Bombay High Court
Rashmi Uday Shukla vs The State Of Maharashtra And Ors on 15 December, 2021
Author: Nitin Jamdar
Bench: Nitin Jamdar, Sarang V. Kotwal
1 Cri. Writ Petition 1901.21.doc
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1901 OF 2021
Rashmi Uday Shukla,
Residing at Campus
C.R.P.F. Chandrayangutta,
Keshogiri, Hyderabad,
Telangana - 500 0051 .. Petitioner
v/s.
1. The State of Maharashtra
Through Cyber Crime Police Station
BKC, Mumbai
2. Kayomarz Baman Irani
Assistant Commissioner of Police
Age 54 years, Occ. : Service
Having office at
State Intelligence Department
Mumbai
3. Central Bureau of Investigation
Through Director, 6th Floor,
CGO Complex, Lodhi Road,
New Delhi - 110003 .. Respondents
....
Mr. Mahesh Jethmalani, Senior Advocate, along with Ms. Gunjan
Mangla, instructed by Sameer P. Nangre, for the Petitioner.
2 Cri. Writ Petition 1901.21.doc
Mr. Darius J. Khambata, Senior Advocate, along with Mr. J.P.
Yagnik, Assistant Public Prosecutor, Mr. Pheroze Mehta and Mr.
Tushar Hathiramani, for Respondent No.1 and 2 -State.
Mr. Anil Singh, Additional Solicitor General, along with Mr. Aditya
Thakkar, Mr. D.P. Singh, Ms. Smita Thakur and Mr. Pranav Thakur,
for Respondent-No.3-CBI.
....
CORAM: NITIN JAMDAR &
SARANG V. KOTWAL JJ.
RESERVED ON : 29 OCTOBER 2021.
PRONOUNCED ON : 15 DECEMBER 2021
Judgment (Per Nitin Jamdar, J) :-
Rule. Rule made returnable forthwith. Respondents
waive service. Taken for disposal.
2. On 26 March 2021, the Respondent No.2-Assistant
Commissioner of Police filed a First Information Report at the Cyber
Crime Police Station, Mumbai, with the allegation that on 23 March
2021, Mr. Devendra Fadnavis, the Leader of the Opposition, in an
interview on a television news channel produced a copy of the
secret/confidential letter addressed by Ms. Rashmi Shukla, the
Commissioner State Intelligence Department to the Director-
General of Police. It was also alleged that the Leader of the
Opposition also showed a pen drive containing sensitive and
3 Cri. Writ Petition 1901.21.doc
confidential material concerning the police force in Maharashtra
obtained by State Intelligence Department through interception.
Crime C.R. No.02 of 2021 was registered with Cyber Cell, BKC,
Bandra (East) against unknown persons on the allegation that
confidential material received through legal interception was illegally
obtained and supplied to an unauthorised person, thereby
committing offences under the Indian Telegraph Act, 1885,
Information Technology Act, 2000 and, the Official Secrets Act,
1923.
3. Ms. Rashmi Shukla, who was Commissioner of the State
Intelligence Department at the relevant time, has filed this petition
for quashing the C.R. No.02 of 2021. In the alternative, the
Petitioner prays that the investigation pursuant C.R. No.02 of 2021
be transferred to the Central Bureau of Investigation.
4. We have heard Mr. Mahesh Jethmalani, the learned
Senior Advocate, for the Petitioner and Mr. Darius Khambata, the
learned Senior Advocate for the Respondent- State of Maharashtra
and Mr. Anil Singh, the learned Senior Additional Solicitor General,
for the Respondent - Central Bureau of Investigation.
5. The impugned FIR bearing No. 2 of 2021 does not
name the Petitioner. Upon a query as regards the stand of the
Respondent - State on this issue, the learned Senior Advocate for the
4 Cri. Writ Petition 1901.21.doc
Respondent State, on instructions, informed that there is material
against the Petitioner and no statement can be made that the
Petitioner will not be named as an accused. The learned Senior
Advocate for the State sought to produce some material in that
regard in a sealed envelope for the perusal of the Court alone. Since
the material could be against the Petitioner and we may be required
to render a finding based on the same, we did not the sealed
envelope on record. In light of this position, the learned Counsel for
the parties have proceeded to address us in the Petition.
6. The Petitioner is an officer of the Indian Police Service,
appointed in the year 1988. The Petitioner worked at various places
in the State of Maharashtra. On 11 October 2018, the Petitioner
was appointed as the Commissioner of State Intelligence
Department (SID). On 25 August 2020, the Petitioner addressed a
communication to the Director-General of Police, State of
Maharashtra. In this communication, the Petitioner stated that
numerous complaints allege a network of brokers with political
connections who are engaging in the desirous posting of police
officers in the State in exchange for large sums of money. In order to
ascertain the veracity of these reports, phone numbers of those
involved in nefarious activities were placed under telephone
surveillance upon taking necessary permissions. It was stated that
there is merit in the complaints, and police officers ranging from
5 Cri. Writ Petition 1901.21.doc
inspectors to several high ranking IPS officers are in contact with
undesirable individuals. The Petitioner annexed a factual report
substantiating the findings and recommended a high-level enquiry
to be undertaken and the matter be brought to the notice of the
Chief Minister of Maharashtra. Upon receipt of this
communication, Mr. S.K. Jaiswal, who was the Director-General of
Police of Maharashtra (DGP), wrote to Mr. Sitaram Kunte, who was
the Additional Secretary (Home), the State of Maharashtra, on 26
August 2020, informing him that the report has been received from
the Commissioner SID and forwarded the same to him with a
recommendation for an enquiry. We are informed that Mr. Sitaram
Kunte wrote to the Director-General to be cautious and proceed
based on cogent material alone, resort to counselling, etc. According
to the Petitioner, the Petitioner had also informed the Hon'ble Chief
Minister on 11 August 2020 about the information received
through the interception.
7. On 2 September 2020, the Petitioner was transferred
from the post of Commissioner of State Intelligence Department to
the post of Director General of Civil Defense, the State of
Maharashtra.
8. On 23 March 2021, the Leader of Opposition Mr.
Devendra Fadnavis during an interview, referred to the
6 Cri. Writ Petition 1901.21.doc
communications and the report of the Petitioner. After the Leader
of Opposition held the press interview, the Chief Secretary (Mr.
Sitaram Kunte) prepared a report regarding the allegations made by
the Leader of Opposition referring to the report prepared by the
Petitioner. The Chief Secretary sought to record the factual position
regarding the transfer and the action taken. It was stated that except
in some transactions in the year 2020, all transfers were made as per
the recommendation of Police Establishment Boards, and all
recommendations were unanimously made. This report was
prepared on 25 March 2021.
9. On 26 March 2021, the impugned FIR came to be filed
by Respondent No.2, Assistant Commissioner of Police, with the
Cyber Crime Police Station, Mumbai. The gist of the FIR is as
follows. On 23 March 2021, while Respondent No.2 was in the
office, at about 11.00 hours in the morning, he watched the live
interview of the Opposition Leader Mr. Devendra Fadnavis on the
Marathi News Channel of ABP Majha. He saw that Mr. Devendra
Fadnavis showed the copy of the secret/confidential letter sent to the
then Director General of Police Mr. Subodh Jaiswal and read over
the contents the same, in which there was secret information about
transfers of Police Officers. Similarly, he showed one pen drive and
with around 6.0 G.B. data in the same, which, according to him,
contained the conversations between senior police officers and some
7 Cri. Writ Petition 1901.21.doc
private persons obtained by State Intelligence Department through
interception. After the press conference, the said letter read over by
Mr. Devendra Fadnavis was telecasted and circulated on different
social media. The Informant stated that the letter concerned with
the confidential information along with the technical
data/information gathered by Informant and his colleagues from
time to time as per the order of the then State Intelligence
Department about the general transfers of the year 2020 through
legal interception, which with a detailed report then Commissioner
had given to the then Director General of Police. The Leader of
Opposition read over secret/confidential letters and correspondence
in a Press Conference, and the data of confidential interception
obtained lawfully could also be with the Leader of Opposition.
Thus some unknown person illegally obtained the confidential letter
written by Commissioner Smt. Rashmi Shukla to the then Director
General of Police, and the document and the information received
through legal interception were supplied to the Leader of
Opposition. The FIR was filed under Section 43B and Section 66
of the Information Technology Act, 2000, Section 30 of the Indian
Telegraph Act,1885 and Section 5 of the Official Secrets Act, 1923.
