Delhi High Court
Ashok Chawla & Ors. vs C.B.I. on 8 August, 2019
Equivalent citations: AIRONLINE 2019 DEL 1306, 2019 (6) ADR 466 (2019) 263 DLT 282, (2019) 263 DLT 282
Author: R.K.Gauba
Bench: R.K.Gauba
$~
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: July 12, 2019
Decided on: August 08, 2019
+ CRL.M.C. 4120/2016
ASHOK CHAWLA & ORS. ..... Petitioners
Through: Mr. Kunal Malhotra, Advocate with
Ms. Palak Kharbanda, & Mr. Vivek,
Advocates.
versus
C.B.I. ..... Respondent
Through: Mr. Mridul Jain, Special P.P. with
Mr. K.P. Sharma, Deputy SP, CBI.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDG MENT
1. Some confusion prevails concerning the procedure governing
the criminal cases involving accusations of offences under the Official
Secrets Act, 1923 ("the Official Secrets Act"), certain notifications
issued by the central government, some observations in an earlier
judgment of a single bench of this court, and a seemingly
unreasonable posture adopted by Central Bureau of Investigation
(CBI) in the case from which the present petition arises, having
possibly added to the causes. The petition at hand presents the
opportunity for such confusion to be dispelled and clarity in the
approach expected to be adopted brought about such that cases of this
nature do not suffer unnecessary hiccups or delay.
Crl.MC 4120/2016 Page 1 of 42
2. The background facts may be noted at the outset albeit
restricted to the extent necessary. In the wake of searches statedly
carried out in a premises located in Defence Colony, New Delhi on
31.08.1995 and 01.09.1995, by the officials of income tax department,
recovery of certain classified documents, described as secret and
confidential, of Ministry of Defence in the Govt. of India was
reported, this resulting in first information report (FIR) being
registered by CBI on 30.08.1996 vide RC No.6(S)/1996, the
investigation having been taken up into the acts of commission and
omission prima facie constituting offences punishable under sections 3
and 5 of the Official Secrets Act and section 120-B of the Indian Penal
Code, 1860 (IPC). On 21.11.2000, Inspector Ram Chander Garvan of
CBI presented a criminal complaint under section 13 of the Official
Secrets Act in the court of Chief Metropolitan Magistrate (CMM)
Delhi, on the strength, inter alia, of authorization by the Central
Government vide order No.11/17017/18/2000-ISUS (D-11), dated
12.09.2000, seeking prosecution of the petitioners for having
committed offences punishable under sections 120-B IPC read with
section 3(1)(c) of the Official Secrets Act and for substantive offence
under section 3(1)(c) of the Official Secrets Act. The complaint
referred to, and relied upon, evidence that had been gathered by the
CBI during investigation into the above mentioned FIR, documents
relating to which were presented with the complaint, the list of
witnesses also having been prepared and presented in such light.
Crl.MC 4120/2016 Page 2 of 42
3. The CMM, Delhi passed the following order on the said
complaint:-
―21.11.00
Pr. Sh. Rajpal Singh, Spl.P.P. for CBI with Insp. Ram
Chander Garvan I.O.
Complaint under section 13 of Official Secret Act 1923
presented.
It be checked and registered.
Documents also filed along with the complaint. Heard.
Perused. I take cognizance of the offence under section
3/5 Official Secret Act R/w section 120B IPC. Accused
persons be summoned for 2/3/2001.
Sd/-
C.M.M. 21.11.00‖
4. On 08.03.2001, the petitioners appeared before the CMM, Delhi
with counsel taking preliminary objection that the complaint had been
presented by an officer who was not authorized in law to present the
same. This objection was repelled by the CMM who noted that the
complainant (public servant) had been duly authorized by the Central
Government, reference being made to the FIR that had been registered
by CBI on 30.08.1996, directions being given to the concerned clerk
(Ahlmad) to trace the FIR and place the same on record, the matter
having been adjourned because the concerned Public Prosecutor for
CBI was not available, the application for bail requiring consideration.
On 04.05.2001, the ahlmad of the concerned court gave a report
placing on record copy of the FIR that had been received earlier, also
stating that no report (of investigation) under section 173 of the Code
Crl.MC 4120/2016 Page 3 of 42
of Criminal Procedure, 1973 (Cr.P.C.) had been filed. On 20.09.2001,
the petitioners were admitted to bail, the CMM, Delhi opting to
enforce the trial procedure applicable to warrant cases instituted
otherwise than on police report (generally known as "complaint
cases") requiring pre-charge evidence to be adduced - presumably in
terms of section 244 Cr.P.C. It is apposite to take note of the detailed
order passed on 20.09.2001 by the CMM, Delhi in extenso:-
―1. Complaint under section 13 Official Secrets
Act 1923 was filed by Insp. Ram Chander Gravan,
Inspector of Police, C.B.I. New Delhi against
Ashok Kumar Chawla and Ms. Vijaya Rajgopal.
2. On filing of complaint cognizance for the offence
under section 3/5 Official Secrets Act 1923 r/w
section 120B IPC was taken and the accused were
summoned to appear in Court.
3. On appearance the counsel for the accused
pointed out that in fact an RC No.6(S)/96 New
Delhi was registered with the C.B.I. on 30.08.1996.
As per the procedure laid down under section 210
Cr.P.C. if investigation in respect of the same
offence is made by the investigating authority on
the basis of an FIR then the Police Reprot and the
complaint case are to be amalgamated.
4. It has now come to surface that in fact no report
u/s 173 in terms of Cr.P.C. has been prepared.
5. Section 13 of the Official Secrets Act lays down
that cognizance of any offence under this Act is
only to be taken upon a complaint made by the
order of or under authority by the appropriate
Government or some officer empowered by the
appropriate Government under this behalf. The
procedure to be followed in this case is laid down
in Chapter 15 of the Cr.P.C. The present complaint
Crl.MC 4120/2016 Page 4 of 42
has been filed in terms of section 200 Cr.P.C.
Process has been issued u/s 204 Cr.P.C. The
accused have put in their appearance after supply
of copies in terms of section 207 Cr.P.C. The
prosecution is first to lead pre-charge evidence as
it is a warrant trial case. Let prosecution lead pre-
charge evidence on 20.11.01 and accused are
directed to file their bail bonds in sum of
Rs.20,000/- with surety in like amount.‖
5. It is stated that by proceedings recorded on 05.12.2006 the case
was committed to the court of sessions. It appears that pre-charge
evidence was adduced before the court of sessions on which basis, by
order dated 12.10.2012, charges were framed against the petitioners
for offences under sections 3 and 5 of the Official Secrets Act read
with section 120-B IPC.
6. When the case had reached post-charge evidence stage of the
trial process, the petitioners moved an application on 22.07.2016
praying for stay of proceedings referring in this context to the
provision contained in section 210 Cr.P.C. The prime contention urged
was that the CMM had erred because she should have stayed the
proceedings on the complaint under section 210 (1) Cr.P.C. and called
for the final report of investigation under section 173 Cr.P.C. into the
above mentioned FIR. It was pointed out that no such report had been
submitted by the investigating agency till the date of such application.
