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1984 Supreme(Del) 234
High Court Of Delhi
FRANK DALTON LARKINS - Appellant
Versus
STATE (DELHI ADMN) - Respondent
CRIMINAL REVISION 78 of 1984
Decided On : 09/12/1984
B.R.Handa, Harjinder Singh, Kamal Inder, NAVIN MALHOTRA, Neeraj Mehra, R.L.Mohta
Headnote:
OFFICIAL SECRETS ACT, 1923 - Ss. 3, 5, 6, 9 - Cognizance of offences - Complaint - Examination of complainant and witnesses - Magistrate not bound to examine complainant and witnesses before issuing process - Proviso to S. 202 (2) of the Code of Criminal Procedure, 1973 - Not mandatory - Magistrate's discretion to postpone issue of process or not - Magistrate can take cognizance and issue process without holding inquiry or directing investigation - Proviso to S. 202 (2) - Controls sub-sec. (2) and not sub-sec. (1) - Does not fetter Magistrate's discretion under sub-sec. (1) - Magistrate can straightway issue process after complying with procedure laid down in S. 200 - S. 208 of the Code - Copies of statements recorded under S. 200 or S. 202 to be supplied to accused - Does not mean Magistrate must record statements of complainant and all witnesses under aforesaid sections in cases exclusively triable by Court of Session - Purpose of S. 208 served by furnishing copies of statements recorded under S. 161 or S. 164 - No bar to such statements being made available to accused for preparing defence and effectively cross-examining witnesses - Copies of documents produced before Magistrate on which prosecution proposes to rely also to be supplied to accused under S. 208 (iii) - Non-examination of complainant and witnesses under S. 200 or S. 202 not likely to materially prejudice accused in preparation of defence.
Fact of the Case:
Four persons were committed by the Additional Chief Metropolitan Magistrate, New Delhi, to stand trial on charges under Ss. 3, 5, 6 and 9 of the Official Secrets Act, 1923 read with S. 120-B of the IPC on the ground that the offences are exclusively triable by the Court of Session. The petitioners challenged the legality and validity of the cognizance of the offences taken by the learned Additional Chief Metropolitan Magistrate as also the order of commitment, mentioned above, on various grounds.
Finding of the Court:
The Court held that the Magistrate was not bound to examine the complainant and witnesses before issuing process and that the proviso to S. 202 (2) of the Code of Criminal Procedure, 1973 was not mandatory. The Court further held that the Magistrate had the discretion to postpone the issue of process or not and that he could take cognizance and issue process without holding an inquiry or directing an investigation. The Court also held that the proviso to S. 202 (2) controlled sub-sec. (2) and not sub-sec. (1) and that it did not fetter the Magistrate's discretion under sub-sec. (1). The Court further held that the Magistrate could straightway issue process after complying with the procedure laid down in S. 200 and that S. 208 of the Code required copies of statements recorded under S. 200 or S. 202 to be supplied to the accused, but that this did not mean that the Magistrate must record statements of the complainant and all witnesses under the aforesaid sections in cases exclusively triable by the Court of Session. The Court also held that the purpose of S. 208 was served by furnishing copies of statements recorded under S. 161 or S. 164 and that there was no bar to such statements being made available to the accused for preparing defence and effectively cross-examining witnesses. The Court further held that copies of documents produced before the Magistrate on which the prosecution proposed to rely also had to be supplied to the accused under S. 208 (iii) and that the non-examination of the complainant and witnesses under S. 200 or S. 202 was not likely to materially prejudice the accused in the preparation of their defence.
Issues: Whether the Magistrate was bound to examine the complainant and witnesses before issuing process.
Ratio Decidendi: The proviso to S. 202 (2) of the Code of Criminal Procedure, 1973 is not mandatory and the Magistrate has the discretion to postpone the issue of process or not. The Magistrate can take cognizance and issue process without holding an inquiry or directing an investigation. The proviso to S. 202 (2) controls sub-sec. (2) and not sub-sec. (1) and does not fetter the Magistrate's discretion under sub-sec. (1). The Magistrate can straightway issue process after complying with the procedure laid down in S. 200. S. 208 of the Code requires copies of statements recorded under S. 200 or S. 202 to be supplied to the accused, but this does not mean that the Magistrate must record statements of the complainant and all witnesses under the aforesaid sections in cases exclusively triable by the Court of Session. The purpose of S. 208 is served by furnishing copies of statements recorded under S. 161 or S. 164 and there is no bar to such statements being made available to the accused for preparing defence and effectively cross-examining witnesses. Copies of documents produced before the Magistrate on which the prosecution proposes to rely also have to be supplied to the accused under S. 208 (iii). The non-examination of the complainant and witnesses under S. 200 or S. 202 is not likely to materially prejudice the accused in the preparation of their defence.
Final Decision: The revision petitions were dismissed.
( 2 ) ON the basis of a complaint lodged by Air Vice-Marshal S. Raghavandran, Air Headquarters, New Delhi, on 9th November 1983 alleging that Air Vice-Marshal (Retd.) K. H. Larkins had committed an offence of espionage during the period 21st March 1983 to 5th April 1983, a case under Ss. 3, 5 and 9 of the Act was registered at Police Station Tughlak Road on 10th November 1983. The investigation of the case was conducted by Shri R. S. Khurana. Inspector, Special Staff, under the supervision of the Deputy Commissioner of Police, Special Branch-II, New Delhi. On completion of investigation, a police report under S. 173 of the Cri PC (for short the Code) which was accompanied by a complaint signed by the Deputy Commissioner of Police, Special Branch, Delhi, was filed in court and cognizance of the offence was taken by the learned Additional Chief Metropolitan Magistrate who made the following order :
"this challan under Ss. 3, 5, 6 and 8 of the o. S. Act and S. 120-B, IPC has been presented today. Heard. Perused the record. I take cognizance of the offence. The case be registered. The accused are stated to be in judicial custody up to 6th February 1984. Put up on 6th February 1984 for appearance of the accused and for supplying copies to them. "
( 3 ) CONSEQUENTLY, as stated above, the accused were committed to the Court of Session for trial vide order dt. 16th April 1984.
( 4 ) THE learned counsel for the petitioners have assailed both the aforesaid orders on the following grounds : (1) The case is not exclusively triable by the Court of Session in view of the provisions contained in sub-secs. (1) and (2) of S. 13 of the Act. 2. The court could not take cognizance of the offences under the Act except on complaint made by the appropriate Govt. or under the authority from the appropriate Govt. as envisaged in sub-sec. (3) of S. 13. So, the filing of the police report and the cognizance taken on its basis is bad in law. 3. Cognizance ought to have been taken on the complaint, if any, made by the Deputy Commissioner of Police in accordance with the provisions contained in S. 200 of the Code, but that has not been done. 4. The court ought to have examined all the prosecution witnesses if the court had found the case to be exclusively triable by the Court of Session, as contemplated by the proviso to sub-sec. (2) of S. 202 of the Code but commitment was made without complying with the said provision of law and as such it is liable to be quashed. GROUND NO. 1
( 5 ) SUB-SECTIONS (1) and (2) of S. 13 of the Act on which reliance is placed read as under :
" (1) No Court other than that of a Magistrate of the first class specially empowered in this behalf by the appropriate Government, which is inferior to that of a District or Presidency Magistrate shall try any offenc