10. After the FIR in the present case was filed, a summons
was issued to the Petitioner on 26 April 2021 under Section 160 of
Cr.P.C. summoning the Petitioner to remain present on 28 April
2021. The Petitioner replied on 27 April 2021 and informed
8 Cri. Writ Petition 1901.21.doc
Respondent No.1 about her inability to remain present due to the
situation brought about by the Covid-19 pandemic. After that,
Petitioner was called to attend as per her convenience from 29 April
2021 to 4 May 2021. On 5 May 2021, the Petitioner filed the
present writ petition.
11. The Deputy Commissioner of Police, on behalf of the
Respondent - State, has filed a reply denying the contentions of the
Petitioner. It is stated that the information received pursuant to
surveillance constitutes information contemplated under Section 5
of the Official Secret Act, and leakage of such information is an
offence that must be investigated. It is contended that the only
question before the Court is whether a cognisable offence is made
out. The reply deals with the assertions in the petition parawise, and
it is stated that the determination of the person who had control over
the documents and who leaked the information is a matter of
investigation.
12. The Petitioner has filed a rejoinder reiterating the
contentions regarding malafides and that no offence is made out. It
is stated that the surveillance and submission of the report were as
per law.
13. Before we proceed further, a reference to other judicial
proceedings will be necessary to keep the matter in perspective. On
9 Cri. Writ Petition 1901.21.doc
20 March 2021, Mr. Param Bir Singh, the then Commissioner,
Mumbai, wrote to the Hon'ble Chief Minister making allegations
against Mr. Anil Deshmukh, the Home Minister, Maharashtra that
Mr. Anil Deshmukh had abused his position for monetary gains.
One Dr. Patil filed a complaint with Malabar Hill Police Station
based on the letter of Mr. Param Bir Singh making allegations
against Mr. Anil Deshmukh. Mr. Param Bir Singh filed a Writ
Petition (Civil) No. 385 of 2021 in the Supreme Court for a
direction to the CBI to conduct a fair and impartial investigation in
the alleged malpractices of Mr. Anil Deshmukh. The Petition was
disposed of as withdrawn. After that Mr. Param Bir Singh filed a
Public Interest Litigation No. 6 of 2021 in this Court for
investigation in the alleged malpractices committed by Mr. Anil
Deshmukh. Dr. Patil filed Writ Petition No.1541 of 2021. Two
more Public Interest Litigations were filed seeking independent
investigation. The Division Bench of this Court ( Chief Justice and
G.S. Kulkarni, J.) disposed of the bunch of petitions by order dated
5 April 2021. The Division Bench directed the Director of CBI to
carry out a preliminary enquiry and take further courses available in
law. Mr. Anil Deshmukh resigned from the post of Home Minister.
The preliminary enquiry was conducted and FIR No. R.C.
2232021A003 of 2021 on 21 April 2021 at AC-B, CBI, New Delhi
for offences punishable under Section 120-B of Indian Penal Code,
1960 and under Section 7 of the Prevention of Corruption Act,
10 Cri. Writ Petition 1901.21.doc
1988 (as amended) by amendment Act of 2018 against Mr. Anil
Deshmukh and others. The fifth unnumbered paragraph of the FIR
concerned with the issue of transfer of Police Officers mentioned in
the report of the Petitioner. The State of Maharashtra filed a Writ
Petition No.1903 of 2021 seeking to challenge un-numbered
paragraph 5 (also 4) that the investigation as regard this area in the
FIR was beyond the scope of the order passed on 5 April 2021. The
Division Bench (S.S. Shinde and N.J. Jamadar, JJ.) opined that the
un-numbered paragraph 5 would fall within the ambit of the order
dated 5 April 2021 it was linked with the allegation of official
position by the then Home Minister. The Division Bench however
clarified that the investigation in FIR filed on 21 April 2021 could
not be regarding all transfers of police officers as per the report of the
Petitioner but only regarding undue influence exercised by Mr. Anil
Deshmukh, the ex-Home Minister of Maharashtra. Division Bench
dismissed the writ petition 1903 of 2021 by order dated 22 July
2021. The Division Bench clarified that the present writ petition,
which was then pending, will be decided on its own merits. The
State of Maharashtra challenged the order dated 22 July 2021in the
Supreme Court by filing a Special Leave Petition, which was
dismissed.
14. The Petitioner has sought the following prayers in the
Petition:-
11 Cri. Writ Petition 1901.21.doc
"(a) That this Hon'ble Court may be pleased to quash
and set aside the FIR bearing C.R. No. 02 of 2021
registered with Respondent No.1; and
(b) That in the alternative this Hon'ble Court be
pleased to transfer FIR bearing C.R. No 02 of 2021 and
investigation pursuant thereto to Respondent No.3."
15. We will first consider the prayer for quashing of the FIR
and, thereafter, the alternate prayer for transfer of investigation.
16. Though the Petitioner has made wide-ranging
arguments, we have to keep in mind the scope of the matter before
us. There are various stages in a criminal proceeding, and the degree
of scrutiny by the court at different stages would be different. We are
called upon to quash of the FIR when the investigation is at a
preliminary stage. Our discussion and observations in this decision
are in the context of this prayer made.
17. The Petitioner has invoked the provisions of Article 226
of the Constitution of India and Section 482 of the Code of
Criminal Procedure for grant of this relief. The law regarding the
exercise of the powers under Article 226 of the Constitution of India
and Section 482 of the Code of Criminal Procedure to consider
these prayers has been settled by a series of decisions of the Supreme
Court, including the leading decision in the case of State of Haryana
12 Cri. Writ Petition 1901.21.doc
v/s. Bhajan Lal 1 and the latest decision of the Supreme Court in M/s.
Neeharika Infrastructure Pvt. Ltd. v/s. State of Maharashtra 2 where
review of the earlier case law on the subject was taken. In the
case of Bhajan Lal, the Supreme Court identified and referred to
certain contingencies where the FIR and complaint could be
quashed. The law laid down in the case of Bhajan Lal was reiterated
by the Supreme Court in various decisions and is applied in many
cases by the High Courts. The common thread that runs through
these decisions is that while the power of the High Court under
Article 226 of the Constitution of India and Section 482 of the Code
of Criminal Procedure to quash the FIR is available, its exercise
should be in exceptional circumstances. The balance between the
power of the High Court and the self-imposed restraint to be
exercised is highlighted in the decision of Neeharika, where after a
detailed review of the law on the subject, the Bench of three learned
Judges have laid down the propositions of law. The principles
affirmed in the decision of Neeharika, which are relevant to the case
at hand, are as follows. The primary position is that the police have a
statutory right and duty to investigate a cognisable offence. The
courts would not ordinarily obstruct any investigation into the
cognisable offences. The power of quashing should be exercised
sparingly and with circumspection. The exercise of this power to be
in the 'rarest of rare' cases, clarified as not to be confused with the
1 AIR 1992 SC 604
2 AIR 2021 SC 1918
13 Cri. Writ Petition 1901.21.doc
term used in the death penalty context. Save in exceptional cases
where non-interference would result in the miscarriage of justice; the
court should not interfere at the stage of investigation of offences
and scuttle the criminal proceedings at the initial stage. When a
prayer is made to quash the FIR because the FIR does not disclose
any cognisable offence, it must be borne in mind that an FIR is not
an encyclopaedia that must disclose all the details. While considering
the prayer for quashing the FIR, the court has only to examine
whether the accusations in the FIR disclose the commission of a
cognisable offence or not. If they are present, the court has to permit
the investigating agency to investigate the allegations in the FIR.
18. Therefore, the question before us is whether the
Petitioner has made out an exceptional case to quash the FIR in light
of the legal position as above.
19. The first ground agitated by the petitioner to quash the
FIR is that the allegations made in the first information report, even
if they are taken at their face value and accepted in their entirety, do
not prima facie constitute any offence or make out a case against the
accused.
20. The impugned FIR is lodged under section 43B and
Section 66 of the Information Technology Act, 2000 (the IT Act);
Section 30 of the Indian Telegraph Act, 1885 (the Telegraph Act);
14 Cri. Writ Petition 1901.21.doc
and Section 5 of the Official Secrets Act, 1923(the Official Secrets
Act). To refer again to the FIR, it states that on 23 March 2021,
during the live interview on a Marathi news channel, the Leader of
opposition, Mr. Devendra Fadnavis produced a copy of the
confidential letter written by the Petitioner dated 25 August 2020 to
the Director-General of Police. The Leader of the Opposition read
out the contents. The Leader of the Opposition also showed a pen
drive that contained around 6 G.B. of data of conversation between
Senior Police Officer and private person which the State Intelligence
Department had obtained. The interview was given wide publicity.