Reliance was placed, inter alia, on decisions of this court reported as
Asmita Agarwal vs. The Enforcement Directorate & Ors. (2001) ILR 2
Delhi 643 and A.K. Jajodia vs. The State (Through CBI), 2009 SCC
OnLine Del 1623: ILR (Supp-2) 25 Delhi. The trial Judge, by his order
Crl.MC 4120/2016 Page 5 of 42
dated 30.09.2016, repelled the said objection referring in this context
to the afore-quoted order dated 20.09.2001 of the CMM, also
accepting the plea of CBI (prosecution) that there was no illegality in
the order of cognizance and issuance of process on the complaint
presented under section 13 of the Official Secrets Act by an officer
duly empowered by the Central Government this, in the opinion of the
trial Judge, being in accord with law.
7. The order dated 30.09.2016 whereby the application of the
petitioners seeking stay of the prosecution under section 210 Cr.P.C.
was rejected was challenged by the petition at hand invoking inherent
power of this court under section 482 Cr.P.C., the plea being that the
procedure adopted in the criminal case under the Official Secrets Act
suffers from incurable illegality. A co-ordinate bench of this court
issued notice by order dated 23.11.2016 directing that the outcome of
the trial shall be subject to the decision on this petition.
8. The respondent CBI resists this challenge arguing that the view
taken by the trial court is appropriate, the order of cognizance and
issuance of process being lawful, there being no reason why the
provision contained in section 210 Cr.P.C. would get attracted.
9. The submissions on both sides were summarized in the order
dated 01.08.2018 thus:-
―In the prosecution pending in the court of
Sessions against the petitioners on the charge of offences
under Sections 3 and 5 of Officials Secret Act, 1923 read
with Section 120 B of Indian Penal Code, 1860 (IPC),
Crl.MC 4120/2016 Page 6 of 42
propriety of the procedure leading to cognizance being
taken is questioned by the petition at hand.
Concededly, cognizance was taken on a complaint
filed by an authorised officer of the Central Government
in terms of Section 13 of Officials Secret Act, 1923.
Concededly again, at that stage no report under Section
173 of the Code of Criminal Procedure (Cr.P.C.) had
been prepared or submitted in the court in relation to the
FIR No. RC 6 (S)/1996 which had been registered by
Central Bureau of Investigation qua the crimes
respecting which the petitioners face the prosecution till
the date cognizance was taken i.e. 20.09.2001.
The core issue raised by the petitioners is that in
view of the inhibition of Section 210 Cr.P.C., the
investigation being then pending, no cognizance on the
criminal complaint could have been taken, such order
being vitiated rendering the subsequent proceedings non-
est. The petitioners rely on A.K. Jajodia vs. The State
(through CBI) 2009 SCC Online Del 1623.
Per contra, the respondent CBI argues on the
strength of judgments reported as Aniruddha Bahal vs.
Central Bureau of Investigation 210 (2014) DLT 292;
Jeewan Kumar Raut & Anr. Vs. CBI AIR 2009 SC 2763
and M/s Viniyoga International, New Delhi & Anr. Vs.
The State 1985 CriLJ 761 that the procedure adopted by
the court of cognizance cannot be questioned.
Be listed for final hearing on 15th October, 2018.
The interim order to continue.‖
10. The matter was heard in part on 13.11.2018. The CBI took the
position that there is no obligation on its part to file the report of
investigation under section 173 Cr.P.C. in a case where such report
cannot result in cognizance being taken of the offences which are its
subject matter, the facts that emerged at that stage and the submissions
made on either side having been recorded as under:-
Crl.MC 4120/2016 Page 7 of 42
―Heard for sometime.
The criminal complaint under Section 13 of the
Official Secrets Act, 1923 on which the Chief
Metropolitan Magistrate took cognizance by her order
dated 21.11.2000 itself indicated that the first information
report - RC 6(S)-96 - had been registered by Central
Bureau of Investigation. The copy of the said FIR
registered on 30.08.1996 has been submitted on record
by the petitioner on 05.01.2018. It appears from the
submissions of both sides that no report under Section
173 Cr. PC based on the result of investigative steps
taken on the said FIR has been submitted till date.
Reference is made to practice where complaints under
Section 13 of the Official Secrets Act, 1923 are presented
for cognizance to be taken thereupon alongwith evidence
collected during the investigation of FIR correspondingly
registered, such material being presented in the form of
final report of investigation under Section 173 Cr. PC.
There is no explanation offered as at present for a
departure to have been made from such practice. The
CBI is directed to submit its explanation vis-a-vis the
status of the investigation into the aforementioned FIR
and also reasons for non-filing of the report under
Section 173 Cr.PC till date.
Be listed on 05.02.2019.
The trial court record shall be presently returned.‖
11. On 07.05.2019 the Special Public Prosecutor for CBI submitted
a report of the Deputy Superintendent of Police (DSP) informing, inter
alia, that report under section 173 Cr.P.C. in the afore mentioned FIR
had been presented on 03.05.2019 before the trial court. The
submissions made in the context of the said report were noted in the
proceedings recorded on 07.05.2019 as under:-
Crl.MC 4120/2016 Page 8 of 42
―A report has been submitted by learned Special
Public Prosecutor for CBI informing that a report under
Section 173 of the Code of Criminal Procedure, 1973
(Cr. PC) was submitted on 03.05.2019 before the
concerned court - court of special judge - where the
criminal case arising out of the complaint under Official
Secrets Act is pending trial, with clarification that it has
been submitted ―only for the purpose of placing it on
record‖, the said court having listed it ―for
consideration‖ on 30.05.2019, copy having been supplied
to the accused (i.e. the petitioners). The grievance urged
by the CBI in such context, however, is that inspite of
being clarified and explained to the contrary, the special
judge in his proceedings of 03.05.2019 has chosen to
describe the said report as ―charge-sheet‖.
The counsel for the petitioners submits that
notwithstanding submission of the report under Section
173 Cr. PC by the CBI on 03.05.2019, his argument that
the proceedings were vitiated on account of breach (as
alleged by him) of Section 210 Cr. PC still subsists.‖
12. The petitioners place reliance primarily on the provision
contained in section 210 Cr.P.C., and case law including two decisions
of the Supreme Court reported as Rosy & Anr. vs. State of Kerala &
Ors., (2000) 2 SCC 230 and Moti Lal vs. Central Bureau of
Investigation & Ors., (2002) 4 SCC 713; two decisions of this court
reported as Asmita Agarwal vs. The Enforcement Directorate & Ors.
(2001) ILR 2 Delhi 643 and A.K. Jajodia vs. The State (Through CBI),
2009 SCC OnLine Del 1623, ILR (Supp-2) 25 Delhi; and ruling of a
single judge of High Court of Punjab & Haryana reported as Savesa
Sidhu vs. Harleen Sidhu & Anr., 2011 (2) RCR (Criminal) 442.
Crl.MC 4120/2016 Page 9 of 42
13. The prime submission of the petitioners is that by virtue of
section 13 of the Official Secrets Act, a criminal case involving charge
of offences under the said law cannot result in cognizance being
lawfully taken except upon a complaint and, in this view, inhibition in
section 210 Cr.P.C. must mandatorily be applied, it being
impermissible for cognizance to be taken at any stage anterior to
submission of a police report on the investigation into the FIR that
may have been correspondingly registered. It is the argument of the
petitioners that since the report under section 173 Cr.P.C. has been
filed only on 03.05.2019, all proceedings anterior thereto suffer from
gross illegality and consequently are vitiated, to be treated as non est.
