Delhi District Court
State vs . Anil Kumar Dubey on 3 August, 2007
IN THE COURT OF SMT. PRATIBHA RANI,
ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
DELHI
SC No.9/07
State Vs. Anil Kumar Dubey
ORDER ON CHARGE
I have heard Sh. S.C. Sharma, Addl. PP for the State
and Sh. Maninder Singh, ld. Counsel for the accused on the point
of charge and also carefully gone through the record.
2. On behalf of prosecution it has been submitted that
from the material collected by the prosecution that a prima facie
case under Section 120-B IPC as well as under Section 3/9 of
Official Secrets Act is clearly made out against the accused,
hence charge may be framed.
3. On behalf of accused Anil Kumar Dubey, ld. Defence
counsel Sh. Maninder Singh has contended that the material on
record does not even suggest that house No.1385 near Holi
Chowk, Mahipal Pur is the address of the accused, no
surveillance was put on him by the Special Staff after receipt of
secret information regarding the alleged involvement of this
accused in espionage activity. It has also been contended that no
public witness has been joined, the statement of witnesses even
if considered at this stage does not make out any case of
espionage against the accused. It has also been contended that it
1
has come on record that when the Pakistani national Mohd
Farooq was on visiting terms at the house of accused Anil
Kumar Dubey then where was the need for him to collect the
documents from outside that house. Ld. Defence counsel has
pointed out various infirmities in the investigation conducted by
the prosecution, non joining of public witnesses and also
contended that since there is only one accused in this case, no
charge for conspiracy can be framed against him. Ld. Defence
counsel has also pointed out the improbabilities in collecting the
documents from J&K when accused was posted in Delhi. It has
also been contended that it is a case of false implication of the
accused and Pakistani national has already been deported to
Pakistan as he was enjoying diplomatic immunity. Ld. Defence
counsel has prayed for discharge of accused Anil Kumar Dubey.
He has also relied upon D.K. Basu vs State of West Bengal and
Ashok K. Johri vs State of UP, (1997) 1 SCC 416; Ashish
Batham vs State of Madhya Pradesh, 2002 (3) JCC 1883; and
Balbir Singh vs State of Haryana, 1987 Crl.L.J. 853 in support
of his contentions.
4. I have considered the rival contentions and gone
through the case law relied upon by ld. Defence counsel. After
carefully going through the judgments relied upon by ld.
Defence counsel, I could not find even a single judgment coming
2
to the rescue of the accused in seeking a discharge order.
5. As per the case of prosecution SI Dharmender Kumar
of special Staff was having a information regarding one Anil
Kumar Dubey posted with AGI Directorate, Delhi being
indulged in espionage activity and collecting information
regarding the movement of deployment of Indian army and
transmitting sensitive and secret information to the enemy
country. It is also the case of prosecution that passing of such an
information was likely to affect the sovereignty, integrity and
security of India.
6. It is the further case of prosecution that on 20.10.2006
on the basis of secret information accused Anil Kumar Dubey
was apprehended from near house No.1385, Holi Chowk,
Mahipal Pur at about 7.00 pm while he was handed over a black
racsin bag to a person whose name was subsequently revealed as
Mohd Farooq, a Pakistani National and an employee of Pakistan
High Commission. It is further the case of prosecution that on
search of that racsin bag sensitive documents were recovered and
the information contained in the recovered documents, prima
facie, related to defence matter of the State, disclosure of which
to enemy country could be prejudicial to the security of our
nation and could be useful to the enemy country. While Mohd.
Farooq, the employee of Pakistan High Commission was handed
3
over to SI Desh Raj and HC Naresh Kumar to be handed over to
Pakistan High Commission officials through MEA, Govt. of
India, New Delhi at PS Chanakya Puri, New Delhi, accused Anil
Kumar Dubey was arrested, interrogated and charge sheeted for
the offences punishable under Section 3/9 Official Secrets Act
read with section 468/471/474/120-B IPC. Opinion has also
been sought on the documents recovered from Anil Kumar
Dubey and as per the report received vide letter 10.11.2006 from
Sh. R.S. Khurb, the documents were classified as restricted and
its possession with the individual was unauthorized and illegal
and further that the documents specially Q-10 had major security
implication if it falls into the hands of enemy.
7. The case is at the stage of charge and only prima facie
view is to be found whether on the basis of material collected by
the prosecution, a case under Sec. 3/9 of Official Secrets Act r/w
Sec.468/471/474/120-B IPC is made out against the accused or
not. In the case of Superintendent and Remembrancer of Legal
Affairs, West Bengal Vs. Anil Kumar reported as 1979 SCC
(Crl.), 1038, the Apex Court has observed as under:-
"The standard of test, proof and judgment which is to
be applied finally before finding the accused guilty or
otherwise is not exactly to be applied at the stage of
Sec.227 or 228 of the Code of Criminal
Procedure,1973. At this stage, even a very strong
suspicion founded upon materials before the
Magistrate which leads him to form a presumptive
opinion as to the existence of the factual
4
ingredients constituting the offence alleged may
justify the framing of charge......."
In another case Kanti Bhandra Shah and Anr. Vs
The State of West Bengal, JT 2000 (1) SC 134 the Apex Court
has held as under :-
"If the trial court decides to frame a charge there is
no legal requirement that he should pass an order
specifying the reasons as to why he opts to do so.
