Delhi District Court
Cbi vs . Rakesh Kumar Jain on 7 September, 2015
IN THE COURT OF ASJ/FTC (eCOURT)/WEST, TIS HAZARI COURTS : DELHI
SESSIONS CASE No. :46/09
ID No. 02401R0005161990
FIR No. : 06/86
U/s : 5(4), 5(2) & 5(3) O.S. ACT
P.S. : CBI/ACU-I/ND
CBI Vs. Rakesh Kumar Jain
S/o Sh. J.R. Jain
R/o H.No.26, Friends Colony
(West), New Delhi,
Joint Managing Director,
M/s. Jain Shudh Vanaspati Ltd.
101, Akashdeep Building,
26A, Barakhambha Road,
New Delhi.
Offence complained of : 5(4), 5(2) & 5(3) Official
Secrets Act, 1923
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 01.08.2008
Date of Judgment : 31.08.2015
RC 06/86 CBI Vs. Rakesh Kumar Jain Page 1 of 42
J U D G M E N T:
1. The present FIR was registered against the present accused and some unknown public servants of the Cabinet Secretariat for violating provisions of Official Secrets Act, 1923 on the basis of a complaint made by the Director in the Ministry of Commerce, Govt. of India vide DO letter Dt.09.07.1986.
2. The brief facts are that Sh. Rakesh Kumar Jain hereinafter referred as accused was Joint Managing Director of M/s. Jain Shudh Vanaspati Ltd. Akashdeep Building, Connaught Place, New Delhi. M/s. Jain Shudh Vanaspati was dealing in vanaspati oils. The Deputy Controller of Imports and Exports, Govt. of India, New Delhi vide order dt.17.02.1984 banned M/s. Jain Shudh Vanaspati Ltd., from importing or exporting vanaspati oil for 5 years as it was found that Jain Vanaspati was mixing Beef Tallow in Vanaspati oil and prosecution was recommended in the year 1984. Ministry of Commerce, Govt. of India, New Delhi had taken certain short term measures for augmenting the availability of Vanaspati oils. Sh. R. Venkateshan the then Joint Secretary, Cabinet Secretariat, Rashtrapati Bhawan, New Delhi had written DO letter No.28/1/1/84-ca, III (pt)/desk-A dt.10/17/12/1984 marked as secret to Sh. M. Subramaniyam, the then Secretary Department of Civil supplies, Govt. of India, New Delhi with request to prepare a paper for consideration of Cabinet Committee in this regard. Accused made a representation dt.24.04.1985 addressed to the Secretary, Ministry of Commerce, Govt. of India with request to withdraw the ban order imposed on it enclosing copy of above mentioned secret DO letter. The receipt and possession of the photocopy of the afore mentioned classified secret letter by the accused was taken RC 06/86 CBI Vs. Rakesh Kumar Jain Page 2 of 42 as prejudicial to the interest of State as it was a policy matter which could affect the economy of the country. On the basis of these facts complaint was made and the FIR No.RC6/86-C-14-1 was registered. Investigation was carried out by the CBI. Sanction to prosecute was granted by the competent authority u/s 13(3) of the Act and Sh. K.N. Tiwari, Deputy Supdt. Of Police, CBI filed the complaint against the accused in the court of Ld. CMM/Delhi. Ld. CMM took the cognizance of the offence detailed in section 5(2) and 5(3) of the official secrets Act, 1923 vide order dt.19.05.1988 and summoned the accused. As it was a complaint case therefore 11 witnesses were examined before charge u/s 244 Cr. P. C. Vide order dt.13.09.2000. Ld. ACMM framed the charges u/s 5(2) and 5(3) punishable u/s 5(4) of the Act. Accused pleaded not guilty. Thereafter the case was fixed for prosecution evidence. After the framing of charge all witnesses except PW-9 Sunder Rajan were produced for cross-examination and one another witness HC Kapil Ahlawat was examined as PW-12.
3. Sh. R.N. Notiyal was examined as PW-1. In his capacity of senior Officer Vigilance Department, Ministry of Commerce. He handed over one file in two parts to the IO on 11th July 1986 vide memo Ex.PW1/A i.e. File No.C-13011/115/83 vig. -note pages 1n to 38n and correspondence Pages 1 c to 168c.
4. Sh. H.R. Thukral was examined as PW-2 he also handed over certain documents to the IO vide memo Ex.PW2/A i.e. one photocopy register of Minolta Xerox Machine-7000 for the period from Dec.16, 1983 to February 27, 1985 containing 1 to 92 written sheets. Vide memo Ex.PW2/B the office copy of D.O letter No.28.01.1984-CA. III(Pt.) Desk A dt. Dec.10/17, 1984 issued by Sh. R. Venkatesan, Joint Secretary, (copy of Ex.PW2/B). He also handed over one diary register of Joint Secretary (V), Cabinet Secretariat for the year 1984 containing entries of D.O letter RC 06/86 CBI Vs. Rakesh Kumar Jain Page 3 of 42 No.28/1/1/84 CA.III vide memo Ex.PW2/C and he also identified signatures of Sh. R. Venkatesan on DO letter, now Ex.PW2/D. Ex.PW2/E is the office copy of said DO letter. He stated that most of the documents like letters, agenda and minutes of meetings are important documents and are of secret nature.
5. Sh. Santosh Kumar S/o Sh. Saligram was examined as PW-
3. He was stenographer attached with Sh. R. Venketesan, joint secretary, Cabinet Secretariat. He proved the register Ex.PW3/A and the entry Ex.PW3/DA vide which file No.18/1/1/84ca IIIrd was sent to under secreary Sh. Ajay Rastogi.
6. Sh. Lajpat Rai Dhawan was examined as PW-4. During the period he was working as UDC in the General Section of Cabinet Secretariat, Rashtrapati Bhawan. He stated that whenever a secret letter is received the same is put in a sealed cover and then in another envelope. Thereafter, it is entered in Peon book and sent to the addressee after making entry in the dispatch register. He deposed that the secret letter Ex.PW2/D signed by R. Venketeshan was received in the General Section in file No.28/1/1/84-ca/III with office copy Ex.PW2/E and the entry was made by one Moti Lal working in General section. The letter was kept in an envelope. Entry Ex.PW4/A was made in the peon book and it was sent to M. Subramanium, Secretary, Department of Civil Supply, Krishi Bhawan. The letter was sent through peon Jugal Kishor. This witness also made his endorsement Ex.PW4/C on the office copy Ex.PW2/E. The letter Ex.PW2/D was secret and it was mentioned on Ex.PW2/D and this copy is Ex.PW2/E.
7. Sh. Suresh Kumar was examined as PW-5. He was working as LDC in C.A III section of Cabinet Secretariat, Rashtrapati Bhawan. He received secret letter Ex.PW2/D and office copy Ex.PW2/E with movement file Ex.PW3/A from P.A to R. Venketesan. He wrote Desk A and dt.17th below on the same and RC 06/86 CBI Vs. Rakesh Kumar Jain Page 4 of 42 sent it to the General section for despatch. He received back the office copy Ex.PW2/E and made endorsement on it on 17.12.1984.
8. Sh. Jugal Kishore was examined as PW-6. He was working as peon in General Section. He took the DO letter in sealed cover from General section and delivered it in the personal section of Secretary, Civil Supplies, Krishi Bhawan under signature in the peon book at point Ex.PW4/A on 18.12.1984.
9. Sh. M. Subramanium was examined as PW-7. He was the then under secretary at Civil Supplies. He deposed that he received DO letter Ex.PW2/D which was marked by him to his Joint Secretary. He deposed that the DO letter was secret document.