Though this contention was not part of the submissions made before
the trial court, nor taken in the averments in the petition, it is also the
argument of the petitioners that since a criminal complaint had been
presented before the CMM on 21.11.2000, it was incumbent upon her
to first hold an inquiry in accordance with the procedure envisaged in
sections 200 and 202 Cr.P.C. before cognizance could be lawfully
taken on said complaint. It is an added argument of the petitioners
that since the case was eventually committed to the court of sessions,
taking of cognizance on the complaint without the inquiry under
sections 200 and 202 Cr.P.C. renders the order of committal to the
court of sessions bad particularly in absence of any pre-charge
evidence having been adduced in the inquiry leading to the committal
order.
Crl.MC 4120/2016 Page 10 of 42
14. The learned Special Public Prosecutor for the respondent/CBI,
on the other hand, argued that the Official Secrets Act involves a
special procedure in terms of section 13 wherein cognizance can be
taken only upon a complaint of an officer especially empowered by
the appropriate government and, therefore, section 210 Cr.P.C. has no
relevance. It was submitted that on compliant of a public servant,
empowered under section 13 of the Official Secrets Act, no such
inquiry as envisaged in sections 200 and 202 Cr.P.C. is required to be
held, there also being no obligation on the court of Magistrate to
record pre-charge evidence prior to committal of the case to court of
sessions. Reliance is placed by CBI on a decision of the Supreme
Court reported as Jeewan Kumar Raut & Anr. Vs. C.B.I., AIR 2009 SC
2763 besides two decisions of this court reported as M/s. Viniyoga
International New Delhi & Anr. vs. The State, 1985 CriLJ 761 and
Aniruddha Bahal vs. Central Bureau of Investigation, 210 (2014) DLT
292.
15. The learned counsel for the petitioners referred, and rightly so,
to the provision contained in section 4 Cr.P.C. which reads thus:-
―4. Trial of offences under the Indian Penal Code and
other laws.
(1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt
with according to the same provisions, but subject to any
enactment for the time being in force regulating the
Crl.MC 4120/2016 Page 11 of 42
manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.‖
16. It is trite that the Code of Criminal Procedure, 1973 regulates
the procedure for the investigation, inquiry or trial not only of the IPC
offences but also of special law offences but, in the case of latter (the
special law offences) application of Cr.P.C. provisions is subject to
specific provisions (if any), of such special law relating to, inter alia,
the procedure for investigation, inquiry, trial or otherwise dealing with
offence thereby created. To put it simply, if a special law creates any
offence, it may create not only a special forum for purposes of its trial
but also a special procedure for investigation thereinto, or the
authorities vested with the power or jurisdiction to deal with such
processes and, further, the nature of such special law offences
(cognizable or non-cognizable, bailable or non-bailable, etc.).
17. There can be no quarrel with the proposition that the Official
Secrets Act is a special enactment governing the investigation, inquiry
or trial of special offences which are not included in the general
substantive penal law contained in IPC. The Code of Criminal
Procedure, 1973 contains detailed provisions relating, inter alia, not
only to the manner in which the investigating agencies are to take note
of the offences but also as to how they are expected to respond, upon
receipt of information in such regard, equipping them with certain
investigative powers including on the subjects such as arrest, search,
seizure, etc.
Crl.MC 4120/2016 Page 12 of 42
18. The Official Secrets Act came on the statute book in 1923 when
the criminal process was governed by the Code of Criminal Procedure,
1898 ("old Cr.P.C."). The said Criminal Procedure Code has since
been replaced by the Code of Criminal Procedure, 1973 ("new
Cr.P.C."). In the context of section 4(2) Cr.P.C., six provisions
(sections 8,11,12,13,14 and 15) of the Official Secrets Act are relevant
inasmuch as the general criminal procedure envisaged in the new
Cr.P.C. is to be read as modified by them. Section 8 creates a duty on
the part of the persons specified in the matter of ―giving information
as to commission of offence‖, this being relatable to section 154
Cr.P.C., making failure to do so a penal offence. Section 11 creates a
special procedure in the context of "search warrants". Section 12
makes the provision (on tender of pardon to accomplice) contained in
section 337 of old Cr.P.C. (corresponding to section 306 of new
Cr.P.C.) applicable to certain prosecutions under the special law.
Section 14 creates an exception to the general rule of trial being held
in open court by permitting ―exclusion of public from proceedings‖.
Section 15 applies to offences by companies providing for vicarious
criminal liability.
19. Section 13 of the Official Secrets Act is at the core of the
controversy that is raised by the petitioners. It reads thus:-
―13. Restriction on trial of offences.--
(1) No court (other than that of a Magistrate of the first
class specially empowered in this behalf by
the Appropriate Government) which is inferior to that of
a District or Presidency Magistrate, shall try any offence
under this Act.
Crl.MC 4120/2016 Page 13 of 42
(2) If any person under trial before a Magistrate for an
offence under this Act at any time before a charge is
framed, claims to be tried by the Court of Sessions, the
Magistrate shall, if he does not discharge the accused,
commit the case for trial by that court, notwithstanding
that it is not a case exclusively triable by that court.
(3) 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:
(4) For the purposes of the trial of a person for an
offence under this Act, the offence may be deemed to have
been committed either at the place in which the same
actually was committed or at any place in India in which
the offender may be found.
(5) In this section, the appropriate Government means--
(a) in relation to any offences under section 5 not
connected with a prohibited place or with a foreign
power, the State Government; and
(b) in relation to any other offence, the Central
Government.
20. For completion of narration, it is essential to note here that the
central government, in exercise of the powers conferred by sub-section
(1) of Section 13 of the Official Secrets Act had issued a notification
on 06.03.1998 vide GSR No. 126 (E) empowering the Chief
Metropolitan Magistrate, Delhi to try the offences punishable under
the Official Secrets Act. The said notification dated 06.03.1998,
however, was rescinded by the central government by notification
dated 21.06.2006 vide GSR No.373 (E), though clarifying that ―such
rescission shall not affect anything done or omitted to be done under
Crl.MC 4120/2016 Page 14 of 42
the said Notification before such rescission‖. It may be noted here that
in the present case the complaint was presented before the CMM on
20.09.2001 at the time when notification dated 06.03.1998 was in
vogue and prior to its rescission vide notification dated 21.06.2006.
Further, it is an admitted position of the petitioners that the case
against them was committed to the court of sessions on 05.12.2006, no
arguments having been raised in such regard except breach of the
perceived necessity of recording pre-charge evidence prior to
committal.
21. It may not be wholly correct to say that the Official Secrets Act
is a complete code in itself. By virtue, inter alia, of section 4(2)
Cr.P.C., the general procedural law contained in the Code of Criminal
Procedure, 1973 regulates the investigation, inquiry or trial of offence
even under this special law, the same, however, to be read and applied
as modified by the special law to the extent noted above. To test and
clarify this further, it may be noted that offence under section 3(1)(c)
(penalty for spying) of the Official Secrets Act, as is alleged against
the petitioners, if the documents in question relate to such subjects as
concern work of defence, arsenal, naval, military or air force
establishment, etc., if proved, may attract the punishment of
imprisonment for a term which may extend to fourteen years and in
any other case imprisonment for a term which may extend to three
years. The Official Secrets Act, by section 13(3), places restrictions
on cognizance being taken but does not specify the court of
cognizance. Section 13(1) only denotes that a criminal court other than
Crl.MC 4120/2016 Page 15 of 42
those specified will not be competent to try offences under this law.
