Cognizance under the Official Secrets Act requires approval from the appropriate government, and failure to obtain such approval renders the charges without authority of law.

JUDGMENT

Mr. Jasgurpreet Singh Puri, J. (Oral)

This is the third petition filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the petitioner in case bearing FIR No.12 dated 25.02.2022, under Sections 3 & 4 of the Official Secrets Act, 1923 and Section 120-B IPC, registered at Police Station Sadar Pathankot, District Pathankot.

2. It has been submitted by learned counsel for the petitioner that this is the third successive bail petition filed by the petitioner and the earlier two petitions were dismissed as withdrawn on 08.09.2022 vide Annexure P- 7 and 17.04.2023 vide Annexure P-9. He further submitted that the petitioner is in custody from 12.05.2022 which is almost 1 year 7 months and 26 days. He also submitted that the petitioner was earlier involved in one case under the NDPS Act but he has since been acquitted in that case on 29.07.2021 and the police has planted the present case upon the petitioner in view of the fact that earlier he was involved in one case under the NDPS Act. He further submitted that it is a case where an FIR was registered against one Navjot Singh on the ground that he was passing on secret information to Pakistan while he was posted in Pathankot by using his mobile number and he along with one unknown person was also giving information with regard to the movement of Indian Army to the Pakistan Agencies which affects the security and integrity of India. Thereafter, when the police raided the house of the aforesaid Navjot Singh, his wife had provided two mobile numbers to the police but in the meanwhile the aforesaid Navjot Singh committed suicide. On the basis of the aforesaid mobile numbers, the police thereafter nominated one Sandeep and during the investigation it was found that the petitioner was using the mobile number linked with the Aadhar Card which belongs to the aforesaid Sandeep and because of this reason the petitioner was nominated in the present case. Thereafter, the police cooked up a story with regard to various disclosure statements which according to the police were made by the petitioner. He also submitted that it was only for the purpose of false implication since the main accused, namely, Navjot Singh had committed suicide and in order to carry on with the procedure of the FIR the police nominated the petitioner wrongfully and with the result that he had to face incarceration for 1 year 7 months and 26 days.

3. Learned counsel for the petitioner further submitted that the present FIR has been lodged under Sections 3 & 4 of the Official Secrets Act, 1923 read with Section 120-B IPC and also submitted that the FIR has been lodged by the State and the cognizance has been taken by the trial Judge on the basis of the report filed by the State Police whereas as per Section 13 of the Official Secrets Act, it has been so stated vide Sub Section 3 that no Court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the appropriate Government or some officer empowered by the appropriate Government in this behalf. Sub Section 5 of the Act defines the expression 'appropriate Government' to mean in relation to any offences under Section 5 not connected with a prohibited place or with a foreign power, the State Government and in relation to any other offence, the Central Government. He also submitted that so far as the present FIR is concerned, the same was lodged under Sections 3 & 4 of the Official Secrets Act and therefore, the present FIR would fall under Clause (b) of Sub Section 5 of Section 13 of the Official Secrets Act and therefore, the appropriate Government would be the Central Government. He further submitted that the Central Government has till date not accorded any approval nor has delegated any officer in this regard and the entire exercise has been done by the State Government and therefore, even the cognizance which has been taken by the Court was without any authority of law and t