According to the FIR, that unknown persons have leaked the
confidential letters and material sent by the Petitioner to the then
Director General of Police by intercepting it and this being classified
information, the offence under Section 30 of the Indian Telegraph
Act read with Section 49(b), and 66 of the Information Technology
Act and Section 5 of the Official Secrets Act are attracted.
21. Section 30 of the Indian Telegraph Act, which is referred
in the FIR, reads thus:-
" Section 30. Retaining a message delivered by
mistake.--
If any person fraudulently retains, or wilfully secretes,
makes away with or detains a message which ought to
have been delivered to some other person, or, being
required by a telegraph officer to deliver up any such
15 Cri. Writ Petition 1901.21.doc
message, neglects or refuses to do so, he shall be
punished with imprisonment for a term which may
extend to two years, or with fine, or with both."
Section 30 makes fraudulent retention of a message which is to be
delivered to some other person an offence. The FIR has also applied
Sections 43, 66 of the Information Technology Act. Section 43
reads thus:-
"Section 43 [Penalty and compensation] for damage to
computer, computer system, etc. -
If any person without permission of the owner or any
other person who is in charge of a computer, computer
system or computer network,-
(a) accesses or secures access to such computer,
computer system or computer network [or computer
resource];
(b) downloads, copies or extracts any data, computer
database or information from such computer, computer
system or computer network including information or
data held or stored in any removable storage medium;
(c) introduces or causes to be introduced any computer
contaminant or computer virus into any computer,
computer system or computer network;
(d) damages or causes to be damaged any computer,
computer system or computer network, data, computer
database or any other programmes residing in such
computer, computer system or computer network;
(e) disrupts or causes disruption of any computer,
computer system or computer network;
(f) denies or causes the denial of access to any person
authorised to access any computer, computer system or
computer network by any means;
16 Cri. Writ Petition 1901.21.doc
(g) provides any assistance to any person to facilitate
access to a computer, computer system or computer
network in contravention of the provisions of this Act,
rules or regulations made thereunder;
(h) charges the services availed of by a person to the
account of another person by tampering with or
manipulating any computer, computer system, or
computer network,
(i) destroys, deletes or alters any information residing in
a computer resource or diminishes its value or utility or
affects it injuriously by any means;
(j) steal, conceals, destroys or alters or causes any person
to steal, conceal, destroy or alter any computer source
code used for a computer resource with an intention to
cause damage;
he shall be liable to pay damages by way of
compensation to the person so affected. Explanation.-
For the purposes of this section,-
(i) "computer contaminant" means any set of computer
instructions that are designed-
(a) to modify, destroy, record, transmit data or
programme residing within a computer, computer
system or computer network; or
(b) by any means to usurp the normal operation of the
computer, computer system, or computer network;
(ii) "computer database" means a representation of
information, knowledge, facts, concepts or instructions
in text, image, audio, video that are being prepared or
have been prepared in a formalised manner or have been
produced by a computer, computer system or computer
network and are intended for use in a computer,
computer system or computer network;
(iii) "computer virus" means any computer instruction,
information, data or programme that destroys, damages,
degrades or adversely affects the performance of a
computer resource or attaches itself to another computer
17 Cri. Writ Petition 1901.21.doc
resource and operates when a programme, data or
instruction is executed or some other event takes place
in that computer resource;
(iv) "damage" means to destroy, alter, delete, add,
modify or rearrange any computer resource by any
means;
(v) "computer source code" means the listing of
programmes, computer commands, design and layout
and programme analysis of computer resource in any
form."
Unauthorised downloading or copying, or extracting database or
information data without the permission of the owner is an offence
which is punishable under Section 66 of the Information
Technology Act, which reads thus:-
"Section 66. Computer-related offences.
-If any person, dishonestly or fraudulently, does any act
referred to in section 43, he shall be punishable with
imprisonment for a term which may extend to three
years or with fine which may extend to five lakh rupees
or with both. Explanation. -For the purposes of this
section,-
(a) the word "dishonestly" shall have the meaning
assigned to it in section 24 of the Indian Penal Code (45
of 1860);
(b) the word "fraudulently" shall have the meaning
assigned to it in section 25 of the Indian Penal Code (45
of 1860)."
******
Section 77-B makes the offences under this Act punishable with
imprisonment of three years and cognisable.
18 Cri. Writ Petition 1901.21.doc
22. The learned Counsel for the Petitioner contended that
the offence under Section 43B and Section 66 of the IT Act and
Section 30 of the Telegraph Act are not made out by the bare perusal
of the FIR. It is contended that the Petitioner did not have access to
the computer at all, and there is no allegation of downloading the
information. The Petitioner contends that it is only an inference
that the information was given. The Respondent - State contends
that Section 43B of the IT Act, which deals with downloading and
taking copies of the material unauthorisedly, by virtue of Section
77-B and Section 66 of the IT Act, is a cognisable offence. Even
under Section 30 of the Telegraph Act retaining information
without authority is an offence. The Respondent - State contends
when the investigation is still going on as to how classified
information was unauthorisedly leaked, it will be premature to hold
that no offence under these sections is made out and the Court must
permit the police to carry on the investigation.
23. As per the FIR, the pen drive shown by the Leader of the
Opposition was not obtained with the owner's permission. Whether
and how the confidential letter and the pen drive, which allegedly
contained confidential information was dealt with without
permission, is a matter of investigation. It will not be possible to
render a finding that this FIR does not disclose the commission of
any cognisable offence without going into the merits and demerits of
19 Cri. Writ Petition 1901.21.doc
the allegations. We will refrain from giving final findings on the
merits of the case since the entire spectrum of facts is not before us
and when the investigation is still ongoing. Therefore, at this stage,
when Respondent Nos. 1 and 2 are in the process of investigation as
to how the pen drive containing various confidential material was
fraudulently retained, unauthorizedly downloaded and copied, it
cannot be said that the facts stated in the FIR do not constitute any
cognisable offence under Section 30 of the Indian Telegraph Act and
Section 66 and 77-B of the Information Technology Act.
24. The learned Counsel for the parties advanced
contentions at length regarding Section 5 of the Official Secrets Act.
The primary contention of the Petitioner is that the Petitioner has
nothing to do with the incident narrated in the FIR, and there is no
material against the Petitioner at all in respect of the incident
narrated therein. The alternate submission is that even assuming for
the sake of argument that the Petitioner supplied the pen drive and
the material to the Leader of the Opposition, even then, no offence
is made out under Section 5 of the Official Secrets Act.
25. Section 5 deals with wrongful communications of
information and reads thus:-
"Section 5. Wrongful communication, etc., of information.
20 Cri. Writ Petition 1901.21.doc
-- (1) If any person having in his possession or control any
secret official code or pass word or any sketch, plan, model,
article, note, document or information which relates to or is
used in a prohibited place or relates to anything in such a
place, [or which is likely to assist, directly or indirectly, an
enemy or 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 States
or which has been made or obtained in contravention of
this Act,] or which has been entrusted in confidence to him
by any person holding office under Government, or which
he has obtained or to which he has had access owing to his
position as a person who holds or has held office under
Government, or as a person who holds or has held a
contract made on behalf of Government, or as a person
who is or has been, employed under a person who holds or
has held such an office or contract--
(a) willfully communicates the code or password,
sketch, plan, model, article, note, document or
information to any person other than a person to
whom he is authorised to communicate it, or a
court of Justice or a person to whom it is, in the
interest of the State, his duty to communicate it; or
(b) uses the information in his possession for the
benefit of any foreign power or in any other manner
prejudicial to the safety of the State; or
(c) retains the sketch, plan, model, article, note or
document in his possession or control when he has
no right to retain it, or when it is contrary to his
duty to retain it, or willfully fails to comply with all
directions issued by lawful authority with regard to
the return or disposal thereof; or
21 Cri. Writ Petition 1901.21.doc
(d) fails to take reasonable care of, or so conducts
himself as to endanger the safety of the sketch, plan,
model, article, note, document, secret official code
or password or information, he shall be guilty of an
offence under this section.
(2) If any person voluntarily receives any secret
official code or password 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,
password, 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.
(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 interests of the State, he shall be guilty
of an offence under this section.
(4) A person guilty of an offence under this section
shall be punishable with imprisonment for a term
which may extend to three years, or with fine, or
with both."
(emphasis supplied)
The provision states that if any person having in his possession or
control any secret official information which has been entrusted in
confidence by a person who has been obtained owing to his position
as a person holding office under the Government, willfully
communicates the information to any person other than the one to
22 Cri. Writ Petition 1901.21.doc
whom he is authorised to communicate, such person will be guilty of
an offence which is punishable for a term which may extend to three
years.