Generally speaking, the trial of an offence under the Official Secrets
Act may be held in the court of a magistrate (a metropolitan magistrate
in Delhi). The accused, however, has been given the option to claim
trial by a court of sessions. In absence of these provisions, in terms of
second part of the first schedule to Cr.P.C. an offence attracting
punishment of imprisonment that may be extend to fourteen years -
section 3(1)(c) - would ordinarily be triable by the court of sessions.
Clearly, by virtue of section 4(2) Cr.P.C. a special dispensation
prevails for purposes of trials under Official Secrets Act, 1923.
22. The fact, however, remains that the court of CMM was the
appropriate court to be approached by the officer empowered by the
central government for presenting a complaint under section 13 of the
Official Secrets Act on 21.11.2000. While conceding to the
correctness of this position, however, it is the procedure applied by the
CMM which is brought in question by the petitioners.
23. The provision contained in section 190 Cr.P.C. empowers the
court of Magistrate, with some restrictions, to "take cognizance of an
offence" (a) upon receiving a complaint of facts which constitute such
offence; (b) upon a police report of such facts; or (c) upon information
received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.
24. The law classifies the offences broadly into two categories, i.e.
cognizable and non-cognizable. The procedure to be followed and
responsibilities that are placed on the police, in the context of
Crl.MC 4120/2016 Page 16 of 42
cognizable offences generally begins with what is elaborately
provided in the twelfth chapter of Cr.P.C. (―information to the police
and their powers to investigate‖). If commission of a cognizable
offence is brought to the notice of an officer in-charge of the police
station, it is his statutory duty, in terms of sections 154 Cr.P.C.
(registration of FIR), to have the information reduced to writing and
thereafter investigation thereinto taken up.
25. The scheme of the twelfth chapter makes is abundantly clear
that every investigation so undertaken would eventually result in a
report in the prescribed form being submitted before the magistrate
empowered to take cognizance of the offence which is its subject
matter. Such report, submission of such report, its contents and
accompaniments, and what is permissible to do in its wake, are
provided for at length in section 173 Cr.P.C. It is well settled that if a
person has been arrested in the course of investigation, after
registration of the FIR under section 154 Cr.P.C. but the evidence is
found to be deficient in so far as the suspicion of his involvement is
concerned, upon report to that effect being submitted, such arrestee
may be released in terms of section 169 Cr.P.C. On the contrary, if
sufficient evidence has been gathered regarding commission of a
cognizable offence and as to complicity of an individual therein, the
final report of investigation under section 173 Cr.P.C. will be
contemporaneous with such action as is prescribed by section 170
Cr.P.C.
Crl.MC 4120/2016 Page 17 of 42
26. It is trite that a report of investigation under section 173 Cr.P.C.,
in the event of sufficient evidence having been found, may propose
prosecution of an individual on the charge for the offence which has
been committed and in such case the report is generally labelled as
―charge sheet‖. On the other hand, if no evidence has been found to
support the allegations about commission of a cognizable offence, the
final report under section 173 Cr.P.C. may propose cancellation of the
case and such report is commonly known as ―cancellation report‖.
Further, there can be a situation where the police may have found
sufficient evidence showing commission of a cognizable offence but
investigation may not have brought to light sufficient evidence to
charge for such offence to be brought against, or seek prosecution of,
any specific individual. The final report of investigation may thus
request the Magistrate to permit closure, such report generally called
―closure report‖. It is incumbent, however, on the part of the
investigating police to submit the final report of investigation under
section 173 Cr.P.C., regardless of the result of the investigation -
whether it culminates in presentation of a ―charge sheet‖ or a
―cancellation report‖ or a ―closure report‖. Submission of final
report of investigation under section 173 Cr.P.C. is the logical end to
which each case registered (under section 154 Cr.P.C.) by the police
must eventually reach.
27. In this context, it has to be borne in mind that in addition to
registration of the FIR under section 154 Cr.P.C., it is also the
statutory duty of the officer in charge of the police station, who has
Crl.MC 4120/2016 Page 18 of 42
received information about the commission of a cognizable offence, to
simultaneously make a report, inter alia, to the Magistrate empowered
to take cognizance of such an offence, in compliance with section 157
Cr.P.C. The final report of investigation under section 173 Cr.P.C. is
the ―police report‖ referred to in section 190(1)(b) which the
Magistrate so informed awaits.
28. The obligation of the police in respect of a crime of which note
has been taken under section 154 Cr.P.C. is, thus, not complete till the
final report of investigation under section 173 Cr.P.C. has been
presented to the competent Magistrate, action on such report in
accordance with law thereafter being the responsibility of the said
judicial authority.
29. The general power of taking cognizance, as conferred by
section 190 Cr.P.C., also refers to "complaint of facts", or "upon
information received" from other sources or "own knowledge". As is
clear from various provisions of the code of criminal procedure, the
judicial process in cases instituted on a police report (which would be
final report of investigation under section 173 Cr.P.C.) differs from
those applicable to "cases instituted otherwise than on police report"
(refer nineteenth chapter on trial of warrant cases by magistrate).
Section 210 Cr.P.C., which would need to be quoted a little later, in
fact, refers to case instituted otherwise those on a police report as a
"complaint case". The expression "complaint" is defined, by section
2(d), as under:-
Crl.MC 4120/2016 Page 19 of 42
―complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
Explanation.- A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a
complaint; and the police officer by whom such report is
made shall be deemed to be the complainant;‖
30. In contrast, the expression "police report", is defined in section
2(r), thus:-
―police report‖ means a report forwarded by a police
officer to a Magistrate under sub-section (2) of section
173;‖
31. It is clear that the final report of investigation under section 173
Cr.P.C. cannot be treated as a "complaint" and vice-versa.
32. As would also be seen in the context of section 210 Cr.P.C., a
complaint within the meaning of the expression defined in Cr.P.C.
maybe a complaint presented by a private individual or it may be a
complaint instituted by a public authority pursuant to the requirements
of the special law governing the subject matter of such complaint. It
is essential to bear in mind the difference between the legal or judicial
process on a criminal complaint filed by a private individual and a
criminal complaint instituted by a public servant in discharge of his
official duties. For this, the distinct initial action on a police report
(charge sheet) on one hand in contrast to that on a criminal complaint
Crl.MC 4120/2016 Page 20 of 42
needs to be highlighted. Speaking of a cognizable offence, the police
having taken note of it under section 154 Cr.P.C. (by registering an
FIR), the final investigation report (under section 173 Cr.P.C.)
presented by it comes up before the magistrate (subject to all requisite
pre-conditions e.g. prior sanction, etc. being fulfilled), for
consideration at the stage of cognizance under section 190(1)(b)
Cr.P.C.. Since the investigation carried out would already have
gathered the requisite evidence, this also leads to possibility of
issuance of process (under section 204 Cr.P.C.) against the accused. In
contrast, if a criminal complaint is presented (whether for cognizable
or non-cognizable offence), the action at the end of the magistrate
begins by consideration as to whether a case is made out for
cognizance to be taken under section 190(1)(a) Cr.P.C. If the
magistrate does take cognizance on such complaint, he ordinarily
proceeds to hold preliminary inquiry (under fifteenth chapter) in terms
of sections 200 and 202 Cr.P.C. But, it is here that the action on
complaint made by a private individual differs from the action on a
complaint presented by a public servant acting or purporting to act in
discharge of his official duties (a complaint made by a court under
section 195 Cr.P.C. also being clubbed in the latter category).
