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TMI Blog1991 (10) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been the contention of the Accused that the reason for this contest is because the Prosecution was motivated and that the viciousness with which the proceedings continued right up to the present stage was because of an element of personal vendetta. I shall have occasion to make my observations with regard to these aspects of the case in the course of the judgment because they are relevant. Normally, there would have been no reference to this aspect at the initial stage of the judgment, but there appears a degree of justification in this charge and it is for this reason that it is being referred to by me. 2. Coming first to the background and the relevant facts. The Accused before me, Dr. B. K. Subbarao, is a senior member of the Armed Forces having joined the Indian Navy on 15-7-1962 as a Sub-Lieutenant and having finally parted company with the Navy on 27-10-1987 when he opted for premature retirement, at which time he was holding the rank of a Captain. There are references on record to indicate that the Accused followed up a brilliant academic career with an even more distinguished service record in the course of which his talents and expertise and proficiency in the fiel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n camera and the leaned Magistrate thereafter committed the case to the Court of Session. 3. The Accused, when he was produced before the learned Magistrate on 31-5-1988 itself, made an application that he should be released on bail and it also appears that thereafter the Accused filed a detailed application before the Court on 13-6-1988 in which he contended that the authorities who had arrested him have wrongly proceeded against him on the assumption that he had committed infringements of the Official Secrets Act and the Atomic Energy Act; whereas, according to him whatever documents he is alleged to have been carrying, at their face value, could never justify such a charge. I need to mention one extremely curious aspect of this litigation which is that the documents, which I shall describe presently and which from the subject-matter of the charges, do bear a description which at first blush would give the impression that they are of an extremely secret and confidential nature connected with the Armed Forces and the Atomic Energy installations and that, consequently, ipso facto they would be covered by these two statues. It is unfortunate that in the course of the litigation whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Prosecution has got away with this is some achievement. 4. The Accused, as indicated by me, was arrested on 30-5-1988, and his application for bail was rejected on the ground that he is involved in very serious charges of espionage. This position continued from Court to Court. because on every occasion when the accused applied for bail, it was strongly opposed by the prosecuting authority on the ground that the offences are of a grave nature and that they are punishable with imprisonment for 14 years and, furthermore, that the very nature of the offences, which involved spying, were such that the Accused was disqualified from being released on bail. The record before me indicates that the Accused was refained in custody in different jails, both within the city of Bombay and outside. After a couple of months, it appears that the health of the Accused broke down. It is his case that contrary to the directions of the Courts in this country, he had been handcuffed and was being transported in a van from Nashik to Bombay and that in the course of this he sustained serious back at one point of time it appeared that his life was in danger. Without going into the nature or gravity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause if he seriously felt that the Court would at some time consider his plea he was certainly entitled to repeat his prayer for bail any number of times while he was in custody. Puranik, J. through a short order dated 6-6-1989 recorded the fact that statements had been made on behalf on the Prosecution by the learned Public Prosecutor and that a certain explanation had been tendered and that, consequently, no action for contempt etc. was warranted. Puranik, J. has also said in the order that having regard to what has been submitted by the Prosecution in respect of the merits of the case that he was not inclined to release the Accused on bail and, therefore, rejected his bail application. The group of petitions before Puranik J. was fully argued and adjourned c.a.v. on 6-3-1989 and it so happened that the learned Judge finally passed ordered only 6-6-1989. The condition of the Accused, who was in Jail, having taken a turn for the worse, he filed another petition in April, 1989 praying for release on medical grounds alone. These facts were totally suppressed by the State Counsel from the Supreme Court and a downright false allegation was made that the second petition was filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was a mere coincidence that Puranik, J. had disposed of a group of petitions before him on 6-6-1989. I am not prepared to accept the explanation put forward before me by Mrs. Manjula Rao that the misstatements before the Supreme Court were inadvertent. When an initial attempt was made by her to deny the falsity of the statements, I had to confront her with the relevant pleadings and the fact that even in Delhi, it was she who had instructed the Counsel. The vehemence and the militancy with which the preceeding was being conducted at that point of time leave no manner of doubt in my mind that deliberately false statements were made before the Supreme Court in the absence of the Accused and his Counsel for the purpose of staying the order of Suresh, J. if the Prosecution desired to be unfair to the Accused, they could have at least had the goods grace to spare the learned Judge of this High Court who had passed, to my mind, a perfectly correct and valid order in the circumstances. 