10. Sh. Rama Krishnan Venketesan was examined as PW-8. He was the Joint Secrtary, Cabinet Secretariat, and sent letter Ex.PW2/D office copy of which is Ex.PW2/E to M. Subramanium PW-7, he is the person who marked the latter as secret. According to him he marked the letter as secret as there are rules of procedure for the cabinet, which require all matters going to the cabinet to be classified as secret. This letter in his view covered by rules and therefore, he classified it as secret.
11. Sh. S. Sunder Rajan was examined as PW-9. He accorded permission to prosecute the accused u/s 13(3) of the Act on behalf of Govt. of India after considering the evidence placed before him. He proved the order as Ex.PW9/A but this witness was not tendered for cross examination after framing of charge as he could not be traced.
12. Sh. Hari Haran was examined as PW-10. He was working in the Ministry of Commerce. He deposed that as per record the representation of M/s. J.S.V bearing signatures of Rakesh Kumar Jain dt.24.04.1985 was received by the concerned section officer on 28.04.1985. the representation is proved as Ex.PW10/A and RC 06/86 CBI Vs. Rakesh Kumar Jain Page 5 of 42 copy of DO Letter found annexed with the representation is Ex.PW10/B. The section officer put the note Ex.PW10/C. Therefore this witness wrote letter Ex.PW10/D to Sh. S.K. Pachori, Director, Ministry of Home Affairs that this attracts provisions of Official Secret Act 1923. The letter is proved as Ex.PW10/E. Subsequently he wrote the letter Ex.PW10/F to DIG CBI to look in to the matter.
13. Sh. K.N. Tiwari, IO of the case was examined as PW-11. He prov ed the investigation carried out by him and various seizure memos.
14. HC Kapil Ahlawat was examined as PW-12. He deposed that court summons Ex.PW12/A was received by him to be served upon PW-3 Sunder Rajan, PW-9 but he was not found at the given address. It was told that Sh.Sunder Rajan had sold his house and his present whereabouts are not known. Thereafter, prosecution evidence was closed. Statement of accused was recorded under section 313 Cr.PC wherein he denied the entire evidence. He stated that contents of the said letter are not covered within the meaning of section 5(2)(3) of the Officials secret act. He alleged that he has been falsely implicated. He wish to lead evidence in defence. Thereafter, the case was fixed for DE.
15. At this stage an application u/s 311 Cr.PC was moved by prosecution and Sh. K.N. Tiwari, PW-11 was re-called for further examination. He proved the certified copy of writ petition Ex.PW11/X filed by the accused in the High Court. This witness stated that writ petition was dismissed for non prosecution as per communication Ex.PW11/X-1.
16. Thereafter statement of accused was again recorded u/s 313 CrPC wherein he denied the evidence against him and stated that he was the General Managing Director of M/s Jain Shudh RC 06/86 CBI Vs. Rakesh Kumar Jain Page 6 of 42 Vanaspati at the relevant time vide order dt. 17.02.1984. The company was debarred from importing goods or getting allotment of the imported goods under clause VIII of the Import control order 1955. Number of representation were made by him on behalf of the company to withdraw the order. Representation dated 24.04.1985 to the Ministry of Commerce, Government of India to which dispute DO dt. 17.12.1984 is enclosure is one of such representation. The purpose of representation was simple to impress upon the Government to withdraw order dt. 17.02.1984 so that manufacturing of Vanaspati could be re-started and availability of Vanaspati may became easy. He had no knowledge or reason to believe that copy of DO letter was violating of officials secret act. He wished to lead evidence in defence.
17. He examined Sh. Ashish V. Gawai, Under Secretary, Ministry of Home Affairs as DW-1. He produced the departmental secret instructions relating to the classified documents. Photocopy of Chapter 13 from this book was taken on record as Ex.DW1/1. Photocopy of Chapter 1 of this compilation was taken as DW1/P1. Sh. Ashish V. Gawai was recalled u/s 311 Cr.PC along with summons, copy of the instructions and guide lines were seen and he deposed that no such instructions or guide lines have been issued by Ministry of Home Affaris.
18. Ms. Baljeet Kaur Rekhi, Section Officer, Ministry of Home Affaris was examined as DW-2. She again produced the compilation of the departmental secrets instructions relating to the classified documents of the photo copy of Chapter 6 was taken on record as DW2/B. Thereafter, defence closed its evidence and the case was fixed for arguments.
19. Ld. Special PP for CBI submitted that prosecution in order to bring home the guilt of the accused has examined 12 witnesses. The onus was on the prosecution that secret DO letter dt.10/17/12 RC 06/86 CBI Vs. Rakesh Kumar Jain Page 7 of 42 1984 was secret document which is Ex.PW2/D the original. PW- 2/B is the office copy of the same and PW10/D is the copy of the same secret letter which was annexed with the presentation Ex.PW10/A by the accused. Witness PW1 has handed over the entire file in which the original DO letter was signed by the witness PW-8 Sh. R.K. Venketeshan. PW-2 who is the Under Secretary administration, Cabinet Secretariat, Rashtrapati Bhawan had deposed that DO letter Ex.PW2/D is a official secret letter as it contains the secret information. PW-4 Sh. Lajpat Rai Dhawan and PW-5 Sh. Suresh Kumar both officials of Cabinet Secretariat confirmed that PW-2/D is a secret letter issued by Joint Secretary Sh. R.K. Venketeshan who marked it as secret. Entry was made in the despatch register and was sent to M.Subramanium Secretary Department of Civil Supplies, Krishi Bhawan. PW-4 also confirmed that it was marked as secret as per guidelines /rules and it was a DO letter containing secret information and therefore officer marked it as a secret. Sh. Jugal Kishor delivered the letter in the personal section of the secretary M. Subramanium in a sealed cover. The deposition of R.K. Venketeshan who marked it as a secret is very important who specifically mentioned that he marked this letter as secret as there are rules of procedure which requires that all matters going to cabinet be classified as secret. According to him this letter was covered by this rule and therefore classified as secret. This letter requests the department of Civil Supplies to submit the papers for consideration by the cabinet committee on political affairs and refers to the policy to be followed with regard to Vanaspati Unit which were under orders of abeyance as recommended by the special committee. Ld. PP submitted that the secret means that there should be no unauthorised disclosure of that document. During cross- examination also this witness has deposed that he must have RC 06/86 CBI Vs. Rakesh Kumar Jain Page 8 of 42 considered the requirements regarding classification of documents regarding marking the document as secret. The witness has also clearly stated that disclosure of the contents of letter were expected to cause serious damage to the National interest and serious embarrassment to the Govt. of India in its function. The letter was marked as secret after considering its contents as it contains policy of price. So it was very confidential. No evidence has been brought on record to rebutt the evidence/ contention that the document could not have been marked as secret. Rather Ex.DW1/P-1 supports the version of PW-8 Sh. R. Venketeshan. In the chapter 1 of Departmental Instructions the term 'secret' has been defined and according to this definition the contents of the letter comes under the preview of provisions and therefore marked as secret.