33. In order to answer, and reject, one of the contentions of the
petitioners, it is necessary to quote section 200 Cr.P.C. which reads
thus:-
―200. Examination of complainant. - A Magistrate taking
cognizance of an offence on complaint shall examine
upon oath the complainant and the witnesses present, if
Crl.MC 4120/2016 Page 21 of 42
any, and the substance of such examination shall be
reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses-
(a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or
trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the
case to another Magistrate under section 192 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.‖
(emphasis supplied)
34. It is inherent in the scheme of procedure envisaged in the
fifteenth chapter (complaints to magistrates) that the further inquiry
(or investigation) under section 202 Cr.P.C. follows due compliance
with the initial steps prescribed in afore-quoted section 200 Cr.P.C. It
is also clear that if the complaint is presented by a public servant
acting or purporting to act in discharge of his official duties, there is
no obligation on the part of the inquiring magistrate to compulsorily
record the statement of the complainant and witnesses. He may or
may not do so. It is his prerogative and a matter of his judicial
satisfaction.
35. In the case of Rosy & Anr. (supra), the order of committal of the
case to the court of session had been quashed by the High Court of
Crl.MC 4120/2016 Page 22 of 42
Kerala and the case remitted to the magistrate for conducting a fresh
inquiry in terms of proviso to section 202 (2) Cr.P.C. before such
order of committal could be passed. The order was set aside by the
Supreme Court with directions to the session court to dispose of the
case on merits, the issue raised being as to whether the inquiry under
the proviso to section 202(2) Cr.P.C. by the magistrate in cases
exclusively triable by the sessions court was discretionary or
mandatory. There was divergence of opinion between the two hon'ble
judges, the decision eventually turning in above way for the reason the
objection had been taken belatedly.
36. Since the criminal case against the petitioners herein was
instituted on complaint under Section 13 of Official Secrets Act by an
authorised public servant acting in discharge of his official duties,
there was no obligation on the CMM to record pre-summoning
evidence under Sections 200-202 Cr.P.C. The objection raised as to
omission is frivolous and rejected.
37. Under the general law, a case is committed by the Magistrate to
the court of sessions primarily in terms of two specific provisions i.e.,
section 209 and section 323 Cr.P.C. (though such committal may also
occur in certain other situations e.g. under section 324 Cr.P.C.). The
two said provisions read thus:-
―209. Commitment of case to Court of Session when
offence is triable exclusively by it. - When in a case
instituted on a police report or otherwise, the accused
appears or is brought before the Magistrate and it
Crl.MC 4120/2016 Page 23 of 42
appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of section
207 or section 208, as the case may be, the case to the
Court of Session, and subject to the provisions of this
Code relating to bail, remand the accused to custody
until such commitment has been made;
(b) subject to the provisions of this Code relating to bail,
remand the accused to custody during, and until the
conclusion of, the trial;
(c) send to that Court the record of the case and the
documents and articles, if any, which are to be produced
in evidence;
(d) notify the Public Prosecutor of the commitment of the
case to the Court of Session.‖
―323. Procedure when, after Commencement of inquiry
or trial, Magistrate finds case should be committed. - If,
in any inquiry into an offence or a trial before a
Magistrate, it appears to him at any stage of the
proceedings before signing judgment that the case is one
which ought to be tried by the Court of Session, he shall
commit it to that Court under the provisions hereinbefore
contained and thereupon the provisions of Chapter XVIII
shall apply to the commitment so made.‖
38. As is clear from bare reading of section 209 Cr.P.C., the
scrutiny of the case for such purposes as of committal is carried out at
the threshold, immediately after the accused has appeared, pursuant to
the process (under section 204 Cr.P.C.) and after compliance has been
made with the statutory obligation of supply to him of copies of the
police report and other documents (under sections 207 or 208 Cr.P.C.).
The test is as to whether the offence for which the accused has been
Crl.MC 4120/2016 Page 24 of 42
summoned is "triable exclusively by the court of session". On the
other hand, the enabling power to commit the case to Court of session
is conferred on the magistrate, also by section 323 Cr.P.C., the
touchstone being its opinion that the case pending inquiry or trial
before it is one which "ought to be tried by the court of sessions". For
completion, it may be added that the provision contained in section
323 Cr.P.C. is generally invoked by the courts of magistrate to make
over a case to the court of session for clubbing of cross-cases, which
"ought‖ to be tried together; for example in situations where case of
one side may involve offence triable exclusively by the court of
sessions while the case of the opposite side may be ordinarily triable
by the court of magistrate.
39. Be that as it may, under the general provision of section 209
Cr.P.C., there is no obligation on the part of the magistrate to hold pre-
committal inquiry in the sense of recording evidence of the witnesses.
On the other hand, in situations covered by section 323 Cr.P.C., where
the magistrate commits the case to the court of sessions, because it
"ought to be tried" by the said court, it may be at the stage of "trial"
or "inquiry" anterior to the trial. If a trial has commenced before the
Magistrate, the possibility of some evidence having come on record
exists. But, if the trial has not so commenced and the stage is still of
some "inquiry" - for example, consideration of the case for framing of
charge - there would have been no occasion for formal evidence to be
recorded by the committal court. The fact, however, remains that the
provision contained in section 323 Cr.P.C. also casts no obligation on
Crl.MC 4120/2016 Page 25 of 42
the magistrate to record evidence before the case is committed to the
court of sessions. In the old Cr.P.C. (Code of Criminal Procedure,
1898) there used to be a stage for recording of evidence by a
committal magistrate. The said procedure had been abolished long ago
and does not survive.
40. As has been noted earlier, the procedural law for purposes of
trial of a case involving an offence under Official Secrets Act,
respecting the forum of trial, is to be read in light of section 13(2),
wherein an accused may opt for the case to be committed for trial to
the court of session at any time before charge is framed, it not being
the case of the petitioners that charge had been framed against them
during the earlier proceedings before the CMM.
41. The above position of law is sufficient to reject the other
contention of the petitioners that an illegality was committed by the
CMM in the present case by committing the case to the court of
sessions without recording evidence.
42. This brings us to the core issue revolving around section 210
Cr.P.C. which reads thus:-
―210. Procedure to be followed when there is a
complaint case and police investigation in respect of the
same offence. -
(1) When in a case instituted otherwise than on a police
report (hereinafter referred to as a complaint case), it is
made to appear to the Magistrate, during the course of
the inquiry or trial held by him, that an investigation by
the police is in progress in relation to the offence which is
the subject- matter of the inquiry or trial held by him, the
Crl.MC 4120/2016 Page 26 of 42
Magistrate shall stay the proceedings of such inquiry or
trial and call for a report on the matter from the police
officer conducting the investigation.
(2) If a report is made by the investigating police officer
under section 173 and on such report cognizance of any
offence is taken by the Magistrate against any person
who is an accused in the complaint case, the Magistrate
shall inquire into or try together the complaint case and
the case arising out of the police report as if both the
cases were instituted on a police report.