Framing of charge itself is prima facie order that the
trial Judge has formed the opinion, upon considering
the police report and other documents and after
hearing both sides, that there is ground for
presuming that the accused has committed the
offence concerned. If he forms the opinion that
there is ground for presuming that the accused had
committed the offence which he is competent to try.
He is only required to frame a charge in writing
against the accused."
In this case it was further held as under :-
"If there is no legal requirement that the trial court
should write an order showing the reasons for
framing a charge, why should the already burdened
trial courts be further burdened with such an extra
work. The time has reached to adopt all possible
measures to expedite the court procedures and to
chalk out measures to avert all road blocks causing
avoidable delays. If a magistrate is to write detailed
orders at different stages because the counsel would
address arguments at all stages, the snail paced
progress of proceedings in trial courts would further
be slowed down."
8. So far as offence of conspiracy is concerned, merely
because Mohd Farooq has not been sent to face trial alongwith
this accused for the reason that he enjoyed diplomatic immunity
is no ground to discharge the accused for the offence of
5
conspiracy especially when it has come on record that accused
Anil kumar Dubey allegedly entered into a conspiracy with
Mohd Farooq to supply classified and secret information and
documents to him which could affect the sovereignty, integrity
and security of our nation and could be useful to the enemy
directly or indirectly. As is commonly known, there can hardly
be an occasion where direct evidence of conspiracy is available.
Conspiracy, as it is said, is hatched in the dark and behind the
curtains and, therefore, has to be inferred from all the attending
circumstances of a case. It is settled law that at the time of
framing of charge the court is not required to make a roving
enquiry into the pros and cons of the matter and weigh evidence
as if it is conducting a trial. It is also well settled that where the
material placed before the Court discloses grave suspicion
against the accused which has not been properly explained, the
Court will be fully justified in framing charge. (Union of India
Vs. Prafulla Kumar, AIR 1979 SC 366). In view of the above
discussion, I am of the opinion that a prima facie case under
Section 120-B IPC and under Section 3(1)(c) of Official secrets
Act read with Section 120-B IPC is made out against accused.
9. So far as offences punishable under Sections
468/471/474 IPC and under Section 9 of Official Secrets Act is
concerned, these offences are allegedly committed by Mohd
6
Farooq who is not an accused in this case, hence accused Anil
Kumar Dubey cannot be charged for committing the alleged
offences.
10. Let charge for the offences punishable under Section
120-B IPC and under Section 3(1)(c) of Official Secrets Act read
with Section 120-B IPC be framed against accused Anil Kumar
Dubey.
Announced in the open court
3.8.2007 ( PRATIBHA RANI )
Addl. Sessions Judge/Delhi
IN THE COURT OF SMT. PRATIBHA RANI,
ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
7
DELHI
SC No.9/07
State Vs. Anil Kumar Dubey
ORDER
I have heard Sh. S.C. Sharma, Addl. PP for the State and Sh. Maninder Singh, ld. Counsel for the accused on the application for release of the accused on bail.
2. Ld. Defence counsel has submitted that it is a case of false implication and accused is languishing in jail since the day of his arrest i.e. 20.10.2006 and nothing incriminating has been recovered from him or at his behest. He he is a law abiding citizen and bail may be granted to him on such terms and conditions as may be deemed fit.
3. On behalf of prosecution, the application has been strongly opposed and it has been submitted that in view of the serious allegations and the grave nature of offence allegedly committed by the accused, he may not be enlarged on bail.
4. I have considered the rival contentions. As per the case of the prosecution, the accused Anil Kumar Dubey allegedly committed the offence punishable under Sec.3(1)(c) of Official Secrets Act and under Sec. 120-B IPC by entering into a conspiracy with an employee of Pakistan High Commission namely Mohd. Farooq. The accused was allegedly caught red 8 handed while he was handing over a recsin bag to Mohd. Farooq which contained classified documents as well as the documents which if falling in the hands of enemy could affect the sovereignty, integrity and security of our nation and could be useful to the enemy country. The offence allegedly committed by accused Anil Kumar Dubey is punishable with imprisonment for a period of 14 years. The nature of offence allegedly committed by the accused is so serious that he cannot be granted bail. Even otherwise a case under Official Secrets Act cannot be treated at par with the cases under the Indian Penal Code. Considering the gravity of the offence and the fact that despite being employee of AGI Directorate, Delhi the accused allegedly used his position in collecting the information which if in the hands of enemy could be useful to the enemy country threatening the sovereignty, integrity and security of our nation. He was allegedly caught red handed while handing over the same to Mohd. Farooq, an employee of Pakistan High Commission. The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. The nature of accusation, severity of punishment in case of conviction and nature of supporting evidence is to be taken into account while considering the bail application. [Anwari Begum Vs. Sher Mohd. & Ors. 2005 VIII AD (SC) 142].
9
5. In view of the above discussion, I am not inclined to release the accused on bail and prayer is hereby rejected. Application for grant of bail stands disposed off accordingly. Announced in the open court 3.8.2007 ( PRATIBHA RANI ) Addl. Sessions Judge/Delhi 10