State Of Maharashtra vs Budhikota Subbarao

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1993 Supreme(SC) 232

SUPREME COURT OF INDIA
S.R. Pandian and R.M. Sahai, JJ.
Criminal Appeal No. 275 of 1993
Decided On: 16.03.1993
State of Maharashtra Appellants
Vs.
Dr. Budhikota Subbarao Respondent
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: Altaf Ahmed, Additional Solicitor General, B.R. Handa, Senior Adv., Manjula Rao, S.M. Jadhav, AS. Bhasme and A.M. Khanwilkar, Advs.
For Respondents/Defendant: Party in person
For Intervenor: V.M. Tarkunde, Senior Adv., A.M. Khanwilkar and AK. Panda, Advs.

Headnote:Criminal Procedure Code, 1973 - Section 197 r/w - Official Secrets Act, 1923 - Sections 3, 5, 6 & 9 - Atomic Energy Act 1962 - Sections 18(2), 19(b), 24(2)(d) - Prosecution of Public Servants - Accused an ex-naval Captain who had voluntarily retired from service in 1987 arrested on 30 May 1988 for violating the provisions of O.S. Act and A.E. Act- A complaint filed by the" State, before the Metropolitan Magistrate after obtained permission u/s. 3(1)(c) r/w sections 9, 6(2)(a), 6(2)(b) of O.S. Act and sections 24(1)(d) r/w 18(2), 24(2)(d) r/w 19(b) of the A.E. Act - Trial Court framed charges under the O.S. Act and A.E. Act Whether cognizance of the offences could have been taken against the accused without obtaining sanction of the Government u/s. 197 of the Code? (No)
       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.

1. Strictures of sharp practice, suppression of facts, obtaining orders by playing fraud upon the court against State by Mr. Justice Saldanha of the Bombay High Court, while deciding Criminal Miscellaneous Petition filed by the opposite party, accused ofleaking official secrets and violating provisions of the Atomic Energy Act, 1962 and awarding Rs. 25,000 as compensation, for consultancy loss, suffered by him, due to ex-parte order obtained by the State against order of the trial Judge permitting the opposite party to go abroad, compelled the State to file this appeal and assail the order not only for legal infirmities but factual inaccuracies.

2. Reasons to quote the learned Judge which, compelled the con-secience of court to pass the impugned order were, the unfortunate proceedings that bristled (s) with mala fides. Basis for these inferences was, the conclusion by the learned Judge, that the State, deliberately, procured the interim order by another learned Judge by filing a separate writ petition, when it knew that the main petition for quashing of the proceedings was pending before the division bench (Puranik & Saldanha, JJ.). The learned Judge felt, strongly, against the public prosecutor as she being aware of the proceedings before the Division Bench failed in her duty of apprising the learned Judge of correct facts.

3. Was this so? Did the State procure the order by concealing facts? Was the public prosecutor guilty of violating professional ethics or her duty as respondent officer of the court? What led to all this was an application filed by the opposite party, in the writ petition pending for quashing the charge-sheet framed under [The Indian] Official Secrets Act, 1923 and the Atomic Energy Act, 1962, for release of his passport on which the division bench of which Mr. Justice Saldanha was a member, passed the order on 13.2.91 that it may be presented before the trial Judge. On the very next day the Additional Sessions Judge, (hereinafter referred as ASJ) after hearing the parties, directed that the passport and identity card of the opposite party be returned. He, further, permitted the opposite party to leave India and travel abroad as per the itinerary during the period from 17.2.91 to 22.2.91 on executing a personal bond of Rs. 50,000. The State was, obviously, disturbed by this order as serious charges had been levelled against the opposite party who had been arrested, earlier, just when he was about to leave the country and board the plane, for leakage of official secrets and whose bail had, even, been cancelled by this court, appeared to be in danger of leaving the country again. Since the order was passed on 14.2.91 and the opposite party was to fly on 17.2.91 and 16.2.91 was Staturday, the State challenged the correctness of the order passed by the ASJ by way of a writ petition under Article 227 of the Constitution read with Section 482 of Criminal Procedure Code and the learned Judge, who under the rules was entitled to hear such a petition, passed an ex-parte order on 15.2.91 staying that part of the order which permitted the opposite party to leave the country and directed the application to be listed for further orders on 18.2.91. On coming to know of this order, in the evening, the opposite party approached the Division Bench where the main petition was pending on 16th February, which after making an observation that the public prosecutor ought to have brought it to the notice of the learned single Judge that the main matter was pending before the Division Bench and the trial Judge had passed the order in pursuance of the direction issued by the Division Bench, directed that the matter, being urgent,it should be placed before the same learned single Judge. Consequently parties appeared before the learned Judge on 16th February who, after hearing, confirmed the interim order passed, a day earlier.

4. With confirmation of interim order the proceedings which had commenced on the a

Click Here to Read the rest of this document