(3) If the police report does not relate to any accused in
the complaint case or if the Magistrate does not take
cognizance of any offence on the police report, he shall
proceed with the inquiry or trial, which was stayed by
him, in accordance with the provisions of this Code.‖
43. The Code of Criminal Procedure, 1898 ("old Cr.P.C.") did not
contain any provision corresponding to section 210 of Code of
Criminal Procedure, 1973 ("new Cr.P.C."). This provision had been
introduced in the new Cr.P.C. on the recommendation of the Joint
Select Committee of Parliament which, in its report, had set out the
objective thus:-
―78. ... It has been brought to the notice of the Committee
that sometimes when a serious case is under investigation
by the police, some of the persons file complaint and
quickly get an order of acquittal either by cancellation or
otherwise. Thereupon the investigation of the case
becomes infructuous leading to miscarriage of justice in
some cases. To avoid this, the Committee has provided
that where a complaint is filed and the Magistrate has
information that the police is also investigating the same
offence, the Magistrate shall stay the complaint case. If
the police report (under Section 173) is received in the
Crl.MC 4120/2016 Page 27 of 42
case, the Magistrate should try together the complaint
case and the case arising out of the police report. But if
no such case is received the Magistrate would be free to
dispose of the complaint case. This new provision is
intended to secure that private complainants do not
interfere with the course of justice.‖
(emphasis supplied)
44. Referring to the above quoted observations of the Parliamentary
Committee, and construing the provision of section 210 Cr.P.C., the
Supreme Court in Sankaran Moitra vs. Sadhna Das, 2006 (4) SCC
584, held thus:-
―76. A bare reading of the above provision makes it clear
that during an inquiry or trial relating to a complaint
case, if it is brought to the notice of the Magistrate that
an investigation by the police is in progress in respect of
the same offence, he shall stay the proceedings of the
complaint case and call for the record of the police
officer conducting the investigation.
77. The object of enacting Section 210 of the Code is
threefold:
(i) it is intended to ensure that private
complaints do not interfere with the course
of justice;
(ii) it prevents harassment to the accused
twice; and
(iii) it obviates anomalies which might arise
from taking cognizance of the same offence
more than once.‖
(emphasis supplied)
45. The petitioners refer to the decisions in Moti Lal (supra) and
Asmita Agarwal (supra) in support of their proposition that though the
Crl.MC 4120/2016 Page 28 of 42
special law may impel the Criminal Procedure Code to be read in a
modified form, the remainder which remains untouched cannot be
excluded or ignored. There can be no quarrel with this submission but
it needs to be examined as to whether the inhibition in section 210
Cr.P.C. would apply to the factual matrix presented by the case at
hand involving initiation of criminal action in the court for offences
under Official Secrets Act and, if so, to what extent or to what effect.
46. Before coming to the decision of a learned single judge of this
court in A.K. Jajodia (supra), which is the main plank of the
petitioners, the ruling in Savesa Sidhu (supra) of Punjab and Haryana
High Court may be noted. The accused in the said case had been
summoned by the magistrate to answer the charge for offences under
sections 406/498-A/307 read with section 34 IPC, the cognizance
having been taken on the private complaint of the alleged victim. The
summoning order was challenged before the High Court, reference
being made, inter alia, to the fact that a report had earlier been lodged
with the police which had registered an FIR, investigation whereinto
had been completed but a cancellation report under section 173
Cr.P.C. prepared though not presented before the magistrate. The
summoning order was set aside and the matter remanded back to the
magistrate for appropriate orders to be passed, inter alia, in terms of
section 210 Cr.P.C., holding that the factum of such investigation
having come to the knowledge of the magistrate it was incumbent on
him to "stay" the proceedings and to await or call for the police report,
observing thus:-
Crl.MC 4120/2016 Page 29 of 42
―15. The argument that violation of section 210 Code of
Criminal Procedure does not vitiate the proceedings in
the facts of the present case as both the complaint and
State case stand committed to the Court of Sessions, has
no merit. In case, a charge sheet is presented under
section 173 Code of Criminal Procedure and the
Magistrate, on the basis of the complaint without taking
into consideration the report under Section 173 Code of
Criminal Procedure, on the same set of allegations,
comes to the conclusion that no offence is made out, the
same is liable to cause prejudice to the complainant,
whereas, in case, a cancellation report is submitted in the
FIR and the Magistrate without taking into consideration
the cancellation report comes to the conclusion that a
prima facie case is made out, the same is likely to
prejudice the accused. Thus, ignoring the pendency of the
investigation in an FIR, shall prejudice one of the two
parties in either of the two situations. As such, the
violation of Section 210 Code of Criminal Procedure will
vitiate the proceedings. Hence, the provisions of section
210 Code of Criminal Procedure requiring the
Magistrate to stay the proceedings of an enquiry or a
trial and call for a report on the matter from the police
officer conducting the investigation was equally
mandatory.‖
47. The distinguishing feature, however, is that in the above case,
the complaint was presented on behalf of the private individual who
was also the first informant (victim) in the police case. Unlike that
case, criminal action for offences under Official Secrets Act cannot be
initiated by private individuals, it being only the prerogative of the
appropriate government which acts through the authorised public
servant under Section 13.
Crl.MC 4120/2016 Page 30 of 42
48. The case against the petitioner in A.K. Jajodia (supra) was also
one involving charge for offences under sections 3 and 5 of the
Official Secrets Act. The background facts taken note of in the
judgment of the learned single judge of this court give an impression
that the said case, also investigated by CBI, had suffered similar
protracted proceedings as seem to have happened in the present case.
The offences allegedly had been committed in April, 1987. A
complaint under section 13 of the Official Secrets Act had been
presented by DSP (CBI) in the court of CMM Delhi on 07.02.1989.
49. The case of A.K. Jajodia (supra) was committed to the court of
sessions. But, the said court discharged the accused persons by order
dated 22.07.1995 for want of sanction under Section 197 Cr. PC. On
17.12.1996, on the strength of sanction under Section 197 Cr. PC, a
second complaint was presented, founded on same set of allegations as
before. Fresh cognizance was taken by the CMM, the case again
committed later to sessions on 01.12.1997. The accused persons were
again discharged by the court of session by order dated 30.05.1998,
sanction for prosecution being found to be bad in law. A third
complaint was filed on 22.06.1999 alongwith report of investigation
under Section 173 Cr. PC. The CMM took cognizance on 22.06.1999.
The accused moved an application on 09.10.2000 raising objection of
non-compliance with the procedure envisaged in proviso to Section
202(2) Cr. PC. The objection was repelled, inter alia, with reference
to the notification dated 06.03.1998 whereby the Central Government
had specified the court of CMM to be the court of trial under Section
Crl.MC 4120/2016 Page 31 of 42
13 of the Official Secrets Act. The CMM thereafter took the case to
the stage of pre-charge evidence. While the case was pending at such
stage, the Central Government rescinded the earlier notification dated
06.03.1998 by notification dated 21.06.2006 referred to earlier.
50. Against the above backdrop, one of the accused (in case against
A.K. Jajodia) moved this court by a writ petition pointing out delay.
