(1) By present petition, the petitioners assailed order dated 10th July, 2007 of learned CMM allowing an application under Section 173 (5) (a) read with Section 207 of Cr. P.C. moved by CBI with a prayer that official secret documents recovered from the accused (enlisted in the application) relating to Ministry of Defence and Defence Forces containing classified information be not supplied to the accused since the disclosure of the information contained in the document would be prejudicial to the security, safety and interest of the Nation.

(2) The accused was facing trial under Official Secrets Act and the case was at initial stage of supply of documents when this application was made and allowed by the learned CMM on the ground that the documents contained sensitive information, disclosure of which could adversely affect the security of Nation and copies of these documents should not be handed over to the applicant. The order of learned CMM is assailed on the ground that the learned trial court wrongly considered that the subject matter of documents was not required to be proved and only the facts that documents contained sensitive information and the documents were unauthorisedly possessed by the accused, was required to be proved by evidence. It was submitted that trial court mis-interpreted the right of the accused under Section 207 Cr. P.C. to get the entire material collected during investigation and did not appreciate the law laid down in Supdt. and Rememberancer of Legal Affairs Vs. Satyen Bhowmick case (AIR 1981 SC 917). It is submitted that petitioner would not be in a position to defend himself in view of serious allegations levelled against him for the violation of Official Secrets Act and order of the trial court should be set aside and directions should be given to furnish the copies of documents seized and recovered from the accused. Reliance is placed by the accused persons on Section 207 (v) of Cr. P.C. and it is argued that any document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173 of Cr. P.C. has to be supplied to the accused.

(3) It is not the case of the accused person that the documents form a part of court record but has not been supplied to the accused person. Section 173 (5) of Cr. P.C. deals with the final report to be filed by the police before the Court and Section 173 (5) Cr. P.C. provides that when such a report is forwarded, the police, along with report has to forward all relevant documents or extract thereof on which prosecution propose to rely, other than those already sent to Magistrate during investigation, and the statements recorded under Section 161 Cr. P.C. of all persons whom prosecution proposes to examine. Thus, what is to be handed over to the accused are those documents or extract thereof which are forwarded by the police to the Magistrate during investigation or along with the report under Section 173 Cr. P.C. If the same has not been forwarded to the Magistrate by the police, the accused does not have a right to get a copy of those documents under Section 207 Cr. P.C. and that is why a Magistrate under Section 207 (v) Cr. P.C. has been directed to furnish to the accused free of cost a copy of such documents or relevant extract thereof forwarded to him with the police report under Section 173 (5) Cr. P.C.

(4) Under Section 3 of Official Secrets Act mere possession of Secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy, or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India or security of State has been made offence. In the present case copies of certain official notings and documents were recovered from the accused which related to classified information regarding defence of the Nation. Th