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IN THE HIGH COURT OF DELHI
R.K. GAUBA, J.
Ashok Chawla & Others - Petitioner
Versus
C.B.I. - Respondent
Crl.M.C. No. 4120 of 2016
Decided On : 08-08-2019
OFFICIAL SECRETS ACT - PROCEDURE - CRIMINAL CASES - CLARIFICATION - COGNIZANCE - COMPLAINT - INVESTIGATION REPORT - SECTION 210 CR.P.C. - APPLICABILITY - SECTION 13 OF THE OFFICIAL SECRETS ACT - SECTION 4(2) CR.P.C. - SECTION 173 CR.P.C. - SECTION 190 CR.P.C. - SECTION 200 CR.P.C. - SECTION 202 CR.P.C. - SECTION 209 CR.P.C. - SECTION 323 CR.P.C.
Fact of the Case:
The petitioners were accused of committing offences under sections 3 and 5 of the Official Secrets Act, 1923 read with section 120-B IPC. The complaint was filed by an officer duly empowered by the Central Government in terms of Section 13 of Officials Secret Act, 1923. At that stage no report under Section 173 of the Code of Criminal Procedure (Cr.P.C.) had been prepared or submitted in the court in relation to the FIR No. RC 6 (S)/1996 which had been registered by Central Bureau of Investigation qua the crimes respecting which the petitioners face the prosecution till the date cognizance was taken i.e. 20.09.2001. The petitioners contended that in view of the inhibition of Section 210 Cr.P.C., the investigation being then pending, no cognizance on the criminal complaint could have been taken, such order being vitiated rendering the subsequent proceedings non-est. The petitioners also contended that since a criminal complaint had been presented before the CMM on 21.11.2000, it was incumbent upon her to first hold an inquiry in accordance with the procedure envisaged in sections 200 and 202 Cr.P.C. before cognizance could be lawfully taken on said complaint. It was an added argument of the petitioners that since the case was eventually committed to the court of sessions, taking of cognizance on the complaint without the inquiry under sections 200 and 202 Cr.P.C. renders the order of committal to the court of sessions bad particularly in absence of any pre-charge evidence having been adduced in the inquiry leading to the committal order.
Finding of the Court:
The court held that the provision contained in Section 210 Cr. PC has no applicability to a complaint case instituted by a public servant under Section 13 of the Official Secrets Act. The court also held that there is no obligation on the part of the magistrate to record the statements of witnesses in the pre-summoning inquiry on a complaint presented by a public servant in discharge of his official duties. Further, there is no obligation on the court of magistrate, in the inquiry held after summoning, to record the statements of witnesses prior to committal of the case to the court of session. The court also held that the investigating agency bears in mind that no purpose is served by withholding – that too indefinitely – the report of investigation under Section 173 Cr. PC. Once such investigation into a cognizable offence under the Official Secrets Act has been completed, the case at the end of the investigating police must culminate in a report of investigation being prepared and submitted, though it not expected to be treated as a “charge-sheet” on which cognizance is to be taken under Section 190 Cr. PC.
Issues: 1. Whether the provision contained in Section 210 Cr. PC has any applicability to a complaint case instituted by a public servant under Section 13 of the Official Secrets Act? 2. Whether there is any obligation on the part of the magistrate to record the statements of witnesses in the pre-summoning inquiry on a complaint presented by a public servant in discharge of his official duties? 3. Whether there is any obligation on the court of magistrate, in the inquiry held after summoning, to record the statements of witnesses prior to committal of the case to the court of session? 4. Whether the investigating agency bears in mind that no purpose is served by withholding – that too indefinitely – the report of investigation under Section 173 Cr. PC?
Ratio Decidendi: 1. The provision contained in Section 210 Cr. PC has no applicability to a complaint case instituted by a public servant under Section 13 of the Official Secrets Act. 2. There is no obligation on the part of the magistrate to record the statements of witnesses in the pre-summoning inquiry on a complaint presented by a public servant in discharge of his official duties. 3. There is no obligation on the court of magistrate, in the inquiry held after summoning, to record the statements of witnesses prior to committal of the case to the court of session. 4. The investigating agency bears in mind that no purpose is served by withholding – that too indefinitely – the report of investigation under Section 173 Cr. PC.
Final Decision: The petition is dismissed with above observations.
JUDGMENT :
1. Some confusion prevails concerning the procedure governing the criminal cases involving accusations of offences under the Official Secrets Act, 1923 (“the Official Secrets Act”), certain notifications issued by the central government, some observations in an earlier judgment of a single bench of this court, and a seemingly unreasonable posture adopted by Central Bureau of Investigation (CBI) in the case from which the present petition arises, having possibly added to the causes. The petition at hand presents the opportunity for such confusion to be dispelled and clarity in the approach expected to be adopted brought about such that cases of this nature do not suffer unnecessary hiccups or delay.
2. The background facts may be noted at the outset albeit restricted to the extent necessary. In the wake of searches statedly carried out in a premises located in Defence Colony, New Delhi on 31.08.1995 and 01.09.1995, by the officials of income tax department, recovery of certain classified documents, described as secret and confidential, of Ministry of Defence in the Govt. of India was reported, this resulting in first information report (FIR) being registered by CBI on 30.08.1996 vide RC No.6(S)/1996, the investigation having been taken up into the acts of commission and omission prima facie constituting offences punishable under sections 3 and 5 of the Official Secrets Act and section 120-B of the Indian Penal Code, 1860 (IPC). On 21.11.2000, Inspector Ram Chander Garvan of CBI presented a criminal complaint under section 13 of the Official Secrets Act in the court of Chief Metropolitan Magistrate (CMM) Delhi, on the strength, inter alia, of authorization by the Central Government vide order No.11/17017/18/2000-ISUS (D-11), dated 12.09.2000, seeking prosecution of the petitioners for having committed offences punishable under sections 120-B IPC read with section 3(1)(c) of the Official Secrets Act and for substantive offence under section 3(1)(c) of the Official Secrets Act. The complaint referred to, and relied upon, evidence that had been gathered by the CBI during investigation into the above mentioned FIR, documents relating to which were presented with the complaint, the list of witnesses also having been prepared and presented in such light.
3. The CMM, Delhi passed the following order on the said complaint:-
“21.11.00
Pr. Sh. Rajpal Singh, Spl.P.P. for CBI with Insp. Ram Chander Garvan I.O.
Complaint under section 13 of Official Secret Act 1923 presented.
It be checked and registered.
Documents also filed along with the complaint. Heard. Perused. I take cognizance of the offence under section 3/5 Official Secret Act R/w section 120B IPC. Accused persons be summoned for 2/3/2001.
Sd/-
C.M.M. 21.11.00”
4. On 08.03.2001, the petitioners appeared before the CMM, Delhi with counsel taking preliminary objection that the complaint had been presented by an officer who was not authorized in law to present the same. This objection was repelled by the CMM who noted that the complainant (public servant) had been duly authorized by the Central Government, reference being made to the FIR that had been registered by CBI on 30.08.1996, directions being given to the concerned clerk (Ahlmad) to trace the FIR and place the same on record, the matter having been adjourned because the concerned Public Prosecutor for CBI was not available, the application for bail requiring consideration. On 04.05.2001, the ahlmad of the concerned court gave a report placing on record copy of the FIR that had been received earlier, also stating that no report (of investigation) under section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) had been filed. On 20.09.2001, the petitioners were admitted to bail, the CMM, Delhi opting to enforce the trial procedure applicable to warrant cases instituted otherwise than on police report (generally known as “complaint cases”) requiring pre-charge evidence to be adduced – presumably in terms of section 244 Cr.P.C
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