7. The situation was compounded thereafter because the Supreme Court desired to hear the Accused in this case and, therefore, notice was issued to him, at which time the Accused expressed his desire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench of this Court in one of such proceedings, after the charges had been framed, directed the learned Sessions Judge before whom the matter was pending to reconsider the charges and Judge Patel on a reconsideration of the materials before him dropped the charges under Section 3 of the Official Secrets Act and held that only a charge under section 5 of the Official Secrets Act was maintainable. Against this order, the Prosecution came in revision before a single Judge of this High Court. The Accused at the Same time filed a composite petition under section 482 of the Code of Criminal Procedure, 1973, wherein he once again substantially repeated what he had been pointing out again and again, namely that according to him there was no material that according to him there was no material on the basis of which any charge could be framed. Both the petitions came to be heard and disposed of by my brother Aggarwal, J. The learned single Judge, Aggarwal, J., upheld the Prosecution contention that the Court of Session did not have the jurisdiction to reconsider the charges that had earlier been framed on 24/27th February, 1989. A reading of Aggarwal, J.'s order indicates that whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y his predecessors when the State got the charges altered. The reply given was the that the Prosecution had never asked for the addition of the charges under section 5 of the Official Secrets Act and that the learned of the single Judge had directed the incorporation of this charge principally because at one stage Counsel on behalf of the Accused had himself contended that at the highest the charge may be one under section 5, but under no circumstances could it be under section 3 of the Official Secrets Act. This was a weak attempt to cover up for the earlier lapses of his colleagues and which is totally unacceptable. Even so, to my mind, after the order was passed, it was open at any stage for the Prosecution to have come back to the learned Judge and placed before him this difficulty and to have obtained appropriate modifications. However, for some reason, this was not done, even thought the Prosecution has an opportunity of doing so and, therefore, to-day it may not be open to the Prosecution to take shelter behind this lapse. Either the Prosecution could have appealed against the judgment or, as pointed out by me, appropriate directions could have been obtained from the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat matter this Court will be guided by the observations made by the learned Judges of the Division Bench is a matter that is not in dispute, but what needs to be emphasised is that the tenor of the judgment does indicate that the Division Bench was satisfied that both these issues were one of substance and that they require to be examined before trail could proceed any further. The learned Judge correctly observed that these are issues which go to the root of the matter and that, consequently, they had to be decided on a priority basis. On remand, the learned Sessions Judge, Ghare, J., after hearing the parties and examining the record before him, by his judgment dated 26th April, 1991, upheld the first contention which was to the effect that sanction under section 197 of the Code of Criminal Procedure was condition precedent and in the absences of such sanction discharged the Accused. Ghare, J. has also examined a few of the incidental issues, in passing, and I shall deal with only such of those as are relevant for the purpose of this judgment. It is against this judgment that the present Criminal Revision Application has been filed. 11. My learned brother Shah, J., who admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsidiary challenge which has been canvassed and which is to the effect that the order of the learned Judge is dated 26-4-1991 and that an application was presented to the High Court on 29-4-1991 prior to 30-4-1991 which is the date when the State Government passed a resolution authorizing the filing of the present proceeding and that, consequently, the application for stay, which is Criminal Application No. 921 of 1991, ought to be dismissed for want of Jurisdiction. 13. Mr. Vakil, the learned Senior Counsel representing the State of Maharashtra, has pointed out to me that the State of Maharashtra is the authority which is invested with the function of the conduct of the prosecution and that this authority, according to Mr. Vakil, would include the authority to take further necessary steps in the proceedings. As regards the second objection, Mrs. Manjula Rao, the learned Special Public Prosecutor, has pointed out that the application was preferred on an urgent basis because the Prosecuting Authority genuinely felt that the documents were of such a type that they ought not to be returned and, therefore, urgent orders were prayed for after orally obtaining the sanction of the Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments, to go through all the material, namely, the statements and documents that from the subject-matter of the record. I have not opened the sealed envelopes containing the original document because, to my mind, that is unnecessary in the view that I propose to take. I would, however, like to record that the criticism against the Investigating Officer is without justification. One needs to take into account the fact that one of the documents in this case relates to the year 1971 and another document relates to the year 1986 and some of the other documents do not bear any specific date. These are documents relating to different departments, and after this long lapse of time, it would be extremely difficult for any investigating authority to be able to dig into the records and files and locate persons who might have personal