26. The Petition annexes the letter written by the Petitioner
as a Commissioner of State Intelligence Department to the Director-
General of Police. The letter is marked as Top Secret. The report
annexed is also marked as Top Secret. The letter written by the
Director-General of Police Mr. S.K. Jaiswal to Mr. Sitaram Kunte,
Additional Chief Secretary (Home), is also marked as Top Secret.
The FIR states that the Leader of Opposition in the live telecast
interview showed and read out the Top Secret letter written by the
Petitioner to the Director-General of Police and referred to the pen
drive recording the conversion between the police officer and some
private persons. Therefore, from the contents of the FIR and the
annexures to the Petition, it is clear that what was shown and
referred to is confidential and top-secret information. These
documents attract the provisions of Section 5 of the Official Secrets
Act. In that context, the provisions of the Official Secrets Act will
have to be noted.
27. We have not been shown any statutory provision that
the Leader of Opposition can be termed as the authority
contemplated under Section 5 of the Official Secrets Act by virtue of
23 Cri. Writ Petition 1901.21.doc
the post. As per the FIR, the document which admittedly marked
confidential falling within the purview of Section 5 of the Official
Secrets Act was found with the person not contemplated under
Section 5. Therefore it cannot be said at this stage that Section 5 of
the Official Secrets Act is not attracted at all in the FIR.
28. The Petitioner contends that there is no evidence that
the Petitioner was the source or did the Petitioner delivered any
document to the Leader of Opposition. According to the Petitioner,
the Petitioner communicated to the Director-General of Police
through the official channel, who further communicated it to the
Additional Chief Secretary (Home) through the official channel, and
the Petitioner had supplied two pen drives. The Petitioner wrote the
letter to the Director-General of Police on 25 August 2020. The
Petitioner was transferred on 2 September 2020 and did not have
any document or pen drive in possession. According to the
Petitioner, when the Petitioner was questioned on 19 and 20 May
2021, nothing was put to the Petitioner in this regard. Petitioner was
not confronted with the queries of removing the pen drive or the
data. The Petitioner left the Maharashtra for deputation to Central
Reserved Police Force on 11 February 2021, and there is absolutely
no evidence against the Petitioner. The Petitioner submits that thus
there is no case made out against the Petitioner in respect of the
offence under Section 5 of the Official Secrets Act.
24 Cri. Writ Petition 1901.21.doc
29. To a specific query to the Respondent-State, it was
informed to us that in the ongoing investigation, the Investigating
Officer has found that the confidential information was copied on
the three pen drives in the office of the State Investigation
Department. The information was copied on the three pen drives as
per the instructions of the Petitioner. After this secret information
was copied on three pen drives, they were handed over to the
Petitioner. Two of the pen drives were seized during the
investigation. According to the Investigating Officer, the third pen
drive and the official document is the one shown by the Leader of
the Opposition during his interview. The State has also informed
that the third pen drive and the document appear to have been
handed over by the Leader of the opposition to the Ministry of
Home Affairs, New Delhi. It is informed that the Investigating
Officer has requested the Ministry of Home Affairs for the
document and the pen drive on 3 May 2021, 12 May 2021, 7 June
2021, 23 September 2021 without any response from the Ministry
of Home Affairs.
30. During the hearing, the learned Counsel for the State
placed on record a copy of the Misc. Application No. 1856 of 2021
was filed in the Court of Additional Chief Metropolitan Magistrate,
37 Court, Esplanade, Mumbai. This application filed by the
25 Cri. Writ Petition 1901.21.doc
Investigation Officer of the Respondent - State prays for a direction
to the Ministry of Home Affairs to provide the documents and the
pen drive handed over by the Leader of Opposition for the
investigation. The Petitioner's statement recorded under Section
160 of the Code of Criminal Procedure placed on record. The
Petitioner was specifically asked by the Investigating Officer
regarding the copies of the confidential report prepared in August
2020, wherein the Petitioner had replied that there were only two
pen drives prepared. Therefore, the Investigating Agency is
investigating how the pen drives, which were not two but three and
the documents, went out of the official custody. Since the
Investigating Agency is proceeding to investigate on these lines, we
cannot hold at this stage reading the FIR no offence under Section 5
of the Official Secrets Act is made out, and no investigation is
necessary.
31. As an alternative submission, the Petitioner submitted
that even assuming that the Petitioner handed over a copy of the
document and the pen drive to the Leader of the Opposition, no
offence is made out under any of the provisions of the enactments
referred to in the FIR. The Petitioner contends that the official
document is secret only if its disclosure is prejudicial to the public
interest. The Petitioner relies on Section 8(2) of the Right to
Information Act, 2005 (RTI Act), which states that if the public
interest in disclosure outweighs the harm to the protected interests,
26 Cri. Writ Petition 1901.21.doc
notwithstanding anything contained in the Official Secrets Act,
access to the same may be allowed. The Petitioner relies on the
decision of the Delhi High Court in the case of Shankar Adawal v/s.
Central Bureau of Investigation3 to contend that merely because the
document is marked secret, its disclosure does not amount to an
offence if it is not prejudicial to the public interest. The Petitioner
also relies on the decision of the Supreme Court in the case of
Yashwant Sinha & Ors. v/s. Central Bureau of Investigation 4 to
contend that in the case such as the one at hand where the
surveillance data showed a large amount of corruption, and it was in
the public interest that it comes into the public domain, then the
Official Secrets Act cannot be invoked against the Petitioner. It is
contended that protecting the persons in official positions from
corruption cannot be said to be in the public interest. It was also
contended that the Supreme Court had taken a note of the report of
the Petitioner and the fact that it was in the public domain. The gist
of the Petitioner's argument is thus that in assuming the Petitioner
handed over the confidential document to the Leader of the
opposition, the Petitioner intended to expose the corruption in the
Police Department of the State and that action being in the public
interest it cannot be considered to be an offence under Official
Secrets Act in the light of the provisions of the RTI Act and the
decision of the Supreme Court in the case of Yashwant Sinha.
3 2019 SCC Online Delhi 9434
4 2019(6) SCC 1
27 Cri. Writ Petition 1901.21.doc
32. The Respondent-State has argued that Section 5 of the
Official Secrets Act is squarely applicable and that the petitioner is
misconstruing the provisions of the RTI Act. The Petitioner was
head of State Intelligence. The pen drives were in Petitioners
custody by virtue of Petitioner's post. Section 2(h) of RTI Act
defines "public authority". Section 3 thereof generally states about
Right to Information. Section 8(1) provides for exemptions where
Section 8(3) only speaks about public authority and not about any
person. Section 8(2) does not wipe out the Official Secrets Act. It is
only for the public authority to give information out in the public
domain that too after following the procedure, applications are made
under the Right to Information Act. The decision on the existence
of public interest is of the public authority and not any and everyone
in the organisation. The decision in the case of Central Public
Information Officer, SC of India vs Subhash Chandra Agarwal 5 of
the Constitution Bench and of the Supreme Court in Chief
Information Commissioner vs High Court of Gujarat & Anr. 6
clearly lay down that Right to Information Act does not override the
Official Secrets Act. It is not the law that anyone can give away
confidential information protected under Official Secrets Act. If it is
so as it would lead to anarchy. On these grounds, the Respondent-
State opposes the submissions of the Petitioner.
5 (2020) 5 SCC 481
6 (2020) 4 SCC 702
28 Cri. Writ Petition 1901.21.doc
33. Since the Petitioner has advanced a contention that no
offence is made out at all, we are called upon to decide this question
of law. However, we have to be mindful that we are not considering
a trial and only dealing with an absolute proposition that no offence
can be considered to be made out by reading of the FIR.
