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IN THE HIGH COURT OF DELHI
VIKRAMAJIT SEN,RAJIV SAHAI ENDLAW
N.G.SHETH - Appellant
Versus
C.B.I. - Respondent
W.P.(CRL) 312/2007 and CRL.M.A.2670/2007
W.P.(CRL) 451/2008
Decided On : 11-07-2008
OFFICIAL SECRETS ACT, 1923 - SECTION 13 - INTERPRETATION - JURISDICTION OF COURTS TO TRY OFFENCES - SPECIAL EMPOWERMENT OF MAGISTRATES - SCOPE AND EFFECT - TRANSFER OF CASES FROM CHIEF METROPOLITAN MAGISTRATE TO SESSIONS COURT - VALIDITY - RIGHT TO APPEAL - LOSS OF REMEDY OF REVISION - MAINTAINABILITY OF PETITIONS.
Fact of the Case:
Petitions challenging the administrative decision of the Delhi High Court transferring cases pending under the Official Secrets Act, 1923 (OS Act) from the Court of the Chief Metropolitan Magistrate (CMM) to the Court of Sessions. The Petitioners contended that the CMM had been specially empowered to try offences under the OS Act by virtue of a Notification dated 6.3.1998, which was subsequently rescinded by a Notification dated 21.6.2006. They argued that the transfer of cases was illegal and that they had lost the right to appeal to the Court of Sessions and the remedy of revision to the High Court.
Finding of the Court:
The Court held that Section 13 of the OS Act, read in conjunction with the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC), empowers the Central Government to specially empower a Magistrate of the First Class to try offences under the OS Act. However, in the absence of such special empowerment, the Court of Sessions would have jurisdiction to try such offences. The Court further held that the impugned Notification, which rescinded the earlier Notification empowering the CMM to try offences under the OS Act, was valid and that the transfer of cases from the Court of the CMM to the Court of Sessions was justified. The Court also held that the Petitioners did not have a vested right to appeal to the Court of Sessions or to seek revision to the High Court, as these rights are statutory and can be circumscribed by the conditions in the grant.
Issues: 1. Whether the CMM had jurisdiction to try offences under the OS Act in the absence of special empowerment by the Central Government? 2. Whether the impugned Notification rescinding the earlier Notification empowering the CMM to try offences under the OS Act was valid? 3. Whether the transfer of cases from the Court of the CMM to the Court of Sessions was justified? 4. Whether the Petitioners had a vested right to appeal to the Court of Sessions or to seek revision to the High Court?
Ratio Decidendi: 1. Section 13 of the OS Act, read in conjunction with the relevant provisions of the CrPC, empowers the Central Government to specially empower a Magistrate of the First Class to try offences under the OS Act. However, in the absence of such special empowerment, the Court of Sessions would have jurisdiction to try such offences. 2. The impugned Notification, which rescinded the earlier Notification empowering the CMM to try offences under the OS Act, was valid. 3. The transfer of cases from the Court of the CMM to the Court of Sessions was justified. 4. The Petitioners did not have a vested right to appeal to the Court of Sessions or to seek revision to the High Court, as these rights are statutory and can be circumscribed by the conditions in the grant.
Final Decision: The Petitions were dismissed.
VIKRAMAJIT SEN, J.
1. The legal nodus which has arisen in these writ petitions concerns the interpretation of Section 13 of the Official Secrets Act, 1923 (OS Act for short), read in conjunction with sundry sections of the Criminal Procedure Code, 1973 (CrPC hereafter). Vide Gazette Notification dated 6.3.1998 the Central Government, in exercise of powers conferred upon it by Section 13(1) of the OS Act, empowered the Chief Metropolitan Magistrate (CMM), Delhi to try offences punishable under this statute. In terms of Notification dated 21.6.2006 of the Ministry of Home Affairs the Central Government rescinded the earlier Notification dated 6.3.1998 thereby withdrawing the special empowerment of the CMM under the OS Act in this regard. Predicated on the decision of the Delhi High Court on the Administrative side the Registrar General, Delhi High Court addressed a letter No.28088/G-3/OS Act/Gaz/06 dated 7.12.2006 to the District and Sessions Judge, Delhi directing that all the cases pending under the OS Act be withdrawn from the Court of the CMM and be assigned to the Special/Sessions Judges. It is this administrative decision of the Delhi High Court that has been challenged by the Petitioners.
.2. In WP(Crl.) 312/2007 a Complaint was lodged on 30.8.1983 under Section (5)(1)(a) of the OS Act and its cognizance was taken on 25.10.1983. Thereafter, on 23.8.2002 the Petitioner had orally exercised the option made available to him by virtue of Section 13 and has declined to be tried by the Court of Sessions. Consequent upon the passing of the impugned Notification dated 21.6.2006 counsel for the Petitioner submits that the CMM has committed the case to the Court of Sessions. We have called for the Trial Court Records and find that this submission is not correct. On the contrary the application filed by the Central Bureau of Investigation for committal of the case to the Court of Sessions in view of the Notification dated 21.6.2006 of the Government of India is still pending. Emphasis has been laid on the fact that the Petitioners had, on 20.9.2002, exercised the option in writing to be tried by the CMM, Delhi. Mr. Siddhartha Luthra, learned Senior Counsel underscores the further position that the Trial has commenced under Chapter XIX Part B of the CrPC and the case is at the stage of recording of pre-charge evidence.
3. In Writ Petition (Crl.) 451/2008 the Petitioner was facing trial in the Court of Chief Metropolitan Magistrate, Delhi for offences under Sections 3 and 5 of the OS Act read with Section 120-B of the Indian Penal Code (IPC). By virtue of Notification dated 6.3.1998 the Central Government had empowered the CMM to try offences punishable under the OS Act. The CMM took cognizance on 15.6.2005. As we have already mentioned, in terms of Notification dated 21.6.2006 of the Ministry of Home Affairs, the Central Government has rescinded the earlier Notification dated 6.3.1998 empowering the CMM under the OS Act. By way of the implementation of an administrative decision of this Court, in terms of directions dated 7.12.2006 of the Registrar General, High Court of Delhi, the subject complaint case was transferred by the Sessions Judge, Delhi from the Court of the CMM to Court of Shri Vinod Goel, Special Judge. It is this transfer which has been assailed by the Petitioner.
.4. Our principal concern centres upon the interpretation of Section 13 of the OS Act which reads thus:- 13. Restriction on trial of offences.--(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 offence under this Act. (2) If any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed, claims to be tried by the Court of Sessions, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that court, notwithstandin
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