knowledge of the facts and circumstances of the case. After scrutiny of the record, I am more than satisfied that Mr. Sawant has done a reasonably good job, having regard to the time factor and having regard to the resources at his control. He has contacted whichever of the officers or person he could do. He has tried to get whichever of the documents and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was sought to be tendered by Mrs. Manjula Rao that the application was made is another Court because that Court was normally dealing with petitions under section 482 of the Code of Criminal Procedure. Mrs. Rao was at a total loss when I requested her to put forward any valid justification for what had been done and, in particular, the type of petition that had been presented to the learned single Judge by Mrs. Rao who had herself appeared before the Division Bench when it had approved of the application made by the Accused. Counsel cannot be said to have acted honestly in suppressing this vital fact and instead relying on a series of false statements obviously with the intention of prejudicing the Court behind the back of the Accused and snatching an ex parte order. Technically, the Prosecution Counsel may attempt to cover up for what has been done, but that this was fraud on the Court, a sharp practice and one that ought not to have been indulged in is an understatement. It is unfortunate, but it is equally necessary to record some of these incidents because they will have a direct bearing on the decision of one aspect of this case, namely, the degree of fairness, or lack of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security of any country that stringent provision be made in respect of any act or attempt that may endanger the safety or interest of the country. What follows, therefore, is that the basic ingredients for any charge under the Official Secrets Act is that the investigation must disclose from very cogent fact placed before the Court that the purpose for which the secret material was obtained or retained or carried or disposed of was directed or prompted by an objective that was prejudicial to the safety and interest of the State. In addition, where the charge is that such material was intended to be misused, this last aspect has to be borne out from material elicited in the course of investigation. Even in a criminal proceeding of the present type where the consequences to a person charged under the Official Secrets Act are extremely grave, it is condition precedent that a scrutiny of the totallity of the material placed before the Court must justify all the aforesaid ingredients. 17. The second statute under which the present Accused stands charged is the Atomic Energy Act, 1962. This Act is basically concerned with different aspect of the production, development, use and disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of your employment in Indian Navy to study the feasibility of nuclear power, propelled submarine vessel along with a team of Officers from BARC (Bhabha Atomic Research Centre) and that you joined the said project in 1976 and was associated with them till 1983 and that in 1984, you were placed an officer in charge of 'Defence Technology Adaptation Centre' vide Naval Headquarter's letter No. EE/1460 dt. 25-4-84 and that you proceeded on premature retirement with effect from 27-10-87 i.e. till then you have been in the course of employment of Indian Navy, which is part of the Ministry of Defence and during the course of this, you have been in communication with foreign agents within or without India and for a purpose prejudicial to the safety or interest of the State you obtained and collected top secret and secret official documents and informations in the form of (1) 90 MWT Nuclear Submarine Propulsion Plant Design (Salient features and design software), a top secret document, (2) Multi Point Satelite Links in Navnet (System Design) a confidential document, (3) Copy No. 5 of Project Report on Nuclear Propulsion for Marine Application, prepared under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id Serving Identity Card, you were guilty of an offence punishable under section 6(2)(a) of the Official Secret Act and within the Cognizance of this Court. FOURTHLY : That by taking with you the information in the form of books mentioned above on 30-5-88 pertaining to Atomic Energy the information which you had obtained illegally and were taking to U.S.A. and the said information according to section 20(7) of Atomic Energy Act was the property of Central Government and the disclosure of which was restrained/restricted, which you tried to disclose by obtaining the said information in the form of books and which have been restricted under sub-section (1) of Section 18 and by doing so, you contravened the order dt. 4-2-75 under sections 18(2) and 19 of Atomic Energy Act passed by the Central Government, and by doing so, you committed an offence punishable under sections 24(1)(d) and 24(2)(d) of the Atomic Energy Act and within the congnizance of this Court. FIFTHLY & ALTERNATIVELY : That while working as Captain in the Navy and being on deputation with B.A.R.C. during 1976 to 1983 you were dealing with classified subjects and had control over Secret and Top Secret official document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sanction under section 197 of the Code of Criminal Procedure. It is necessary for me to observe here that in the present proceedings, Mr. Vakil has produced before me the relevant authorisation orders and he has pointed out that the Investigating Officer, Mr. Sawant has complied with the requirements of law in obtaining the authorisation from the Central Government and from the Attorney General. Dr. Subbarao's contention essentially hinges around the two-fold legal submission, the first of them being that the order signed by a particular officer of the department is, according to him, not a valid authorisation of the Central Government and the second contention is that the authorisation issued by the