34. The RTI Act was enacted in the year 2005 to set out a
practical regime for the right to information for citizens to secure
access to information under the control of public authorities. Public
Authority is defined under Section 2 to mean any authority or body
or institution of self-government established or constituted under
the Constitution, by any other law made by Parliament or State
Legislature or established by notification by the appropriate
Government. It includes a body owned, controlled or substantially
financed and non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate
Government. The 'Public Authority' has to designate a Public
Information Officers under Section 5 of the RTI Act. Section 5
states that every Public Authority shall, within the time stipulated,
designate Public Information Officers to provide information to
persons requesting the information under this Act. Section 5(2)
contemplates setting up an appellate authority. The Public
Information Officer is empowered to deal with requests from
29 Cri. Writ Petition 1901.21.doc
persons seeking information and render reasonable assistance to the
persons seeking such information. Section 6 of the RTI Act Lays
down the procedure for requesting information. As per this
provision, a person who desires to obtain any information under this
Act has to make a request in writing or through electronic means
with accompanying such fee as may be prescribed to the concerned
Public Information Officer. Under Section 7 of the Act, the
concerned Public Information Officer either provide the information
on payment of such fee as may be prescribed or reject the request for
any of the reasons specified in Sections 8 and 9 as expeditiously as
possible. Section 8 of the Act deals with exemption from disclosure
of information, and it reads thus:-
8. Exemption from disclosure of information.-- (1)
Notwithstanding anything contained in this Act, there
shall be no obligation to give any citizen,--
(a) information, disclosure of which would
prejudicially affect the sovereignty and integrity of
India, the security, strategic, scientific or economic
interests of the State, relation with foreign State or
lead to incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State
Legislature;
30 Cri. Writ Petition 1901.21.doc
(d) information including commercial confidence,
trade secrets or intellectual property, the disclosure of
which would harm the competitive position of a third
party, unless the competent authority is satisfied that
larger public interest warrants the disclosure of such
information;
(e) information available to a person in his fiduciary
relationship, unless the competent authority is
satisfied that the larger public interest warrants the
disclosure of such information;
(f) information received in confidence from foreign
government;
(g) information, the disclosure of which would
endanger the life or physical safety of any person or
identify the source of information or assistance given
in confidence for law enforcement or security
purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other
officers:
Provided that the decisions of Council of Ministers,
the reasons thereof, and the material on the basis of
which the decisions were taken shall be made public
after the decision has been taken, and the matter is
complete, or over:
Provided further that those matters which come under
the exemptions specified in this section shall not be
disclosed;
31 Cri. Writ Petition 1901.21.doc
(j) information which relates to personal information
the disclosure of which has not relationship to any
public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the
State Public Information Officer or the appellate
authority, as the case may be, is satisfied that the larger
public interest justifies the disclosure of such
information:
Provided that the information, which cannot be
denied to the Parliament or a State Legislature shall
not be denied to any person.
(2) Notwithstanding anything in the Official Secrets
Act, 1923 (19 of 1923) nor any of the exemptions
permissible in accordance with subsection (1), a
public authority may allow access to information, if
public interest in disclosure outweighs the harm to the
protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i)
of subsection (1), any information relating to any
occurrence, event or matter which has taken place,
occurred or happened twenty years before the date on
which any request is made under section 6 shall be
provided to any person making a request under that
section:
Provided that where any question arises as to the date
from which the said period of twenty years has to be
computed, the decision of the Central Government
shall be final, subject to the usual appeals provided for
in this Act."
Section 8, therefore, lays down exemptions from disclosure of
information. Section 8(e) is an exemption regarding the information
32 Cri. Writ Petition 1901.21.doc
available to a person in his fiduciary relationship unless the
competent authority is satisfied that the larger public interest
warrants the disclosure. Section 8(h) relates to information that
would impede the investigation or apprehension, or prosecution of
offenders. Section 8(j) relates to personal information which can be
released to the authorities stipulated therein is satisfied that the
public interest justifies the disclosure. Section 8(2) that
notwithstanding anything in the Official Secrets Act nor any of the
exemptions permissible in accordance with 8(1) of RTI Act, a 'public
authority' may allow access to information, if public interest in
disclosure outweighs the harm to the protected interests.
35. The Petitioner has relied upon the decision of the
Supreme Court in the case of Yashwant Sinha, which was rendered
in a review petition. Three documents annexed to the review
petition which, as per the preliminary objection raised by the
Attorney General, were unauthorizedly removed from the office of
the Ministry of Defence, Government of India. It was contended by
the Attorney General that the review petitioner could not rely on the
provisions of Section 8 of the RTI Act. The three documents which
were the subject matter of the controversy were published in a
newspaper, and one of the documents was published by an online
media publication. The Supreme Court in that context referred to
the competing rights and observed in paragraphs 10 and 11 thus:-
33 Cri. Writ Petition 1901.21.doc
"10. Insofar as the Right to Information Act is
concerned in Chief Information Commissioner vs. State
of Manipur7this Court had occasion to observe the
object and purpose behind the enactment of the Act in
the following terms:
"The preamble (of the Right to Information Act,
2005) would obviously show that the Act is based on the
concept of an open society. As its preamble shows, the
Act was enacted to promote transparency and
accountability in the working of every public authority
in order to strengthen the core constitutional values of a
democratic republic. It is clear that the Parliament
enacted the said Act keeping in mind the rights of an
informed citizenry in which transparency of information
is vital in curbing corruption and making the
Government and its instrumentalities accountable. The
Act is meant to harmonise the conflicting interests of
Government to preserve the confidentiality of sensitive
information with the right of citizens to know the
functioning of the governmental process in such a way
as to preserve the paramountcy of the democratic ideal."
11. Section 8(2) of the Right to Information Act
(already extracted) contemplates that notwithstanding
anything in the Official Secrets Act and the exemptions
permissible under sub section (1) of Section 8, a public
authority would be justified in allowing access to
information, if on proper balancing, public interest in
disclosure outweighs the harm sought to be protected.
When the documents in question are already in the
public domain, we do not see how the protection under
Section 8(1)(a) of the Act would serve public interest."
7 (2011) 15 SCC 1
34 Cri. Writ Petition 1901.21.doc
In the concurring opinion rendered by K.M. Joseph J in paragraphs,
37 and 38 also referred to Section 22 and 24 of the RTI Act along
with Section 8. Section 8(2) of the Act is described as a legal
revolution wherein even Official Secrets Act would not stand in the
way for access to information.
36. However, as rightly pointed out by the learned Counsel
for the Respondent - State that the Supreme Court in Yashwant
Sinha has not laid down an absolute proposition of law that the
breach of Section 5 of Official Secrets of Act has ceased to be an
offence. The legal position emphasised in this decision is that
Section 8(2) of the RTI Act will operate if it is in the public interest
to do so. However, it is also emphasised that the information is not
to be given for mere asking, and the applicant must establish that
withholding such information will result in greater harm. In the case
of Shankar Advawal, the Delhi High Court, as a finding of fact,
found that the information therein was not protected under the
Official Secrets Act. Therefore, the said decision is not relevant to
the matter at hand.
37. In the case of the Chief Information Commissioner , the
Bench of three learned Judges of the Supreme Court observed that
Section 31 of the RTI Act repeals only the Freedom of Information
Act, 2002 and not other laws. If the legislature intended to repeal
any other Acts or laws that deal with disseminating information to an
35 Cri. Writ Petition 1901.21.doc
applicant, then the RTI Act would have specified so. In the absence
of any provision to this effect, the provisions of the RTI Act cannot
be interpreted to attribute a meaning to them which was not
intended by the legislature. Thus the breach of Section 5 of the
Official Secrets Act continues to be an offence.
38. The Constitution Bench, in the case of Central Public
Information Officer, considered the provisions of RTI Act and the
Official Secrets Act in a case that arose from release of information
relating to the judiciary wherein the larger conspectus of
independence of the judiciary was under consideration. For the
matter at hand, the observation of the Constitution Bench in
paragraph 35 are relevant:-
"35. Sub-section (2) to Section 8 states that
notwithstanding anything contained in the Official
Secrets Act, 1923 or any of the exemptions permissible
in accordance with sub-section (1), a public authority
may allow access to information if the public interest in
disclosure outweighs the harm to the protected interests.
The disclosure under Section 8(2) by the public
authority is not a mandate or compulsion but is in the
form of discretionary disclosure. Section 8(2)
acknowledges and empowers the public authority to
lawfully disclose information held by them despite the
exemptions under sub-section (1) to Section 8 if the
public authority is of the opinion that the larger public
interest warrants disclosure. Such disclosure can be
made notwithstanding the provisions of the Official
Secrets Act. Section 8(2) does not create a vested or
36 Cri. Writ Petition 1901.21.doc
justiciable right that the citizens can enforce by an
application before the PIO seeking information under
the RIT Act. PIO is under no duty to disclose
information covered by exemptions under Section 8(1)
of the RTI Act. Once the PIO comes to the conclusion
that any of the exemption clauses is applicable, the PIO
cannot pass an order directing disclosure under Section
8(2) of the RTI Act as this discretionary power is
exclusively vested with the public authority."
Thus, the Constitution Bench has referred to two essential
ingredients of Section 8(2). Firstly, it is not a mandate but a form of
voluntary disclosure. It permits the public authority to lawfully
disclose confidential information if the authority is of the opinion
that larger public interest requires disclosure. However, Section 8(2)
does not create a vested or justiciable right that citizens can enforce.