A division bench of this court accepted the said grievance and quashed
the proceedings. But, the said order was set aside by the Supreme
Court by order dated 26.08.2002 remitting the matter for
reconsideration. The writ petition was eventually disposed of with
direction for day-to-day trial within time bound manner. But, the
CMM, in the course of recording pre-charge evidence, referring to the
rescission of the notification dated 06.03.1998, committed the case to
court of session without completing the recording of pre-charge
evidence.
51. It is at the above noted stage that accused A.K. Jajodia had
moved an application before the court of sessions seeking remand of
the matter to CMM with direction that the procedure laid down in
proviso to sub-Section (2) of Section 202 and Section 208 Cr. PC be
followed. The court of sessions, in seisin of the case, dismissed the
said application by order dated 16.11.2007 which was impugned
before this court leading to the judgment reported as A.K. Jajodia
(supra).
52. It is noted that the revision petition challenging the above
mentioned order dated 16.11.2007 of the CMM in the above
Crl.MC 4120/2016 Page 32 of 42
mentioned case (A.K. Jajodia) was dismissed. But, in the course of
setting out the reasons, the learned single judge referred, inter alia, to
the decision of the Supreme Court in Rosy & Anr. (supra), the
contention of the said petitioner being that by virtue of the said ruling,
compliance with proviso to sub-section (2) of Section 202 Cr. PC has
been held to be mandatory in a complaint case. The relevant
background facts and the import of the decision in Rosy & Anr.
(supra) has been already taken note of in earlier part of this judgment
and it does not call for further elaboration.
53. But, the petitioners rely on the decision in A.K. Jajodia (supra)
primarily because it had also taken note of certain contentions with
reference to the application of Section 210 Cr. PC, the thrust of
arguments raised here being founded on the following passages:-
"24. It is a matter of record that in the entire judgment
in Rosy's Case (Supra) no discussion has taken place
about the provisions contained under Section
210 Cr.P.C. It is true that on a very strict reading of
Section 210 Cr.P.C. one can say that such procedure is
contemplated to be followed in a case in which earlier
a complaint is filed and thereafter a Police challan is
also filed. But even if that may not be so, if both the
things are done together which has been done in
the present case to say that provisions contained
under Section 210 Cr.P.C. are not attracted would
make the reading of Section 210 Cr.P.C. redundant
and would be contrary to the principles of
interpretation of statutes inasmuch, as it will not only
be contrary to the golden rule of Interpretation but
also purposive theory of interpretation.‖
Crl.MC 4120/2016 Page 33 of 42
29. In view of the aforesaid, it is necessary to give a
purposive and harminous interpretation to the
provision contained under Section 210 Cr.P.C. in the
facts of this case. Merely because the Police
investigation was conducted prior to the filing of the
complaint, it cannot be said that the situation as
contemplated under Section 210 Cr.P.C. was not
attracted. Thus, when the Magistrate took cognizance
and committed the matter to Sessions that also after
supplying copies of the statements recorded under
Section 161 by the Police coupled with copies of the
documents seized during the course of investigation to
the accused persons before committing their case to the
Sessions, he followed not only the complaint procedure
but also the procedure as contemplated under Section
210 Cr.P.C. and, therefore, it was not a case where
there was necessity of recording the statement of the
witnesses prior to the stage of committal as
contemplated under Section 202(2) Cr.P.C. more so
because it was a compaint filed by a public servant and
which was accompanied with the report of Police
investigation which was complete in itself enabling the
Court to satisfy as to whether prima facie a case was
made out or not. Further the prejudice if any which
may have been caused to the accused persons in such a
case, as is contemplated under Section 207/208
Cr.P.C., was also not there because of supply of the
documents and copies of the statements.‖
(emphasis supplied)
54. In the considered view of this court, some confusion arises from
the above quoted observations drawing a connection between the
effect of Section 210 Cr. PC on one hand, the need for recording
statement of witnesses under Section 202(2) Cr. PC on the other hand,
Crl.MC 4120/2016 Page 34 of 42
and the order of committal (to court of sessions) on yet another. As
already observed and concluded, there is no obligation on the part of
the magistrate to record the statements of witnesses in the pre-
summoning inquiry on a complaint presented by a public servant in
discharge of his official duties. Further, there is no obligation on the
court of magistrate, in the inquiry held after summoning, to record the
statements of witnesses prior to committal of the case to the court of
session. The views quoted above are per incurium because the effect
of inhibition against cognizance except on complaint of authorized
public servant as contained in sections 13(3) Official Secrets Act was
not noticed. Be that as it may, the above quoted observations of the
learned single judge of this court in A.K. Jajodia (supra) do not
represent the ratio decidendi for the simple reason the issue raised in
that case for answer by the court was regarding the applicability of
Section 202(2) and Section 208 Cr. PC rather than the effect of
Section 210 Cr. PC.
55. It bears repetition to say that Official Secrets Act is a special
statute which creates a special offence, the legislation partially
modifying the general criminal procedure applicable thereto. It is well
settled principle of law that if a special statute lays down a modified
procedure, the general law to that extent shall not apply [Jeewan
Kumar Raut & Anr. Vs. CBI AIR 2009 SC 2763 and M/s Viniyoga
International, New Delhi & Anr. Vs. The State 1985 CriLJ 761]. This
principle is enshrined in Section 4(2) Cr. PC which stipulates that
Crl.MC 4120/2016 Page 35 of 42
general procedure would apply to the special offence subject to
modification thereby brought about.
56. In Aniruddha Bahal (supra), the issue raised in the revisional
jurisdiction of this court also arose out of a similar prosecution for
offences under Sections 3 and 5 of the Official Secrets Act initiated by
CBI. It is noted (from facts mentioned in paras 3, 10 & 11) and the
contention of the said petitioner (as mentioned in para 24) which
seems to have been accepted that the complaint under Section 13 of
the Official Secrets Act was presented on 04.06.2003, followed by a
"charge-sheet" submitted on 12.04.2005, cognizance having been
taken by the CMM of offences under Official Secrets Act (besides
those under the Arms Act) on the basis of "challan" i.e. charge-sheet.
The said case had been committed to the court of sessions which, by
order dated 16.10.2002, had found material on record disclosing prima
facie commission of offences under Official Secrets Act, the said
order having been challenged before this court. The revision petition
was allowed and the accused persons in that case were discharged, the
contention of the petitioner, inter alia, to above effect and also about
insufficiency of the material placed before the court having been
accepted. Though there is no elaborate articulation of the reasons for
such conclusion, while dealing with the argument based on Section
210 Cr. PC, the learned single Judge clearly ruled (in para 40) that ―it
would have no applicability to the trial of offences under the Official
Secrets Act‖.
Crl.MC 4120/2016 Page 36 of 42
57. Since the argument of the kind raised here with reference to
Section 210 Cr. PC is likely to plague other similarly placed
prosecutions, it is essential that the legal position is clarified.
58. As noted above, the objective of enactment of the inhibition
contained in Section 210 Cr. PC was to ensure that ―private
complainants do not interfere with the course of justice‖ [see the
report of the Joint Select Committee of Parliament (supra)]. In
Sankaran Moitra (supra), the Supreme Court added that this provision
(Section 210) intends to prevent ―harassment to the accused twice‖
and ―obviate anomalies‖ that may arise from ―taking cognizance of
the same offence more than once‖. It is clear from the very scheme of
the modified criminal procedure applicable to offences under the
Official Secrets Act that cognizance can never be taken by a criminal
court on a "private complaint". Section 13(3) of the Official Secrets
Act absolutely precludes and prohibits such a possibility. It renders
"complaint" by order of, or under authority from, the appropriate
government to be sine qua non for court to take cognizance.
