JUDGMENT

Mool Chand Garg, J.

1. This order shall dispose of the aforesaid petition filed under Section 397/401 of the Code of Criminal Procedure challenging the correctness legality and propriety of the order dated 16.11.2007 passed by the learned Special Judge CBI Delhi dismissing the application filed by the petitioner (one of the accused) with a prayer to remand the Sessions case No. 5/2006 titled "CBI through Chanda Rani Vs. K.K. Jajodia and Ors.), arising out of a Complainant under Section 3/5 of the Official Secrets Act (hereinafter referred to as O.S. Act) read with Section 120B IPC, to the Chief Metropolitan Magistrate for complying with the provisions of proviso to Sub Section (2) of Section 202 and Section 208 of the Cr.P.C before committing the case to the sessions.

2. Briefly stating the facts giving rise to the filing of the present petition are:

i) Complaint dated 15.04.1987 was filed by one Mr. Navin Sikand, Regional Manager of a Courier Company viz. M/s. Trident Express, Trident Travels & Tours (P) Ltd., on or about 17.04.1987 to the Central Beurue of Investigation (CBI) which resulted in the registeration of an FIR/Criminal Case being RC 4(S)/87-SIU-1 by its Special Investigating Cell under Section 120B IPC read with Sections 3 and 5 of the OS Act, against the Partners/Proprietors/Directors of M/s. William Jacks (Pvt.) Ltd. In the said complaint inter alia it was alleged;-

(a) That a letter addressed to one Mr. Marc De Saint Denis, M/s. Coprint, Paris was received by the aforementioned Courier Company for dispatch on 04.04.1987 as per Airway Bill No. 236 dated 04.04.1987. Another letter addressed to Mr. J.W.H. Weavers, Netherlands was also received on 13.04.1987 vide Airway Bill No. 893 dated 13.04.1987 by the same Courier Company for dispatch. Both these covers were picked up by the courier boys of the aforesaid Courier Company from M/s. William Jacks and the particulars of the sender on Airway Bills were given as one Mr. K.C. Das, Kiran Bhawan, Barakhamba Lane,New Delhi and Mr. Kashyap, Kiran Building, Barakhamba Road, New Delhi respectively and the charges were paid in cash.

(b) That on suspicion, the covers were opened and inside the covers addressed to the person in Paris was a Xerox copy of "User Evaluation Trial Report on R.A.T.A.C.S. battlefield Surveillance Radar BFSR Phase-I" pertaining to the Army, Ministry of Defence and the other cover, addressed to the person in Netherlands, contained draft letters in 13 pages containing details of some radars Fly Catchers for detection and tracking of low level enemy aircrafts.

ii) In view of that after the FIR was registered, the CBI investigated the matter and thereafter, Shri R.S. Dwivedi, Deputy Superintendent of Police, CBI filed a complaint on 07.02.1989 in the Court of the Chief Metropolitan Magistrate (CMM), Delhi who took the cognizance of offences under Section 120B IPC read with Sections 3 and 5 of the OS Act and Sections 3 and 5 of the OS Act against the accused persons including the petitioner and transferred the case to Addl. Chief Metropolitan Magistrate (ACMM). Subsequently vide order dated 19.09.1989, the ACMM to where the case was transferred by CMM committed the case to the Court of Sessions since the offence under Section 3 of the OS Act was exclusively triable by the Court of Sessions.

iii) That vide order dated 22.07.1995 Shri Dinesh Dayal, Learned Special Judge, Delhi discharged the accused persons as prior sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) to prosecute two of the accused persons viz. Dr. W.N. Nerurkar and Brig. R.S. Deol was not obtained.

iv) That after a year Shri S.S. Sandhu, Inspector, CBI filed a Second Complaint dated 17.12.1996 in the Court of the CMM based on similar allegations after the Sanction was given under Section 197 Cr.P.C. The CMM again took cognizance of the offences and issued process. Subsequent to the appearance of the accused persons, the case was again committed to the Court