Secondly, reference is to the "public authority", and not any person
dehors the provisions of the Act. It is in this context that Section 8
needs to be seen. This Section provides for exemption from
disclosure of information. It states that notwithstanding anything
contained in the Act, there is be no obligation to give any citizen the
information of the categories listed in the Section. Section 8(2) does
not envisage that anyone and everyone can make confidential
information protected under the Official Secrets Act available to the
general public. Section 8(2) refers to a 'Public Authority' and the
officers specifically designated by the Public Authority under the
Act. The Petitioner admittedly is not the authority under RTI Act;
37 Cri. Writ Petition 1901.21.doc
neither information in question is routed through the provisions of
the RTI Act.
39. Further under Section 8(2) of the RTI Act, the Public
Authority is required to deliberate whether disclosure would
outweigh the harm of protected interest. These two competing
objectives will have to be balanced by the 'Public Authority'. Section
8(2) of the RTI Act also confers discretion on the 'Public Authority'.
As defined under Section 2(h), each of these Public Authorities
under the RTI Act have an infrastructure set up where the official
information is made available to the public in a designed manner.
The determination to make information protected under Section 5
of the Official Secrets Act available to the public has to be the
decision within the scheme of the RTI Act wherein competing
interests have to be evaluated on the criterion of the public interest.
It is not permissible for any andall persons to nullify the official
Secrets Act under the assumption that it would be in the public
interest to do so. The notion of public interest may vary from
individual to individual. That determination of existence public
interest is left under section 8(2) of the RTI Act to the authorised
officer of the Public Authority under the RTI Act. Giving a free
charter to leak confidential material at will is not envisaged under
Section 8(2) of the Act. The Petitioner, thus, cannot take any
38 Cri. Writ Petition 1901.21.doc
assistance from section 8(2) of the RTI and the argument of the
Petitioner based on this provision is rejected.
40. As stated earlier, we have not been shown any provision
of law that the Leader of Opposition would be covered under
Section 5(1)(a) of the Official Secrets Act. The decisions of the
Supreme Court relied upon by the Petitioner in the case of K.
Anbazhagan v/s. Superintendent of Police and Ors. 8 and E.
Sivakumar v/s. Union of India and Ors.9 does not lay down this
proposition. These decisions primarily underscore the importance of
the opposition members as watchdogs in a functional democracy.
This is an entirely different concept. These decisions do not lay
down a proposition of law that leaking confidential information to a
leader of opposition by anyone in official custody of the confidential
information would be saved under RTI Act and will not infringe the
Official Secrets Act. In any case, the Petitioner has not specifically
contended that the Petitioner has given the official secret documents
to the Leader of Opposition, and it is only a hypothetical submission.
There is no categorical stand before us that the Petitioner wanted to
and acted in the public interest in handing over the official secret
document and the pen drive containing the material from
interceptions to the Leader of Opposition as the Petitioner believed
that it was in public interest do so.
8. 2004(3) SCC 767
9 Spl. Leave Petition (Civ.) (Diary No. 17180/2019) dtd 18 May 2018
39 Cri. Writ Petition 1901.21.doc
41. The learned Counsel for the Respondent - State
submitted that even otherwise the assumption of the Petitioner that
handing over letter and pen drive would be in the public interest is a
fallacy. It is contended that the Petitioner's communication and the
report involving transcript of information, at the stage at which the
report was leaked, would alert those who are involved in the same
and secondly, it will cause a stigma on all transfers and the
functioning of the entire police machinery in the State and
demoralise police force irrespective whether guilty or otherwise.
This, according to the Respondent-State, is not in the public interest.
It was also contended that the Petitioner would be then not acting as
a crusader but as a politician.
42. To reiterate, the scope of the inquiry before us is only
to consider whether the FIR can be quashed. Section 8(2) of the
RTI Act has not obliterated Section 5 of the Official Secrets Act nor
has made it inoperative. The FIR does not disclose that
methodology under Section 8(2) of the RTI Act was followed. This
alternate argument of the Petitioner that it was in the public interest
to disclose confidential information is at the most a matter of
defence. Suffice it to state for the present discussion that Section
8(2) of the RTI Act does not mean that Section 5 of the Official
Secrets Act is removed from the statute book. The FIR does not
state that it was the public authority which gave the confidential
40 Cri. Writ Petition 1901.21.doc
information under the purview of the Official Secrets Act upon
deliberation.
43. The Petitioner contended that the Respondent - State is
taking a contrary stand. A report submitted by Mr Kunte, the
Additional Chief Secretary (Home), on 25 March 2021, stated that
there is no substance in the Petitioner's report. Also, during the
course of the hearing of Public Interest Litigation No. 6 of 2021 and
Others before the Division Bench of this Court, the Advocate
General informed that nothing of substance was found in the report
of the Petitioner. The statement of the learned Advocate General is
referred to in paragraph 40 of the Judgment of the Division Bench
dated 5 April 2021. The Petitioner submitted that once the State
takes a stand that there is no substance in this report, there should
not be any prejudice in disclosing the documents as it will not be
against the public interest. There would be no violation of Section 5
of the Official Secrets Act. It was contended that if Respondents
Nos.1 states that the report of the Petitioner had no value, then there
is no necessity to invoke the Official Secrets Act.
44. We find no merit in this submission. As rightly
underscored by the Counsel for the Respondent - State the FIR and
the present investigation is not about the contents of the Report but
upon the action of releasing an official document unauthorizedly.
As we have elaborated later, the FIR which is sought to be
41 Cri. Writ Petition 1901.21.doc
investigated is regarding the action of releasing a document
protected under the Official Secrets Act, and debate on the contents
thereof would be a complete diversion. The statement of counsel
regarding the Petitioner recorded in the order passed the Division
Bench in Writ Petition No.1903 of 2021 is a general statement and
cannot act as an estoppel against the Respondent-State in this regard.
45. Thus, we conclude that the Petitioner's contention that
the impugned FIR should be quashed as it does not disclose any
cognisable offence, and there is no need to investigate any further
cannot be accepted and is accordingly rejected.
46. Second ground under which the Petitioner has sought to
quash the FIR on the ground of vendetta and malafides. As held by
the Supreme court in the case of Bhajan Lal, an FIR can be quashed
where a criminal proceeding is manifestly attended with malafides
and where the proceedings were maliciously instituted with an
ulterior motive for wreaking vengeance on the accused to spite him
due to private and personal grudge.
47. The learned Counsel for the Petitioner submitted that
the FIR is that the Petitioner is falsely implicated. The invocations of
the provisions referred to in the FIR are misconceived and disclose
non-application of mind. Even though the FIR does not name the
42 Cri. Writ Petition 1901.21.doc
Petitioner, the Petitioner is kept hanging. In the other writ
petitions, statements are being made that the present FIR is against
the Petitioner. The Petitioner contends that since the Petitioner
intercepted various messages showing the corruption, the Petitioner
was transferred by subjecting the Petitioner in an entirely untenable
investigation. The Petitioner was immediately transferred to a post
that did not exist before and did not have any well-defined role and
duties. The Petitioner was transferred on 2 September 2020 and
released to the Central Government on deputation. One of the
people, whom the Petitioner has named as a broker, was a member
of the State Police Complaints Authority, subsequently removed,
which clearly shows an attempt to suppress the corruption that the
Petitioner sought to bring out. The FIR is filed to suppress the facts
unearthed by the Petitioner in her report. The Petitioner had taken
all the necessary permissions while collecting the information, and
there is no question of any illegal connection and dissemination of
information. The FIR is filed with vindictive motive since the
report of the Police Officer, which has offended the powerful
politicians. The report of the Petitioner is referred to by the
Division Bench of this Court in the PIL and in the order passed by
the Supreme Court. The Petitioner, in an official capacity with the
permission of senior officers, including the Chief Secretary, the
earlier Additional Chief Secretary, had collected the telephonic
conversations. The Petitioner had vacated her office upon transfer
43 Cri. Writ Petition 1901.21.doc
that too to a truncated post, which was the result of the revelation of
the Petitioner. The Petitioner had submitted a report to the
Director-General as a duty mandated her to do so, and the secrecy
was maintained. The investigation is a counterblast to intimidate a
honest Police Officer who has sought to expose a nexus of
corruption, and it is an act of vendetta. Such actions of the State
against the Police Officer who has exposed nexus between the
Ministers and others of corruption would demoralise the police
force. Such vindictive actions by the Respondent - State is nothing
but the abuse of the judicial process. The Petitioner contends that,
therefore, a fit case where the Court must step in and use its
extraordinary powers to prevent the miscarriage of justice and
harassment of the Petitioner against whom the FIR does not disclose
any offence, and it should be quashed as against the Petitioner.