20. Ld. Special PP further submitted that the secret letter was sent to PW-8 who deposed that he received this letter from Sh. R. Venketeshan Joint Secretary, Cabinet Secretariat, Rashtrapati Bhawan and this letter is secret because it deals with the policy matter on import and allocation of edible oil and pricing policy of edible oils and vanaspati. It was not in public interest that information on the subject be available to the persons not concerned with the matter until it is cleared by the concerned cabinet committed and public policy commencement is made. The disclosure of the information was going to prejudicially effect the economy I.e matter related to distribution and pricing of essential commodities. There is nothing on record to show that defence was able to challenge marking the letter is secret. Ex.PW7/DA is the letter which was seized by the IO from the office of Cabinet Secretary and it was produced at the instance of defence lawyer in the court. This letter strengthens the contentions of PW-8 Sh. R. Venketeshan and PW-7 Sh. M. Subramanium that contents of RC 06/86 CBI Vs. Rakesh Kumar Jain Page 9 of 42 letter was secret and confidential. PW7/DA is the letter dt.20.09.1984 written by PW-7 to the secretary C.R. Krishna Swami Rao of cabinet secretariat, Rashtrapati Bhawan mentioning therein that it is not proposed to explore the possibility of taking over all the 5 units whose allocation of imported oil has been held in abeyance under order of CCI&E. This has the approval of Minister FR&CS. Ld. APP submitted that this letter strengthens the contentions of PW-8 and PW-7 that the contents of DO letter were confidential and its disclosure would have effected the availability of the edible oil in the country. Sh. N.S Hari Haran, Director of Ministry of Commerce was examined as PW-10 where the representation sent by the accused dated 24.04.1985 was received which is proved as Ex.PW10/A. This representation was accompanied by the copy of secret letter which is Ex.PW10/B. Ex.PW10/B is the photocopy of the DO letter Ex.PW2/D. It is the same letter which was sent by Sh. R Venketeshan to Sh M. Subramanium and was marked as secret. It was found that it is in violation of Official Secret Act, 1923. DO letter was sent to doctor S.K. Pachori, Director of Ministry of Home Affairs requesting that as the accused has been able to get a photostat copy of secret information the matter is brought to your notice for necessary action. It was thereafter examined in detail and ultimately DO letter Ex.PW10/E was written referring the matter to CBI for legal action against accused as he has violated the provisions of section 5 of the Official Secret Act, 1923. Written complaint Ex.PW10/F was prepared. Ld. Counsel submitted that in this case the sanction to prosecute was proved by PW-9 Sh. Sunder Rajan Under Secretary, Ministry of Home Affairs and the sanction letter is Ex.PW9/A. PW-9 was examined in pre-summoning and pre charge evidence and was also cross-examined by defence counsel but no material was brought on record discrediting PW-9 RC 06/86 CBI Vs. Rakesh Kumar Jain Page 10 of 42 or that sanction has not been accorded in accordance with law. But PW-9 cannot be produced in the witness box after the framing of charge as PW-9 was not traceable. In this regard prosecution has examined PW-12 who deposed that the present whereabouts of the witness could not be find out and he is not traceable. He proved his report as Ex.PW12/A. Ld. Special PP submitted that as PW-9 was examined and cross-examined during pre-charge evidence and thereafter he was not traceable. Therefore, his evidence is admissible under law.
21. Ld. APP submitted that as PW-10 has stated that it was the accused who submitted the presentation dt. 24.04.1985 Ex.PW10/A enclosing the copy of secret letter which is Ex.PW10/B this fact is proved even by the noting of the sanction of Ministry of Commerce Ex.PW10/C. The representation itself prove that the accused had enclosed the secret letter. During the search by PW- 11 of the office of the accused he also recovered one copy of the letter Ex.PW11/RX-1. He also filed one copy of the letter along with the writ petition filed in Delhi High Court Ex.PW11/X which clearly shows that accused Rakesh Jain was in possession of the secret DO letter. Though in the statement u/s 313 Cr.PC accused has denied the possession of the letter. But in the subsequent statement u/s 313 Cr.P.C recorded after further examination and cross-examination of PW-11 he admitted that he had sent the representation enclosing the photocopy of secret letter dt. 10/17 December 1984 but had no knowledge that it was a secret letter. This defence is no denfence because on the top of letter itself mentioned that it is a secret document. This itself shows that accused was in possession of the letter marked as secret. The contents of the letter were also secret as is evident from the testimony of PW-2, PW-4, PW-5, PW-7, PW-8 and PW-10. Accused possessed its copy in contravention of provision of RC 06/86 CBI Vs. Rakesh Kumar Jain Page 11 of 42 section 5 of the Official Secret Act, 1923. Ld. PP submitted that prosecution has proved beyond doubt that accused has violated the provisions of section 5(2) and section 5(3) of the officials secret Act, 1923 and hence liable to be held guilty for the same.
22. Ld. Defence counsel submitted that the onus was on the prosecution to prove that accused has violated any provisions of the officials secret act particularly section 5(3) and 5(2) of the Act. ld. Counsel submitted that section 5(3) of the Act reads as under:
5(3) If any person having in his possession or control any sketch, plan, model, article, note, document or information, which relates to munitions of war, communicates it, directly or indirectly, to any foreign power or in any other manner prejudicial to the safety or interest of the State, he shall be guilty of an offence under this section.
Ld. Counsel submitted that it is significant to note that the word secret " is not used in the above sub section, therefore, entire evidence produced by the prosecution to prove that DO letter in question was secret has no relevancy. The DO letter is to be taken as an ordinary document. As per the above provisions the document under consideration shall relate to munitions of war which term is defined in section 2(5) of the Act. Admittedly the DO letter does not relate to munitions of war. The documents is also not communicated directly or indirectly to any foreign power. The words "or in any other manner prejudicial to the safety or interest of the state". These words are to be read in juxtaposition of the words 'communicates directly or indirectly' and in 'munitions of war'. The words in any other manner are to be read over directly or indirectly but the nature of document will remain the same I.e in relation to munitions of war. No other document can be included in the sub section. Ld. Counsel submitted that if we make reference to section 3 (1) (c) of the Act the first part of this clause refers to document etc. 'which are calculated to be or might be or intended RC 06/86 CBI Vs. Rakesh Kumar Jain Page 12 of 42 to be directly or indirectly used to be enemy'. The second part of the sub section inserted w.e.f 1967 provides 'or which relates to a matter the disclosure of, 'or which relates' clearly refer to document etc other than referred to in the first part of sub section. In section 5 sub section 3 words 'or which relates' are not there, therefore under sub section 3 (1)(c) document other than which relates to useful to an enemy may be included but documents un connected with 'munitions of war' cannot be included under section 5 of sub section 3 of the Act in spite of the above conclusion term 'prejudicial to the safety' or 'interest of the State' used in section 5 of sub section 3 may be considered, so far as word 'prejudice' is concerned it means injury, damage, harm, affect adversely or unfavourably as provided in New Oxford English Dictionary page 233 and 'safety' as provided in the above mentioned dictionary at page 2666 is defined as 'State of being protected from or guarded against hurt or injury, freedom from danger'. 'Interest' is defined as concern, importance, benefit in Chambers Dictionary page 872.
Ld. Counsel submitted that mere using the above terms by prosecution through its witnesses cannot be taken as sufficient to prove the commission of offence against accused. Prosecution was required to satisfy as to in what manner and to what extent wrong has been caused to the State so as to bring the act of the accused within the ambit of the offending provisions. The alleged secret DO which is in question simply asks for a paper on the mentioned subject from Ministry of Commerce. Here the word paper will mean a note, a comment or a contribution in writing. PW-7 M. Subramanium in examination in chief stated that this letter is secret because it deals with the policy matter on import and allocation of edible oil and the pricing policy of edible oil and vanaspati. It is not in the public interest for information on the subject to be known to the persons not concerned with the matters RC 06/86 CBI Vs. Rakesh Kumar Jain Page 13 of 42 until the same is considered by the concerned cabinet committee and the public policy announcement is made. The disclosure of the information will prejudicially effect the economy in matter relating to distribution and pricing of essential commodities. This statement is to show as to why DO was classified as secret. Ld. Counsel submitted that DO only ask for the paper that paper which may have dealt with various aspects of the policy are not subject matter of the present case. There is nothing on record as to how the economy will be affected adversely even if limited information asking on paper is divulged. Ld. Counsel submitted that this witness during cross-examination dt.04.12.2010 had himself admitted "it is correct that short term measures taken for augmenting availability of vanaspati had not been mentioned in Ex.PW2/D (DO). It is correct that the said letter also does not mention the recommendations made by special action committee on prices. It is correct that policy to be followed with regard to Vanaspati unit which were under orders of abeyance had not been formulated till the time Ex.PW2/D was written. It is correct that papers has been used in Ex.PW2/D ment of the Indian/comment/suggestions on the subject." It is again submitted that no opinion, comments, suggestions are subject matter of the case. Even R. Venketeshan PW-8 the writer of the DO has replied similarly as regards the contents of DO, he deposed "it is correct that again said after going through the letter Ex.PW2/D I cannot say whether anything /remember/recollect as to if anything mentioned herein about the policy vol. I cannot remember what implication about policy this letter has. I am not in position to discuss about the content of this letter." During cross-examination he stated that despite going through the letter Ex.PW2/D. I cannot say whether or not any policy had yet been formulated by Govt. of India with regard to RC 06/86 CBI Vs. Rakesh Kumar Jain Page 14 of 42 Vanaspati, which were under abeyance by order. Similar is the statement of PW-10. Ld. Counsel submitted that therefore considering all these facts in relation to section 5(3) of the Act, it is clear that it was not a secret letter and it was not related to any munition of war and therefore there was no violation of section 5(3) of the Act.
