Back
SUPREME COURT OF INDIA
S. Ratnavel Pandian & R.M. Sahai, JJ.
The State of Maharashtra - Appellant
versus
Dr. Budhikota Subharao - Respondent
Criminal Appeal No. 276-1993
Decided on 16.3.1993
held: So far public servants are concerned the cognizance or arty offence, by any court is barred by section 197 of the Code unless sanction is obtained from the appropriate authority if the offence, alleged to have been committed, was in discharge of the official duty. (para 5)
The mandatory character of the protection afforded to a public servant is brought out by the expression, "no court shall take cognizance of such offence except with the previous sanction". Use of the words, "no" and "shall" make it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. (Para 5)
Held further: The High Court and the Trial Judge, both, found that it was clear that the documents which were seized from possession of the accused and were subject matters of indictment were obtained by him when he was in service prior to his retirement in 1987. Even the reference to the documents in the charge because of which the Government was of opinion that the accused had violated provisions of O.S. Act are mentioned to have been procured by the accused during course of his employment. In view of these averments, in the charge itself, it is very difficult to say that the offence for which the accused had been charge-sheeted were not committed when he was in service. (para 7)
Therefore, the act or omission which furnished foundation for indicting the. accused either under O.S. Act or A.E. Act were related to the period when he was in service. (para 7)
What remains to be examined is if the documents which were found in possession of the accused and were collected or obtained by him when he was in service were procured by him in discharge of duty. (Para 8)
As is clear from the charge itself the accused was selected in course of his employment in the Navy to study the feasibility of nuclear power, propelled submarine vessel along with, a team of officers and was attached with B.A.R.C. as second officer in command. He joined the, project in 1976 and was associated with the Centre for nearly 10 years. The accused while working with B.A.R.C. not only obtained Ph.D. but was even awarded gold medal for his achievements in computer technology and control engineering and a special Herbert Lou Memorial Award for his inventions in improving the existing, fighting devices of the Navy. (para 9)
Most of the documents which can be said to be sensitive which were recovered from the accused were admittedly either the book written by him or the paper read by him as is clear from the Punchnama and the Statement of Witnesses who were produced on behalf of the prosecution to prove the same. Even the thesis written by the accused on which he was awarded Ph. D. by the Bhabha Institute of Technology was seized by the prosecution. The purpose of stating all this is to demonstrate that these papers were written and the books published when the accused was attached with B.A.R.C. as a Second Officer-in Command and, therefore, the material or documents which were found by him cannot be said to have been collected or procured by him by going out of way and beyond the discharge of his duties as an officer in the Naval Department.
Therefore, the High Court and the Trial Court appear to have, rightly, inferred that whatever material came in possession of the accused was as a result of discharge of his duty as a Naval Officer. If this be so then even the second and the most important requirement of acting in discharge of official duty was satisfied. Therefore, without expressing any opinion on merits we arc of the opinion that it was necessary for the prosecution to have obtained sanction for prosecuting the accused. (Para 9)
JUDGMENT
R.M. Sahai, J. - The principal question of law, and, an important one, that arises for consideration in Appeal No. 276 of 1993 [arising out of S.L.P. (Crl.) No. 986 of 1992] which shall reflect on Appeal No. 277 of 1993 [arising out of S.L.P. (Crl.) No. 987 of 1992], as well, filed by the State of Maharashtra against the judgment and order of the Bombay High Court, affirming the order of the Trial Judge discharging the accused, is if the absence of sanction, by the appropriate authority, under section 197 Criminal Procedure Code (in short the Code) for prosecuting a retired public servant, vitiates the proceedings.
2. Although facts are brief and simple too, but the High Court, unfortunately, instead of confining itself to the legality of discharge, either for Jack of the sanction under section 197 of the Code or for the improper authorisation under the Official Secrets Act 1923 (in brief the O.S. Act) and Atomic Energy Act 1962 (referred to as A.E. Act) the two statues for violation of which the accused was charged, was led away to record findings as if the accused was deliberately subjected to undue harassment by the State aided by the alleged unreasonable attitude of the Public Prosecutor. So much so that the learned Judge allowed an application of the accused, in- the revision filed by the State against his discharge, and set aside the order of Additional Sessions Judge (in brief ASJ) framing charges against him is it was vitiated by fraud, merely because the State did not file any counter-offidavit and insisted that the argument being same as were advanced in the revision it was not necessary to file any reply, even though the learned Judge was aware that the accused had earlier approached the High Court against the order rejecting his application that no charge was liable to be framed against him without any success. Not only that the learned Judge did not spare, even, this Court, for canceling bail of the accused at earlier stage. Needless to say that the first was unnecessary, the second illegal and is subject matter of appeal No. 277 of 1993 arising out of S.L.P. (Crl.) No. 987 of 1992 and the third improper.
3. Since the accused was discharged by the Trial Judge, mainly, due to technical defects and the decision was rendered as a preliminary issue on direction of the High Court, suffice it to say that the accused, an ex-Naval Captain who achieved notable success in the field of computer science and software during the period he was attached with Bhabha Atomic Research Centre, (in short B.A.R.C. had voluntarily opted out of service in 1987, was arrested on 30th May, 1988 just, when he was boil to board a plane for New York. His residence was searched on the next day. From the documents recovered, from search of the hand bag on 30th and residence on 31st and his interrogation, it appeared that he was guilty of violating provisions of O.S. Act and A.E. Act, therefore, a complaint was filed, against him after obtaining permission, under section 3(1)(c), 3(1)(c) read with section 9, 6(2)(a) and 6(2)(b) of the O.S. Act and 24(1)(d) read with 18(2) and 24(2)(d) read with section 19(b) of the A.E. Act before the Metropolitan Magistrate who being prima facie satisfied of the offences and their gravity committed the accused to stand trial before the Court of Sessions. Effort was made by the accused to assail the framing of charge, as according to him, on facts, no offence under either of the Statutes was made out. And offence if any for which he could be charge-sheeted could be under section 5 only. The Trial Judge turned down the pica bi order dated 24/27th February, 1989 and fixed date for framing the charge. A revision, against this order, was dismissed by the High Court, on 6th June, 1989. It was challenged by way of Special Leave Petition in this Court. But it was permitted to be withdrawn. The accused however invoked inherent jurisdiction of the High Court seeking review of the order dated 6th June, 1989. Although
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