48. Respondent - State counters this ground of challenge
contending as follows. It is not demonstrated as required in law as to
how the investigation is a malafide investigation. On the contrary,
the investigation is justified and needs to be conducted. No
argument is made is that the leakage of secret information should not
be investigated. The stand taken by the Petitioner is contradictory.
Firstly, the Petitioner states that the Petitioner has done nothing and
then contends that it is in the public interest. Since what is sought is
quashing of FIR, the well-settled law regarding parameters of
44 Cri. Writ Petition 1901.21.doc
quashing will apply, i.e. whether the FIR as it read makes out a
cognisable offence. The FIR should be read as it is, which is the legal
requirement, and it shows all the necessary ingredients. On these
grounds, the Respondent-State has opposed the contention of the
Petitioner.
49. We have considered that rival contentions on this
ground. First, the charge of malafides in a court of law needs to be
established as per the requirements governing the standards of proof.
The second aspect is the approach of the Court in respect of such
allegations when the court prima facie finds that cognisable offence
is made out and investigation is merited.
50. First, the aspect of legal standards of proof. As per the
law laid by the Supreme Court in the case of Bhajan Lal, the
Petitioner will have to show that FIR is "manifestly" attended with
malafides and someone has maliciously filed the FIR with an out of
private and personal grudge with an ulterior motive for vengeance
against the Petitioner. The Petitioner has argued malice in fact and
also shades of malice in law orally before us. Only the State of
Maharashtra is made party respondent in this regard. The Assistant
Commissioner of Police is joined by name only because he has
lodged the FIR. No personal malafides have been attributed to
Respondent No.2, who lodged the FIR. The third is the Central
45 Cri. Writ Petition 1901.21.doc
Bureau of Investigation. Who is wreaking vengeance against the
petitioner or has a personal and private grudge is left in the realm of
conjecture. The ground of malafides cannot be pleaded and argued
with casualness as it reflects on the credibility and reputation of the
investigating agency. That the Petitioner was transferred after
submitting the report could be two unconnected events, and from
that direct inference existence of malafides can not be drawn. After
that, the Petitioner was further transferred, and these are matters in
the realm of service law.
51. In the rejoinder arguments the Petitioner advanced a
contention that the two sitting Ministers of the State released the
contents of the Petitioner's report on Minister on 24 March 2021,
but they are not accused. It is argued that this shows malafides and
also that the documents were in the public domain. There is no
merit in this contention. Firstly this is done after the interview by
the Leader of the Opposition, and the FIR itself states that once the
material came into the public domain through the interview, it was
widely circulated. Secondly, an investigation is going on as to how
the material leaked. Whether the two Ministers released the report
or that the Leader of the Opposition did not read the Petitioner's
report are all matters of factual inquiry and investigation. It is not
possible for us at this stage to draw any definite conclusion. The
Petitioner's attempt is to call upon this Court to render factual
46 Cri. Writ Petition 1901.21.doc
findings at this stage when the investigation is ongoing, which is not
possible to do.
52. In the case of Sanapareday Maheedhar Seshagiri v. State
of Andhra Pradesh10, the Supreme Court observed that the High
Court should not go into the merits and demerits of the allegations
simply because the petitioner alleges mala fides against the author of
the FIR or the complainant. The High Court should also refrain
from making an imaginary journey in the realm of conjectures to in-
vent grounds to pass the orders which would interfere with the in-
vestigation. Therefore if the allegations in the FIR disclose that a
material protected under the Official Secrets Act was unauthorizedly
leaked, then it cannot be said that there are any malafides in
investigating the cognisable offence. The Constitution Bench in the
case of Sheonandan Paswan v. the State of Bihar,11 observed that
FIR, which is justifiable and based upon adequate evidence, does not
become vitiated on account of mala fides or political vendetta of the
first informant or the complainant. The Supreme Court in the case
of State of A.P. v. Golconda Linga Swamy12 held that when the in-
formation is lodged at the police station and offence is registered,
then malafides of the informant would be of secondary importance.
10 (2007)13 SCC 165 : AIR 2008 SC 787
11(1987) 1 SCC 288, 318 : [1987] SCC (Cri) 82
12 (2004) 6 SCC 522 : AIR 2004 SC 3967
47 Cri. Writ Petition 1901.21.doc
The material collected during the investigation and evidence led in
the court that decides the fate of the accused.
53. Once we find that the FIR discloses cognisable offence
and merits investigation, then quashing the FIR against the
Petitioner would directly interfere with the investigation. The
Respondent - State has contended that statements have been
recorded during the investigation, wherein it is stated that the Peti-
tioner had created three pen drives. Two have been recovered, in-
cluding the one sent to the Director-General of Police, but one pen
drive is not traceable. The Leader of the Opposition had a pen drive
with around 6.0 GB of data. According to Respondent - State, the
third pen drive was handed over by the Leader of Opposition to the
Ministry of Home Affairs. The State is trying to get the pen drive
from the Ministry of Home affairs. If it matches, then it is apparent
who has done the leak and, if it does not match, it will be by some-
body else. In the application under Section 91 of Cr.P.C. Home
Ministry is asked to give the pen drive, and since there is no re-
sponse, an application is filed to the Court of 37 Metropolitan Mag-
istrate's Court, bearing No.1856/2021. It was contended that even
though, as of today, the Petitioner is not a named accused, there is
material against the Petitioner, and no statement can be made that
the Petitioner will not be made accused. It was also contended that
the Petitioner was at the very centre of the incident, and quashing
the FIR qua the Petitioner would directly and materially affect the
48 Cri. Writ Petition 1901.21.doc
investigation. Having considered the arguments, we cannot hold
that these submissions of the Respondent-State are meritless.
54. The position in law is that the High Court should be ex-
tremely cautious about interfering with the investigation and should
not stall the investigation unless it is convinced beyond any manner
of doubt that FIR does not disclose any commission of an offence,
and it is highly detrimental to the public interest. That is so because
it is the duty of the police officer to investigate to collect evidence to
prove the offence. Thus the Court should be circumspect in passing
such orders that would entail delaying completion of the investiga-
tion. In the case of State of Bihar v. J.A.C. Saldanha 13, the Supreme
Court observed that the executive is charged with a duty to keep vig-
ilance over law and order situations is committed to its bounden
duty to investigate the office.
55. Thus, regarding the first prayer, having examined the
facts of the cases, the contention of the parties and dicta of the
Supreme Court culled out above, we find no ground is made to
quash the FIR in the extraordinary jurisdiction of this Court.
56. Now we come to the second prayer of the Petitioner that
is for the transfer of investigation to the Central Bureau of
Investigation.
13 (1980) 1 SCC 554
49 Cri. Writ Petition 1901.21.doc
57. Regarding the prayer for transfer of investigation is
concerned, which is an alternate prayer, we have perused the
grounds taken in the Petition. Grounds (F), (G) and (H) deal with
the same. Ground (F) of the Petition stated that the CBI is
investigating the offence regarding the transfer of police officers and
the documents from the State Government including confidential
and therefore, the investigation be handed over to the Respondent -
CBI (wrongly referred to as Respondent No.4 instead of 3). In-
ground (G), it is stated that there cannot be two FIRs on the same
transaction. In-ground (H), it is stated that the Division Bench of
this Court had disposed of the PIL directing the Respondent - CBI
to consider the allegations in respect of undue influence regarding
posting and transfer of police force. These is the pleading in respect
of transfer of Investigation.
58. The Petitioner's oral contention for transfer of
investigation is based on two counts. Firstly, the present
investigation by the Respondent-State is malafide and out of
political vendetta, and therefore, it needs to be handed over to the
CBI. The learned Additional Solicitor General submitted that if the
Petitioner is right in contending that the present FIR is a
counterblast to the investigation by CBI, then it is a worrisome
aspect. The learned ASG also contended that the investigation
should be fair, and if action is motivated and is a counterblast, then
50 Cri. Writ Petition 1901.21.doc
such investigation cannot be stated to be a fair investigation. The
learned ASG contended that the CBI is ready and willing to take
over the investigation if directed by this Court.
59. The Respondent - State has relied upon the decision of
the Constitution Bench in the case of State of West Bengal Ors. v/s.
Committee for Protection of Democratic Rights, West Bengal &
Ors.14 to contend that though the High Court has the power to
transfer the investigation to the Central Bureau of Investigation from
the State government without the State government's consent, this
power should not be in a routine manner and exceptional
circumstances and no such circumstances exist in this case.
Secondly, the transfer of investigation is not as per a person's choice.
The transfer of investigation by taking it out of one agency to entrust
it to another has serious implications, and the Court would not
readily transfer the investigation from one agency to another.