Ld. Counsel further submitted that section 5(2) of the Act reads as under:
Section 5(2) If any person voluntarily receives any secret official code or pass word or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe, at the time when he receives it, that the code, pass word, sketch, plan, model, article, note, document or information is communicated in contravention of this Act, he shall be guilty of an offence under this section.
Ld. Counsel submits that from bare perusal of this section it is clear that there is absolutely no evidence on record as to when, where and from whom the accused had received the DO letter in question. Ld. Counsel submitted that possession is different from receiving Possession is not the ingredients of section 5(2) of the Act. Assuming that the DO letter was sent by the accused with his representation to the Ministry of Commerce, it may be evidence of possession but not receiving with the other ingredients of the section. Legally speaking it will be hypothetical argument that there cannot be any possession without any receiving. The two words denotes different meanings. Inference or presumption of meaning cannot be drawn under the circumstances. It had to be proved beyond doubt by prosecution by leading specific evidence which is not there. Ld. Counsel in support of his arguments has relied upon the Judgment cited as Govind Raju, Banarsi Dass, Arun Vival Ji and Tapas.
Ld. Counsel submitted that applying the above test in the RC 06/86 CBI Vs. Rakesh Kumar Jain Page 15 of 42 above mentioned cases and keeping in view the requirement of the section 5 (2) of the Act, it is clear that there is no evidence of receiving the DO by the accused, therefore he being aware, cognizant and conscious of the contents of the DO being violative of the act at the time of allegedly receiving D.O does not arise. The term 'reason to believe' is defined in section 26 of IPC which reads as under. A person is said to have reason to believe a thing if it has sufficient cause to believe that thing but not otherwise. This again has to be at the time of receiving and not subsequent thus to the third ingredient of section 5 (2) of the Act is that the information was communicated in contravention of the Act. It is nowhere stated either in the complaint Ex.PW11/C or in any other document or the evidence adduced as to which provision stands contravened. It is also not mentioned in the charge. Ld. Counsel submitted that the opening words of the sub-section (2) of section 5 are if any person voluntarily receives any secret official code, password or any sketch etc. The question is as to whether the word secret qualifies all the subsequent words used or only the beginning word before first comma that is 'any sketch'. The concerned DO letter is a 'document' the word 'secret' cannot be taken as qualifying word for 'document' also. In fact the entire prosecution case is based upon the secret document. The section 3(1)(c) of the Act wherein obtaining of secret official code or password, or any sketch etc have been considered by Delhi High Court in Rama Swaroop v. State (Delhi Administration), 1986 CriLJ 526 and held that:
"28. In Sunil Ranjan Das v. The State, 1977 C.W.N. 1961, following was held :
"The word 'secret' in Section 3(1)(c) of the Official Secrets Act, 1922 qualified the words "Official code or password" only and not the words "any sketch, plan etc." appearing the thereafter. In order to sustain a RC 06/86 CBI Vs. Rakesh Kumar Jain Page 16 of 42 charge under the aforesaid section in respect of any sketch, plan etc. It is not necessary to prove that the plan or any other item mentioned was a secret document. It would suffice to show that the plan or any other document obtained and communicated to any other person was calculated to be or might be or was intended to be directly or indirectly useful to the enemy. The word 'enemy' in the expression useful to 'enemy' in the said Section 3(1)(a) means a potential or future enemy or an unfriendly power with which this country might be at some further date in a state of war and not an actual enemy with which this country is at war."
29. It, therefore appears that even an information which may not be secret but which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign State or useful to an enemy is an offence under Section 3 of the Official Secrets Act. It also appears that word 'enemy' also means an 'unfriendly power'."
The Apex Court in case Sama Alana Abdulla v. State of Gujarat, AIR 1996 SC 569 has held that:
"8. In our opinion, the view taken by the Gujarat High Court in this case and by the Calcutta High Court in the case of Sunil Ranjan Das is correct. We find that the said interpretation also receives support from sub- section (2) of Section 3. While providing for a presumption to be raised in prosecution for the offence punishable under that section the phraseology used by the legislature is "if any sketch, plan, model, article, note, document or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated.". From the way the said-section is worded it becomes apparent that the qualifying word 'secret' has been used only with respect to or in relation to official code or password and the legislature did not intend that the sketch, plan, model, article, note, document or information should also be secret. As we do not find any substance in the second contention RC 06/86 CBI Vs. Rakesh Kumar Jain Page 17 of 42 raised on behalf of the appellant it is also rejected. In the result, the appeal fails and is dismissed."
The interpretation as taken by the various courts has to be applied to section 5(2) of the Act and word secret occurring therein to be qualified word, "Official code, password or any sketch only and not the word occurring thereafter including 'document'. Thus DO in question is to be taken as an ordinary document and marking it as secret is having no meaning and relevance to the present case. The entire prosecution evidence produced to prove that letter as secret is irrelevant and cannot be taken into consideration for deciding the charge.
23. Ld. Counsel submitted that DO in question was marked as secret as a matter of routine and without following the instructions of Govt. of India in respect of classified documents proved in defence. DW-1 from Ministry of Home Affairs has filed Ex.DW1/P1 which is a copy of chapter 1 of Departmental Security Instructions. Its para 2.1 lays down that 'secret' shall be applied to information and material, the un authorised disclosure of which could be expected to cause serious damage to the national security and national interest or cause serious embarrassment to the Govt. in the functioning. Note this classification should be used for highly important matters and in the highest classification normally used.
24. Para 3 of the said instructions also gives illustrative information which deserves to be classified as such it is therefore wrong that every communication emerging from cabinet secretariat was to be classified as secret.
25. DW-2 is also an official from Ministry of Home Affairs who has filed copy of Chapter-6 Ex.DW2/B titled as Instructions regarding secret documents. After examining the statements of prosecution witnesses on the touch stones of these instructions, it RC 06/86 CBI Vs. Rakesh Kumar Jain Page 18 of 42 is evident that the official instructions have not been followed in the marking DO in question as secret. It has been classified so, as a matter of routine without deserving.
26. Ld. Counsel further submitted that so far as PW-9 is concerned he has signed on the order in the name of President on the Ex.PW9/A. This witness was the Under Secretary, Ministry of Home Affairs at the relevant time but was not competent to file or accord sanction. It was for the Ministry concerned to pass order in the name of president of India and this witness could not only authenticate the same being authorised signatory. The testimony of this witness revealed that he had made the order Ex.PW9/A after considering the evidence which was placed before him by the IO. He does not say that issue was considered by the Ministry who collectively constituted the Central Govt. The circumstances taken into consideration show subject that order Ex.PW9/A was not passed by the Central Govt. or appropriate government. ld. Defence Counsel submitted that according to PW-9 the material was placed before him but whereas PW-11 stated that no document or statement was sent along with Ex.PX. However, he was called along with the file where he met DS and US in DOPT. It is contrary to the statement of PW-9 who was working in Ministry of Home Affairs and not in DOPT. Thus it is clear that PW-9/A was issued by PW-9 only on the basis of letter Ex.PW11/B without going through the available evidence.
