besides issuing the above directions, we hereby also direct that notice to be issued to the States of Uttar Pradesh and Madhya Pradesh to respond to the reports filed by the petitioner along with its rejoinder affidavit dated 21st February, 2011 in regard to implementation of provisions/schemes under the Act in those States.
9. Keeping in view the fact that there has been persistent default on the part of a number of States in fully implementing the provisions of the Act, we hereby direct all the State Governments to file affidavits stating whether they have accepted and are duly implementing the Operational Guidelines issued by the Government of India, within six weeks from today. In the event, these Guidelines have not been accepted or are not being implemented, the affidavit shall specifically state reasons for such non-acceptance and/or non-implementation of the afore-stated directions/guidelines.
10. We also direct the Central Government to consider the entire matter objectively within the framework of the provisions of the statute and place on record of this Court, before the next date of hearing, the directions or measures which it proposes to issue to all the States to prevent recurrence of what has happened in the State of Orissa.
With the above orders, we direct that all concerned shall strictly adhere to and comply with the directions contained in this order. We make it clear that in the event of default this Court would be compelled to take appropriate action against the defaulting officers/officials/authorities.
Stand over for eight weeks.