60. The Supreme Court, in the case of Committee for
Protection of Democratic Rights, while holding that the High Court
has power under Article 226 of the Constitution of India to transfer
investigation from the State machinery to the Central Bureau of
Investigation, has underscored the need to keep in mind self-
imposed restrictions. The observations of the Supreme Court in
paragraph 70 of the Report are a caution against the ready exercise
14 2010(3) SCC 571
51 Cri. Writ Petition 1901.21.doc
of the power by the High Court. The Supreme Court observed that
despite wide powers conferred Article 226 of the Constitution,
while passing any order, the High Court must bear in mind certain
self-imposed limitations on exercising these Constitutional powers.
The power under the said Article 226 requires great caution in its
exercise. On the aspect of issuing a direction to the CBI to conduct
an investigation, the Supreme court observed that it is time and
again reiterated that such an order is not to be passed as a matter of
routine or merely because a party has levelled some allegations
against the local police. This extraordinary power must be exercised
sparingly, cautiously and in exceptional situations.
61. Transfer of an investigation from one agency and entrust
it to another on the ground of lack of fairness has to be directed with
circumspection and not because there is some vague, unsupported
suspicion. On the first ground for the request for transfer that the
investigation is malafides and out of vendetta, we have already
recorded our opinion that no such case is established by the
Petitioner. The Petitioner has not made any case that the
investigation pursuant to this FIR lacks credibility or does not
inspires confidence. It cannot be said the FIR does not disclose a
cognisable offence. That being the position the state police
machinery is investigating as they are duty-bound to do. Thus this
cannot be a ground for seeking transfer of investigation.
52 Cri. Writ Petition 1901.21.doc
62. The second and main argument of the Petitioner that
since CBI is already considering the broader set of events relating to
FIR registered against Mr. Anil Deshmukh, (Ex-Home Minister of
the State) and Others, based on the content of the report of the
Petitioner, the present investigation being directly connected with it
should be transferred to the respondent CBI the Investigation.
Secondly, the investigation in respect of the central incident that is
interconnected with the present FIR is already under investigation of
the CBI. The Petitioner contends that the Central Bureau of
Investigation is already investigating the matter in respect of police
transfers, which was approved in the order passed in Writ Petition
No.1903 of 2021 by the Division Bench of this Court on 22 July
2021, and it will be appropriate if the CBI investigates the present
FIR as well. The learned ASG contended that the Central Bureau of
Investigation has already carried out a substantial investigation into
the aspect of corruption regarding police transfers, and the CBI
investigation should not be permitted to be affected. The ASG
reiterated that if the Court concludes that the investigation is to be
transferred to the Central Bureau of Investigation, the CBI is ready
to take over the investigation.
63. The Respondent-State responds that the investigation
by the CBI in the FIR registered against Mr. Deshmukh and others
based on contents of the Petitioner's report is different from the
53 Cri. Writ Petition 1901.21.doc
investigation of the present FIR. The short question in this
investigation is how the confidential information leaked. Therefore,
there is no connection with the investigation carried out by the CBI
regarding the investigation as to the transfers of police officers. Even
if the transfers were ultimately found to be a product of corruption,
the leak of sensitive information illegally would still continue to be
an offence. On this ground, the Respondent-State opposes the
prayer.
64. The Division Bench of this Court, while considering the
Writ Petition No.1903 of 2021 filed by the State of Maharashtra to
quash the unnumbered paragraph 5 of the FIR dated 21 April 2021,
referred to the report of the Petitioner. The observations of the
Division Bench relevant for the matter at hand are as under :
"82. Mr. Dada expressed an apprehension that a roving
inquiry into the transfer and posting of all officers may have a
demoralising effect on the police force. The apprehension on
the part of the State apparently stems from the impression that
all the transfers and postings may be put in the dock. In our
view, the aspect of transfer and posting of police officers,
referred to in 5th unnumbered paragraph of the FIR is
essentially linked to the allegations of abuse of official position
by the then Home Minister and his confederates.
83. The investigation agency can, in our view, legitimately
inquire into the aspect of transfer and posting of police officers
so also reinstatement of Shri Vaze after 15 years, to the extent
those transfers and posting have the nexus with the offences
alleged against the then Home Minister and his associates
54 Cri. Writ Petition 1901.21.doc
keeping in view the observations of the Division Bench in the
order dated 5th April 2021. Conversely, the order of the
Division Bench cannot be construed as giving unfettered
authority to CBI to inquire into the transfer and posting of the
police officers generally, which do not reflect upon the alleged
acts and conduct expressly attributed to the then Home
Minister and his alleged confederates and the resultant
offences.
84. ...
85. By way of abundant caution, we clarify that the
observations hereinabove have been made for the limited
purpose of adjudicating the challenge in the present Petition
by the State and the same will have no bearing on the
determination of Writ Petition No. 1902 of 2021 (Param Bir
Singh s/o Hoshiyar Singh Vs. The State of Maharashtra &
Ors .), Writ Petition No. 1843 of 2021 ( Param Bir Singh s/o
Hoshiyar Singh Vs. The State of Maharashtra & Ors.), Writ
Petition No. 1901 of 2021 (Rashmi Uday Shukla Vs. The
State of Maharashtra & Ors. ) and Writ Petition No.1934 of
2021 (Rachana Ravindra Bhoir Vs. The State of Maharashtra )
which are pending consideration before this Court and they
shall be on their own merits."
(emphasis supplied)
Thus, the Division Bench held that the transfers and postings of the
Police Officers referred to in unnumbered paragraph 5 are linked to
the allegation of abuse of official position by the then Home
Minister and others. The Bench clarified that its and the earlier
orders of this Court are not to be construed as unfettered authority
to CBI to inquire into transfers and postings of the Police Officers
generally, which do not reflect upon the alleged act and conduct
55 Cri. Writ Petition 1901.21.doc
expressly attributed to the then Home Minister and others. After
clarifying the same, the Division Bench reiterated that the present
Writ Petition, which was pending, would be decided on its own
merits.
65. We find merit in the contention of the Respondent -
State that two investigations are two different. The complaint in the
present FIR is of an unauthorised leak of the official secret
documents. It may be that the investigation based on the truth or
veracity of the contents of the documents will lead to a different
result. However, it is a different investigation to ascertain how and
whether official secret documents were leaked. Even if the contents
of the documents are true and correct, the illegal leakage of the
official document will still constitute an offence. Thus, the alleged
offence concerning the illegal handling of the official confidential
document is different from the investigation carried out by the CBI
in respect of FIR dated 21 April 2021. It is separate from the
present FIR, and the outcome of both the investigation need not
depend on each other. The Division Bench of this Court has
already made it clear that all aspects of police transfers are not
handed over to the CBI to investigate. Therefore, no ground for
transfer is made out to transfer the investigation, and the second
prayer made in this petition is rejected.
56 Cri. Writ Petition 1901.21.doc
66. The FIR was lodged on 25 March 2021. As of today, the
petitioner is not named in the FIR. We are informed that the
petitioner is currently serving in the State of Telangana and is
holding an important post. In these facts and circumstances, we are
of the opinion that the Petitioner is entitled to the protection of
advance notice of seven working days in case the Respondent State
intends to take any coercive steps against the Petitioner.
67. To conclude, the impugned FIR prima facie discloses
cognisable offences. Since the FIR discloses a cognisable offence, the
police have a duty to investigate. No ground is made out to quash
the FIR and to prevent any further investigation. The prayer for
transfer of the Investigation to CBI on the ground that the CBI is
investigating the postings of the Police Officers is without merit as
both the investigations are different. Even if the contents of the
Petitioners report are found to be correct, the alleged illegal leakage
of official documents will nevertheless constitute an offence, and this
will not depend on the result of the investigation conducted by the
CBI. Thus, the prayers for quashing the FIR and for the transfer of
investigation to the CBI are rejected. However, considering the facts
and circumstances, if the Respondent - State proposes to take any
coercive steps against the Petitioner, the Respondent - State will give
advance notice of seven working days to the Petitioner.
57 Cri. Writ Petition 1901.21.doc
68. As a result, both the prayers that is for quashing of the
FIR and for the transfer of investigation are rejected. However, if
the Respondent - State intends to take any coercive steps against the
Petitioner, the Respondent - State will give advance notice of seven
working days to the Petitioner.
69. The Writ Petition is accordingly disposed of. Rule
discharged.
SARANG V. KOTWAL, J. NITIN JAMDAR, J.
Digitally signed
JYOTI by JYOTI PRAKASH PRAKASH PAWAR PAWAR Date: 2021.12.15 14:56:57 +0530