27. Ld. Counsel further submitted that the trial of the case has been held under Part B of Chapter XIX of Cr.PC. PW-9 was cross-examined before charge but not cross examined after charge as required u/s 245 Cr.PC. Therefore accused was deprived of valuable right of charge. The right of cross- examination before charge is not a substitute for the right of cross- examination as specifically provided u/s 246 Cr.PC. Ld. Counsel RC 06/86 CBI Vs. Rakesh Kumar Jain Page 19 of 42 in support of his arguments relied upon Judgment of the Patna High Court in case G. L. Biswas and others v. State, AIR 1950 Patna 550 wherein it was held that:
28. "Thus, an examination of the provisions of these different sections of Chap.21 of the Code clearly shows that an absolute right of cross- examination by the accused is expressly given only by Section 256, after the charge is framed. Before the framing of the charge, there is no express statutory provision for the cross-examination of any of the prosecution witnesses. The phrase" take all such evidence as may be produced in support of the prosecution" occurring in section 252 of the Code has been interpreted in several cases to mean that the Magistrate should give the accused an opportunity to cross-examine the prosecution witnesses, if be should so desire, even though the charge may not be framed, a procedure that is well established in this State. But that is not the same thing as saying that the Magistrate must give the accused an opportunity to cross-examine the prosecution witnesses before the charge (Ashirbad v. Maju, 8 C.W.N. 838; and Emperor v. C.A. Mathews, AIR (16) 1929 Cal. 822:
(31 Cr. L.J. 809)). The Magistrate has no power to prohibit cross- examination of the witnesses for the prosecution after the charge has been framed; if he does so there will be a clear violation of the mandatory provision of section 256 of the Code. Even the accused has cross-examined the witnesses before the charge, it is not open to the Magistrate to disallow cross-examination after the charge on the ground that the provisions of section 256 have been substantially complied with by cross-examination before the charge. It may be observed that section 256 does not prohibit cross-examination before a charge, and the principle upon which the accused is given an opportunity to cross-examine the prosecution witnesses before the charge is framed seems to be that the accused should be discharged and not unnecessarily harassed by a criminal prosecution if it can be shown by cross-examination before the charge that the materials produced before the Court are not sufficient to warrant a conviction."RC 06/86 CBI Vs. Rakesh Kumar Jain Page 20 of 42
29. The Gwalior Bench of Madhya Bharat in case Khunni Chhanua and others v. State, AIR 1951 Madhya Bharat 106 has held that:
"2. Mr. Amanatulla, the learned counsel for the applicants has raised three contentions. His first contention is that on 13.9.1949 prosecution witnesses were recalled for cross-examination. As the Bar Association at Morena passed a resolution not to work on that day the appcts' Vakil did not turn up. The accused prayed for an adjournment which was refused and the accused were deprived of their right to cross-examine the witnesses. On 31.10.1949, another appellant was made by the accused to allow the prosecution witnesses to be cross-examined. But that appellant too was rejected. As the accused have been deprived of their very valuable right their case is prejudicially affected. Under Section 256, Criminal Procedure Code (S. 226, Gwalior Criminal Procedure Code) after the charge is framed it is obligatory on the Mag. to recall the witnesses named by the accused for cross-examination. The right of cross-examination granted in this section is absolute right and the Mag.
has no power to disallow it. (Vide Lockby v.
Emperor, AIR 1920 Madras 201 : (21 Cr LJ 297), Radhakishan v. Ramkrishna, AIR 1924 Nagpur 114 : (25 Cr LJ 912) and Emperor v. Lakshman, AIR 1929 Bombay 309 : (31 Cr LJ 309). In the present case the accused were deprived of their right of cross-examination on the ground that their Vakil did not turn up. The pleader was, no doubt, in the wrong in not attending the Ct. without taking permission from the Ct. But that is no reason to deprive the accused of their valuable right. It is only after the charge is framed that the accused is in a position to know exact nature of the case he is called upon to meet and hence the cross-examination of the prosecution witnesses is of great importance to his case. The Mag., therefore, should afford a full and reasonable opportunity to the accused to exercise his right under S. S66, Criminal Procedure Code (vide Pita v.
Emperor, AIR 1925 Allahabad 285 : (26 Cr LJ 575), RC 06/86 CBI Vs. Rakesh Kumar Jain Page 21 of 42 Sher Singh v. Emperor, AIR 1916 Lahore 445 : (17 Cr LJ 278) and Murugesa, Naidu, In re, AIR 1916 Madras 142 : (16 Cr LJ 334) In Subbiah v.
Venkatasubbamma, AIR 1942 Madras 672 : (44 Cr LJ 10), the Madras H.C. held that omission to give facilities to the accused for further cross-examination is an omission of grave nature The learned Mag. should certainly have granted an adjournment to allow the accused an opportunity to cross-examine the prosecution witnesses. It is no doubt true that the witnesses were cross-examined before the charge was framed. But as already stated the exact nature of the case is known to the accused only when the charge is framed and hence the Legislature had made a mandatory provision that if the accused so desires he must be given an opportunity to cross-examine the prosecution witnesses. In my judgment refusal to allow such an opportunity has occasioned a failure of justice. This contention must, therefore, be accepted."
30. Ld. Counsel submits that in this case the court issued summons to recall PW-9 for cross-examination u/s 246 (3) Cr.PC. It was reported by the process serving agency that he is not available at the given address of Delhi. Ld. Counsel submitted that HC Kapil Ahlawat was PW-12. Prosecution wants to take benefit of section 33 of Evidence Act, 1872 but it has not been established that the statement of PW-9 is covered under section 33 of Evidence Act 1872. No efforts whatsoever have been made to found out present whereabouts of S. Sunder Rajan. Ld. Counsel submitted that he must be drawing pension at some address and that address be available in the office, no efforts whatsoever have been made to find out where about and thereby violated legal right of the accused u/s 246(5) Cr.PC as it was claimed. Ld. Counsel submitted that under the circumstances the testimony of this witness cannot be relied upon. Ld. Counsel in support of his arguments has relied upon judgment cited as Kumbhar Ramji Jadev v. The State, 1963(4) GLR 517 = 1963 CriLJ 560 wherein Gujrat High Court has RC 06/86 CBI Vs. Rakesh Kumar Jain Page 22 of 42 held that:
"3. The contention of the learned Government Pleader that under section 256 (1), Criminal Procedure Code, the names of the witnesses whom the accused wants to further cross-examine should be given has no substance. It is open to the accused to say that he wants all the witnesses for further cross-examination, in which case he need not give the names. It he wants some of the witnesses for further cross-examination, then only he has to give names. In view of his answer in his examination and Ex. 6 he wants all the prosecution witnesses barring the complainant for further cross- examination. It is conceded that only the doctor has been offered for further cross-examination. The failure to offer the prosecution witness for further cross- examination is a material irregularity and the contravention of the provisions of section 256 Criminal Procedure Code and the accused must be prejudiced by it. It appears that the doctor was examined in chief and was also further cross-examined."
The Kerala High Court also had the same opinion in case K. Madusudanan Namboodiri v. Unni Nair and others, 1975 Cri.L.J. 751 and opined that:
"The procedure to be adopted by the magistrate under Section 256 of the Code of Criminal Procedure is to make all efforts to secure the attendance of the witnesses to enable the accused to further cross- examine them, if it is found necessary, even by the issue of coercive process. It is illegal for a magistrate to eschew the evidence of a prosecution witness examined before the framing of the charge against the accused on the ground that he or she was not produced by the complainant for the purpose of cross- examination."