Noticeably, what is necessary is a complaint - it excluding by virtue
of its definition a report of investigation under Section 173 Cr. PC.
59. In above view, in a case involving offences under Official
Secrets Act, there cannot conceivably be a situation where the
criminal court may have the occasion to take cognizance first on a
private complaint and thereafter, pass yet another order of cognizance
on report of investigation by the police, as is the scenario visualized in
section 210 (2) Cr.P.C. The prejudices of the kind envisaged to be the
Crl.MC 4120/2016 Page 37 of 42
concern of the legislature in Section 210 Cr. PC, as expounded in
Sankaran Moitra (supra), are thus not at all likely to occur in the
context of criminal action under the Official Secrets Act.
60. This, however, brings us to the justification of the position
taken by the CBI in withholding the report under Section 173 Cr. PC
even long after having filed a complaint under Section 13 of the
Official Secrets Act. This court disapproves of the stand adopted by
CBI and would elaborate the reasons as to impropriety and
inadvisability of such approach to such cases in the discussion that
follows.
61. As said before, it being essential to recapitulate here, having
regard to the punishment that is prescribed for the offences under the
Official Secrets Act, with which this matter is concerned, there can be
no doubt as to the fact that they are "cognizable offences" within the
meaning of the expression defined in Cr. PC. It is because of such
nature of the crimes that the matter having come to the notice of the
concerned agency - CBI in the present case - an FIR was registered in
terms of Section 154 Cr.PC. As noted at length in the earlier part of
this judgment, the registration of FIR relating to a cognizable offence
under Section 154 Cr. PC is bound to be followed up by investigation
in accordance with the provisions contained in relevant part (Twelfth
Chapter) of Cr. PC, such investigative process expected to culminate
eventually in the report of investigation under Section 173 Cr. PC. It
is not a matter of choice, whims or fancy of the police officer
responsible for investigation into a cognizable offence to decide as to
Crl.MC 4120/2016 Page 38 of 42
whether or not he is obliged in law to file such report ―on completion
of investigation‖. It is his bounden duty to do so. It is the report under
Section 173 Cr. PC which presents before the court the material or
evidence which has been gathered during such investigation, leaving
the matter in the hands of the court thereafter to pass appropriate
orders in its light. But then, in a case of a special law like the Official
Secrets Act, such report of investigation under Section 173 Cr. PC
cannot result in cognizance being taken by the competent court under
Section 190(1)(b) Cr. PC (―upon a police report‖). Section 13 of the
Official Secrets Act requires instead a complaint to be presented by a
public servant authorised by the appropriate Government to do so.
The Official Secrets Act, however, does not create or establish its own
investigative machinery. It is inherent in this scheme of things that the
complaint submitted by the empowered public servant, under authority
from the appropriate government, would be based, in turn, on the
material (or evidence) which has been gathered by the police that had
registered the cognizable offence under the Official Secrets Act.
62. In the above scenario, it necessarily follows that ordinarily the
complaint under Section 13 of the Official Secrets Act would be
presented by the empowered or authorised public servant in the wake
of ―completion of investigation‖ by the police. The allegations in the
complaint under Section 13 would thus be based essentially on the
evidence that has been gathered in such investigation. The complaint
would invariably rely on the evidence which has been gathered during
such police investigation. In this scenario, it is desirable that the
Crl.MC 4120/2016 Page 39 of 42
report of investigation under Section 173 Cr. PC is also submitted
before the court alongside, or in the wake of, if not simultaneous to,
the presentation of the complaint under Section 13 of the Official
Secrets Act.
63. No doubt, the competent court would be expected, in terms of
section 13(3) of Official Secrets Act, to act on the complaint to decide
whether a case had been made out for cognizance to be taken in
exercise of the power under Section 190(1)(a) Cr.P.C. But, for
purposes of seeking assurance that the facts stated in the complaint do
constitute offence(s) under the Official Secrets Acts and are well
founded, based on evidence which was gathered in accordance with
law, it would have the benefit of report of investigation under Section
173 Cr. PC placed before it by the police. The court of cognizance
does not act on such police report of investigation but only on the
complaint.
64. This court, for detailed reasons set out above, endorses the view
taken in Aniruddha Bahal (supra) that the provision contained in
Section 210 Cr. PC has no applicability to a complaint case instituted
by a public servant under Section 13 of the Official Secrets Act. But,
in order that such dust as has been raised in the present case is not
thrown up in future, it is desirable that the investigating agency bears
in mind that no purpose is served by withholding - that too
indefinitely - the report of investigation under Section 173 Cr. PC.
Once such investigation into a cognizable offence under the Official
Secrets Act has been completed, the case at the end of the
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investigating police must culminate in a report of investigation being
prepared and submitted, though it not expected to be treated as a
―charge-sheet‖ on which cognizance is to be taken under Section 190
Cr. PC.
65. For removal of doubts, it may be added that submission of such
report under Section 173 Cr.PC does not mean the police would have
no power to undertake such ―further investigation‖ as may be deemed
necessary in terms of Section 173(8) Cr. PC. The law gives such
authority to the police and recourse to such power can always be made
if the facts of a particular case so demand.
66. For the foregoing reasons, this court disapproves the position
taken by the CBI vis-a-vis its obligation in terms of Section 173 Cr.
PC. But, as is clear from the earlier discussion, this court finds no
substance in the objection based on the provision contained in Section
210 Cr. PC. There has been no breach of the law, nor any prejudice
caused to the petitioners, on account of belated submission of report of
investigation under Section 173 Cr. PC. At the same time, it must be
added that the learned court of session where the report of
investigation under Section 173 Cr. PC was submitted in the present
case on 03.05.2019 has wrongly described it as "charge-sheet". Such
report is not meant to be a charge-sheet in the sense it requires to be
acted upon under Section 190(1)(b) Cr. PC. The said report is only
intended to make the complete record of evidence gathered during
investigation available to the court, to the prosecution and to the
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defence for such use as may be permissible in law for complete and
effectual justice.
67. Before parting, it is deemed necessary to observe that there is a
need to amend the provision contained in Section 13 of the Official
Secrets Act at the earliest. The law was enacted in 1923. The
expression ―District or Presidency Magistrate‖ has outlived its utility.
The judicial magistracy by such description no longer exists in this
country. The law refers to the court of the Magistrate of the First
Class (specially empowered in this behalf). The issuance of
notification on 06.03.1998, and its subsequent rescission on
21.06.2006, seem to have only added to the confusion. It is essential
that the legislature suitably modifies the provision contained in
Section 13(1) of the Official Secrets Act at the earliest so that there is
no ambiguity.
68. The petition is dismissed with above observations.
69. Copies of this judgment shall be sent to the Director, Delhi
Judicial Academy, the Secretary, Ministry of Home Affairs in the
Government of India, the Secretary, Ministry of Law, Justice and
Legislative Affairs in the Government of India, as also, of course, to
the concerned criminal court.
R.K.GAUBA, J.
AUGUST 08, 2019 vk/yg Crl.MC 4120/2016 Page 42 of 42