The Calcutta High Court also had the same opinion in case Khagendranath Chattopadhya v. Samdud Huda, 1992 Cri.L.J.2836 and held that:
"3. Again the procedure adopted by the learned Magistrate due to the absence of the complainant RC 06/86 CBI Vs. Rakesh Kumar Jain Page 23 of 42 cannot be approved. It was a warrant procedure case started on the basis of a complaint. On 6-6-81 the learned Magistrate expunged the evidence which the complainant had earlier tendered before framing of charge. The reason of expunging the evidence seems to be that the concerned witnesses including the complainant who had been earlier examined did not turn up on 6-6-81 for cross-examination after framing of charge. We are however of the opinion that the learned Magistrate was not justified in expunging the evidence simply because the witnesses concerned did not turn up. In this connection we may look to the relevant provisions of Section 246, Criminal Procedure Code which runs thus:
"Section 246(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion, could be adequately punished by him he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-
examination and re-examination (if any), they shall also be discharged."
From a reading of the said provisions it will appear that after framing of charge the Magistrate is required to RC 06/86 CBI Vs. Rakesh Kumar Jain Page 24 of 42 recall only such of the witnesses earlier examined as the accused shall wish to cross-examine and this he will do after ascertaining the wish of the accused in this regard. In the present case, however, the learned Magistrate, without ascertaining the wish of the accused, fixed 6-6-81 by his order dated 2-6-81 for cross-examination of all P.Ws. after charge. It is not known whether as a matter of fact the accused persons would wish to further cross-examine those witnesses whom they had already examined before charge. That being so, it was not proper for the learned Magistrate to expunge their evidence on the ground of their non- appearance, without ascertaining the wish of the accused persons as to whether they really required the presence of those witnesses for further cross- examination. And even where, their presence is so required, sub-section(5)of section 246, Criminal Procedure Code casts a positive duty upon the Magistrate to recall such witnesses which duty is not discharged by merely fixing a date for their cross- examination. In order to discharge that duty the Magistrate shall have to issue summons, if necessary, and enforce the attendance of the conferred witnesses which unfortunately he did not do. In the circumstances, we are of the view that the learned Magistrate was not justified in expunging the evidence and thereafter passing the judgment of acquittal on the footing that there was no evidence in the case."
The Allahabad High Court in case Hari Prasad and others v. The State, AIR 1953 All. 660 has held that:
"14. We may further refer to another illegality committed by the learned Sessions Judge in the trial of this case and it relates to his admitting the evidence of Jheemal Singh and Abdul Majid Sub-Inspector on record under Section 33, Evidence Act without any proof, what to say of strict proof, of any of the conditions precedent for taking the evidence on record under Section 33, Evidence Act. It appears that Jheemal Singh used to reside at Moghal-Sarai, though a resident of some village, and that the constable who went to serve the summons on him could not find him at his house, he having gone to his village residence. This inability to find Jheemal Singh cannot be said to lead to the RC 06/86 CBI Vs. Rakesh Kumar Jain Page 25 of 42 conclusion that Jheemal Singh could not be found with a little more diligence, or with an adjournment for a short period of the sessions case it could not have been possible to secure the presence of Jheemal Singh."
A Division Bench of Rajasthan High Court also had the same opinion in case titled Kishan Lal v. Sohanlal and others, AIR 1955 Raj. 45 and held that:
"It is contended by learned counsel for the respondents that the terms of Section 33 were not complied with and therefore the District Judge was wrong in admitting in evidence Ex.D 5 and D 6. So far as Ex.D.5 is concerned, it is the statement of Motiram who is dead. One condition is therefore satisfied in this case. But Ex.D.6 is the statement of Bhura. That man was alive when this statement was admitted. All that was proved was that he had gone away to 'Disawar'. That alone, in our opinion, was not enough to prove that the witness could not be found. There was no order of the court admitting Ex.D 6 on the ground that the witness could not be found, or his presence could not be obtained without an amount of delay or expense which, under the circumstances, was unreasonable."
A Division Bench of High Court of Delhi in case titled Mohd. Shahabuddin v. State (GNCT) Of Delhi, 2012 (4) JCC 2432= 2012(7) AD(Delhi) 711 held that:
"6. Rajender Kumar had appeared as PW-10 and his examination-in-chief was concluded on 31st July, 2007. His cross-examination was deferred at the request of the Amicus Curiae. Thereafter, he was not produced for cross-examination as he had expired. Therefore, evidence of PW-10 cannot be taken on record, as requirement of Section 33 of the Evidence Act, that the accused should have been granted opportunity to cross-examine the witness, is not satisfied."
31. Ld. Counsel submitted that consequently order Ex.PW9/A is not proved. The sanction u/s 13(2) of the Act remained unproved and consequently the case of the prosecution fails.
32. Ld. Counsel further submits that in this case the FIR was RC 06/86 CBI Vs. Rakesh Kumar Jain Page 26 of 42 registered which is based on the letter Ex.PW10/F. The case was investigated u/s Chapter XII of the Cr.PC. therefore, closure report or charge sheet should have been filed which has not been done but there is no explanation to the same.
Ld. Counsel further submitted that statement u/s 313 Cr.PC is not substitute of section 3 of the Evidence Act, 1872 or substitution of the prosecution evidence. The onus which is on the prosecution to prove and establish the guilt of the accused beyond reasonable doubt is always on the prosecution and therefore unless the prosecution proves on record the guilt of the accused. The accused cannot be held guilty merely on his statement u/s 313 Cr.PC. Ld Counsel in support of his arguments relied upon judgment cited as Sri Sujit Biswas Vs. State of Assam, AIR 2013 SC 3817 wherein the Supreme Court held that:
"12. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 Criminal Procedure Code, is to meet the requirement of the principles of natural justice, i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Criminal Procedure Code, cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement."
33. Ld. Counsel submitted that in this case certain documents have been exhibited but merely exhibiting documents does not RC 06/86 CBI Vs. Rakesh Kumar Jain Page 27 of 42 prove and establish those documents. As only that evidence will be looked into which is proved in accordance with Indian Evidence Act, 1872. Similarly, only original documents has to be placed on record and secondary evidence can be brought on record only after permission. Ld. Counsel submitted that in this case PW-1, PW-2, PW-3, PW-4, PW-5 and PW-7 have deposed and during their examination certain documents have been exhibited but without reference to the original documents or establishing / proving the documents. ld. Counsel submitted that merely putting the exhibits as such does not mean that document stands proved and such document cannot be look into. Ld. Counsel in support of his arguments relied upon the case titled M/s Sudir Engineering Company v M/s Nitco Roadways Ltd., 1995 II (Delhi) 189 Hon'ble Mr. Justice R.C. Lahoti opined that:
"15. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was I he document before the winless when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit."
The Supreme Court in case titled Narbada Devi Gupta v Birendra Kumar Jaiswal, AIR 2004 SC 175 held that:
"16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd., (supra). The legal position is not in dispute that RC 06/86 CBI Vs. Rakesh Kumar Jain Page 28 of 42 mere production and marking of a documents as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue.' The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as an admitted documents."
The Hon'ble High Court of Delhi in case titled Shankutala v State, 2011 (2) JCC 1001 has opined that:
"In Arti Bhargava (supra), it was held by the Supreme Court that the genuineness of the photocopies cannot be guaranteed unless there is evidence that someone had compared the photocopies with the original or had obtained the photocopies from the original. In The United India Insurance Company Limited (supra), it was held that production of photocopy of driving license was not sufficient to prove that the driver had a valid license and its genuineness was not admitted."
The Supreme Court in case titled Govindaraju @ Govinda v. State by Sriramapuram P.S., AIR 2012 SC 1292 laid down that:
"42. The High Court has also observed that "PW-1 noticed when victim was being chased by assailants. This suggests that there must have been something else earlier to that event, some injuries might have been caused to the victim. On the other hand, it indicates that victim was aware of some danger to his life at the hands of the assailants. Therefore, he was running away from them but the assailants were chasing him holding the weapons in their hands". The High Court, therefore, convicted the appellant on the presumption that he must have stabbed him. It is a settled canon of appreciation of evidence that a RC 06/86 CBI Vs. Rakesh Kumar Jain Page 29 of 42 presumption cannot be raised against the accused either of fact or in evidence. Equally true is the rule that evidence must be read as it is available on record. It was for PW-1 to explain and categorically state whether the victim had suffered any injuries earlier or not because both, the accused and the victim, were within the sight of PW-1 and the former were chasing the latter."
In another case titled Banarsi Dass v. State of Haryana, 2010 (3) JCC 1842, the Apex Court laid down the same proposition of law that:
"10. It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard. So far as it satisfies the essentials of a complete chain duly supported by appropriate evidence."
34. After hearing the arguments and going through the record so far as the legal principle that merely exhibiting the document does not mean that it stands proved is a well settled principal of law and there cannot be any dispute about the same. There is also no dispute about the legal principal established that onus is solely on the prosecution to establish the guilt of the accused beyond reasonable doubt. In the light of the same it has to be seen whether in the present case prosecution has been able to prove the guilt of the accused beyond reasonable doubt.
35. So far as the contention with respect to the admissibility of testimony of PW-9 is concerned the law is very clear that section 246 sub-section (5) Cr.PC give rights to cross-examination of the witnesses to the accused after framing of charge provided the RC 06/86 CBI Vs. Rakesh Kumar Jain Page 30 of 42 accused exercised such right. In this case summons was sent to the witness PW-9 to call that witness but the witness could not be served. PW-12 has been examined, who deposed that he went to the address of Sunder Rajan, there he found one Neeraj Tyagi who was tenant of Sh. R.K. Sharma he talked with Sh. R.K. Sharma who told that Sunder Rajan sold this house to him and his present whereabouts are not known to him. He proved his report as Ex.PW12/B. So far as section 246 sub-section 5 is concerned it is for the accused to show his willingness that he want to cross- examine this witness and only thereafter the witness has to be called in this case no such willingness or wish of the accused is brought on record, despite that the court called the witness but he could not be traced. Under the circumstances in my opinion as the witness was not traceable, therefore, his testimony still can be relied upon and the documents Ex.PW9/A can be looked into.
36. So far as the contention that sanction Ex.PW9/A was not accorded in accordance with law. PW9 has proved the order that it was signed on behalf of Govt. of India and specifically deposed by this witness that in this case all the aspects must have been examined before according sanction for prosecution and it was also examined whether Central Government was authorised to sanction prosecution. He was working in the Ministry of Home Affairs, Govt. of India and the material for examination was also placed before Govt. of India and it was not placed before him. Therefore, no such inference can be drawn as submitted by the Ld. Counsel that it was PW-9 only who has given the prosecution sanction and the material was not placed before the competent authority.
37. Defence has also raised the issue that in this case after the FIR was registered, thereafter, the report under section 173 Cr.PC should have been filed instead of following the procedure in a RC 06/86 CBI Vs. Rakesh Kumar Jain Page 31 of 42 complaint case. I fully agree on this point with the learned counsel but there is nothing on record that by following this procedure any prejudice is caused to the accused. It also does not affect the merits of the case. In my opinion this contention is of no help to the accused.
38. So far as the contention that section 5(2) and section 5(3) are not made out. I found that for making out a case under section 5(2) the first requirement is voluntarily receiving any secret official code or password or any sketch, movable article or note, documents or information knowing or having reasonable ground to believe at the time of receiving that such communication, document etc. is in contravention of this Act.
39. Contention of the Ld. Defence Counsel is that there is no evidence brought on record that accused has received this document as possessing is something different from receiving. Section 5 (2) only specify of receiving and at the time of receiving the person receiving must have reasonable ground to believe that document which he is receiving is in contravention of this Act. Even otherwise the word document appearing in sub-section 5 is not attached with the secret and therefore it is not necessary that the documents must be a secret one but the documents must be one the receiving of which is in contravention of this Act. But I do not agree with the contention of Ld. Counsel as here the wording of sub-section (2) shows that the documents must be one which is either secret official code, or password or any sketch of may be a document which may be or may not be a secret but such documents must be such receiving of which is in contravention of the Act. In the present case as has come in the evidence this document relates to the policy matter for augmenting the availability of the Vanaspati oil so that there is no deficiency of edible oils in the market. From this it is clear that this document is RC 06/86 CBI Vs. Rakesh Kumar Jain Page 32 of 42 related to the economic policy of the country and the unauthorized disclosure of the same is going to affect the import, export policy and consequently economy of the country and therefore detrimental to the interest of the country. Similarly, so far as sub- section (3) is concerned it makes the possession of the document culpable if the document in possession or control is sketch, plan, mobile articles etc, etc. which relates to munition of war. In the present case and in the changing circumstances where wars are no more fought in a traditional way but now the enemy is destroyed by destroying the economy of the enemy country and thereby making the country week. Under the circumstances any document which relates to any economic policy which will not only affect the import and export of the country but also availability of essential commodities in the country becomes an important tool in the hand of the enemy country and thus in my opinion fall within the ambit of sub-section (3) of Section 5 of the Act keeping in view the changing political, economic scenario. Therefore, I do not find any merits in the contentions of Ld. Counsel that sub-section (3) & (2) of section 5 are not attracted.
40. Ld. Defence counsel has also taken the plea that document has been marked as secret without following the guidelines as provided in the Departmental Security Instructions Chapter-1 according to secret classification as provided in 2.1 to 2.4 which reads as under:
SECURITY CLASSIFICATIONS The classifications and their Definitions. 2.1 There shall be following four types of security classifications:-
"Top Secret" shall be applied to information and material the unauthorised disclosure of which could be expected to cause exceptionally grave damage to the national security or national RC 06/86 CBI Vs. Rakesh Kumar Jain Page 33 of 42 interest.
Note: This category is reserved for the Nation's closest secrets and is to be used with great reserve.
"Secret" shall be applied to information and material, the unathorised disclosure of which could be expected to cause serious damage to the national security or national interests or cause serious embarrassment to the Government in its functioning.
Note: This classification should be used for highly important matters and is the highest classification normally used.
"Confidential" shall be applied to information and material, the unauthorised disclosure of which could be expected to cause damage to the national security or would be prejudicial to the national interests or would embarrass the Government in its functioning.
Note: Most matters will, on proper analysis be classified no higher than "Confidential".
"Restricted" shall be applied to information and material, which is essentially meant for official use only and which should not be published or communicated to any one except for official purpose.
Officers authorised to classify.
2.2 To ensure proper classification of documents, only an officer of and above the rank of a Director/Deputy Secretary in the Government of India would have the authority to classify information originally as "Top Secret", and only an officer of and above the rank of Under Secretary will have the authority to classify information originally as "Secret". "Confidential"
classification could be given by an officer of and above the rank of a Section Officer.
The authority to classify information originally as "Top RC 06/86 CBI Vs. Rakesh Kumar Jain Page 34 of 42 Secret", "Secret" and "Confidential" can be delegated to other officials, but in the case of "Top Secret" and "Secret" classification only a Secretary to Government or the Head of an Agency or Department would be competent to delegate such authority. Delegation of original classification authority must be limited to the minimum required and should depend on a demonstrable and continuing need for the designated subordinate officials to exercise this authority. The delegation should be in writing and the order should identify the official to whom the authority has been delegated by name or designation. In exceptional cases, an employee who does not have the authority to originate a document of a particular classification may do so, but this will have to be got ratified at the earliest opportunity by the authority having the undelegated power to classify information originally with that classification.
Officers to whom the power to classify documents has been delegated will also have the authority to handle and keep in custody such classified documents.
Uprading and Downgrading 2.3 Documents once classified as "Top Secret", "Secret", "Confidential" and "Restricted" should remain so classified as long as required. A recipient officer of appropriate rank in a Department or Ministry may upgrade the security classification of a document received from outside, but this raised classification will be limited only to the Ministry or Department. He will, however, have no authority to downgrade the security classification of a document received from outside, but this raised classification will be limited only to the Ministry or Department. He will, however, have no authority to downgrade the security classification of a document received, without the concurrence of the originator. Within the same department, an officer superior to the originator would have RC 06/86 CBI Vs. Rakesh Kumar Jain Page 35 of 42 the authority to downgrade or upgrade the classification. 2.4 It would be useful for Ministries and Departments to prepare suitable guidelines to ensure proper security classification of information. Provisions has also to be made for a systematic review for classification and declassification of classified information - both in a routine manner or through the establishment of special procedures. In the later case, it would be advisable to involve the intelligence Bureau for determining the kind of special procedures required; this should invariably be the case where the matters pertains to intelligence activities or intelligence sources or methods.
41. These instructions clearly provide that "Secret" shall be applied to employee and material the unauthorized disclosure of which is excepted to cause serious damage to National Security or National interest or cause serious embarrassment to the government in its functioning. The note further provides that this classification should be used for highly important matters and is the highest classifications normally used. Keeping in view these provisions in my opinion the documents is to be taken as secret if unauthorized disclosure of the same is excepted to cause serious damage to National Security or National interest or cause serious embarrassment to the government in its functioning. As discussed above where the global scenario is changing and economy is becoming more important which is having impact on the National policy, any document having long lasting affect on the import export policy of the country consequently the economy is an important document and disclosure of the same would damage the National interest. In the light of the above the document Ex PW8/B is one unauthorized disclosure of which was going to have an affect on the national parts is going to have impact on the National policy regarding import of vanaspati oil was rightly mentioned as RC 06/86 CBI Vs. Rakesh Kumar Jain Page 36 of 42 secret by PW-8. It has come in the evidence of PW-10 that accused has made one representation dt. 24.04.1985 and it was also accompanied by the letter Ex.PW10/B i.e. copy of secret letter. Ld. Counsel has submitted that there is no evidence that this letter was the part of representation. But in view of clear testimony of PW-10 I do not find any merit in the contention of the Ld. Defence Counsel that also when the accused in his statement u/s 313 Cr.P.C also admitted that he sent the representation along with that he also sent the letter Ex.PW10/B i.e. copy secret document.
42. As discussed above this document was a secret document which he has sent along with his representation Ex.PW10/A. In view of above discussion as he has sent this letter which is undoubtedly established that he was in possession of this document i.e. why he was able to send the copy of the same along with his representation Ex.PW10/A and for that purpose he must have received this document before sending it or forwarding it to the government along with his representation. Keeping in view the above discussion in my opinion accused has acted in contravention of provisions of section 5(2) and 5(3) read with section 5(4) of the Officials Secret Act, 1923. I accordingly, held him guilty and convict him. Let he be heard separately on the point of sentence on 07.09.2015.
Announced in the open court today on 31.08.2015 (VIRENDER KUMAR BANSAL) ASJ/ FTC (WEST) TIS HAZARI, DELHI RC 06/86 CBI Vs. Rakesh Kumar Jain Page 37 of 42 31.08.2015 Present: Sh. R.C. Rao, Sr. PP for CBI.
Accused on bail.
Sh. Praveen Kapoor and Sh. N.K. Sharma, Ld. Counsel for accused.
SI Rakesh Kumar, Pervi officer is also present. Sh. Satya Nand, Ld. Counsel for Union of India. Vide separate Judgment announced today accused is convicted for the offence u/s 5(3), 5(2) read with section 5(4) of the Officials Secret Act, 1923.
Now come up for hearing arguments on the point of sentence on 07.09.2015.
(VIRENDER KUMAR BANSAL) ASJ/ FTC (WEST) TIS HAZARI, DELHI RC 06/86 CBI Vs. Rakesh Kumar Jain Page 38 of 42 IN THE COURT OF ASJ/FTC (eCOURT)/WEST, TIS HAZARI COURTS : DELHI SESSIONS CASE No. :46/09 ID No. 02401R0005161990 FIR No. : 06/86 U/s : 5(4), 5(2) & 5(3) O.S. ACT P.S. : CBI/ACU-I/ND CBI Vs. Rakesh Kumar Jain S/o Sh. J.R. Jain R/o H.No.26, Friends Colony (West), New Delhi, Joint Managing Director, M/s. Jain Shudh Vanaspati Ltd.
101, Akashdeep Building, 26A, Barakhambha Road, New Delhi.
07.09.2015 ORDER ON SENTENCE:
Present: Sh. R.C. Rao, Special PP for CBI.
Sh. N.K. Sharma and Sh. Praveen Kapoor, Ld.
Counsel for convict.
Convict in person.
Heard on the point of quantum of sentence.
Ld. Counsel for convict submits that incident pertains RC 06/86 CBI Vs. Rakesh Kumar Jain Page 39 of 42 to year 1984. the FIR was registered in the year 1986. Since 1986 till date convict is regularly appearing before the court i.e. for the last 29 years. He never misused the liberty of bail during the trial. He was only 27 years of age when this long battle started.
He is now 57 years of age having clean antecedents, never been convicted before though he is involved in a criminal case which is pending trial. It is prayed that keeping in view long trial, his clean antecedents, he be released on probation.
Ld. Special PP for CBI opposed the submissions and submitted that convict had been held guilty for a serious offence i.e. under the provisions of Official Secrets Act, 1923. He submitted that as the document which has been sent by him along with his representation was a secret document which had affect on the security as well as economy of the country. Therefore no leniency be shown and maximum punishment be awarded.
Keeping in view the submissions and the fact that maximum punishment which can be awarded for the offence for which convict has been held guilty is 3 years or fine or with both, meaning thereby that only fine can also be imposed. Keeping in view this legislature forming with their own wisdom decided in 1923 the punishment can also be fine only for the offence for which convict has been held guilty and at the same time that a period of more than 29 years have passed when this long trial RC 06/86 CBI Vs. Rakesh Kumar Jain Page 40 of 42 started coupled with the fact that he is having clean antecedents and is not a previous convict. I find it is a fit case where he can be released on probation. Accordingly, convict is directed to be release on probation of one year on furnishing bond to maintain peace and good behaviour for a period of 1 year with one surety in the sum of Rs.10,000/- from today onwards and on breach of bond he shall produce himself before this court to hear the sentence in this case. Report from Probationary officer be called after every 3 months.
Copy of order be given dasti to convict as well as CBI free of cost.
(VIRENDER KUMAR BANSAL)
ASJ/ FTC (WEST)
TIS HAZARI, DELHI
07.09.2015
RC 06/86 CBI Vs. Rakesh Kumar Jain Page 41 of 42
FIR No. : 06/86
U/s : 5(4), 5(2) & 5(3) O.S. ACT
P.S. : CBI/ACU-I/ND
07.09.2015
Present: Sh. R.C. Rao, Special PP for CBI.
Convict is present with Ld. Counsel Sh. N.K. Sharma and Sh. Praveen Kapoor.
Vide separate order on sentence passed today convict is sentenced accordingly. Personal Bond in the sum of Rs.10,000/-
with one surety of like amount for keeping peace and good behavior furnished and accepted.
File be consigned to record room.
(VIRENDER KUMAR BANSAL) ASJ/ FTC (WEST) TIS HAZARI, DELHI 07.09.2015 RC 06/86 CBI Vs. Rakesh Kumar Jain Page 42 of 42