concerned officer for offences under Ss. 3 and 6 and 6 of the Official Secrets Act and other cognate offences does not and cannot cover an offence under Section 5 of the Official Secrets Act. I shall, briefly, deal with these contentions that have been raised because the Division Bench itself in its directions had enjoined upon the learned Sessions Judge to record positive findings in relation to these heads and a review of the order of the Sessions Judge would necessarily requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. As against this, Dr. Subbarao has submitted that we have on record orders from judicial authorities of this Court and the Sessions Court drawing a specific distinction between the various forms or types of offences, all of which may be punishable under this statute. He, therefore, submits that even if this authorisation were to be valid in respect of the offences under sections 3 and 6 of the Official Secrets Act, since it has been judicially held that the offence under S. 5 of the Official Secrets Act is an offence of a distinct and different type that it is not covered under the authorisation. 20. One does not require to test the validity of the argument of Mr. Vakil because I propose to accept it, but if one accepts the argument of Mr. Vakil, then necessarily the authorisation has to be restricted to offences that come within the definition of cognate or, in other words, offences of a similar type which by implication necessarily excludes offences under S. 5 of the Official Secrets Act. Furthermore, on an examination of the authorisation order, it is clear that the authority who issued this order did not authorise the filing of complaints in respect of all such offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he has granted the authorisation on his behalf or on behalf of the department which he represents. Unless it is made specific in the authorisation that it has been issued for and on behalf of the Government which the officer represents, according to Dr. Subbarao a Court would not be justified in holding that the authorisation has come from the Government. Countering this submission, Mr. Vakil pointed out that if one is to regard the head of the Central Government as the President of India, it would be absurd to expect that every authorisation letter will have to be signed by the President. He submitted that it is for this reason that under the rules of business, powers are delegated to different officers who, after obtaining the requisite Government approval, accord letters of sanction or authorisation. To this extent, the submission of Mr. Vakil is correct because both the Central Government and the State Government under the rules of business do function and are required to function in this manner. It is, however, necessary to take note of the fact that in all those cases where the officer is exercising the authority of the Government, it is specified in the order that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act. He refers to the D.O. Letter from the authority who has issued the authorisation from the Department of Atomic Energy and to certain enclosures that were forwarded along with that letter. The learned Attorney General uses the term "I am satisfied that this is a fit case in which I should give my consent for the proposed prosecution of Shri. B. K. Subbarao ........" As the highest Law Officer of the Government, the learned Attorney General obviously looked at the correspondence that was placed before him, but what needs to be mentioned once again is that in a prosecution of the present type, where everything hinges on the nature and character of the documents in question without having forwarded the incrimination documents to the learned Attorney General, it is difficult to see how correct the authorisation letter can be regarded. The reason for it is that, to my mind, it was absolutely essential, particularly for a legal authority who was evaluating a serious question relating to prosecution, to have asked for the offending documents to have been produced before him and to have looked at them before according sanctions. It needs to be mentioned that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oming now to the main issue on which the Division Bench dealt at considerable length and to which point the greater part of the judgment of the learned Additional Sessions Judge is devoted, namely, the fundamental question as to whether sanction under S. 197 of the Code of Criminal Procedure was necessary for the institution of the present prosecution or not. I need to reiterate that a perusal of the Division Bench judgment, and in particular the concluding part of that judgment, conveys the unmistakable impression that after a very protracted, detailed and incisive examination of the law and the record, the Division Bench came to the prima facie conclusion that sanction was necessary for the prosecution of the accused in the present case. The paradoxical question arose as to why then did the Division Bench refer the matter to the learned Additional Sessions Judge ? It is obvious that the Division Bench did not treat these observations as findings and still left the matter open for a final decision to the learned Additional Sessions Judge because both the prosecution and the accused were represented before him and mainly because it is a mixed question of fact and law and, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative intent that this is a protection conferred for a special purpose and that the Court will not be justified in holding that the protection cannot be availed of by a person belonging to that category unless it is specifically demonstrated that the protection is not available. Mr. Vakil, learned counsel appearing on behalf of the State, submitted that the offences alleged against the accused in the present case relate to a set of documents which Mr. Vakil stated is of a classified category and which, according to him, could not have been taken away or retained by the accused even while he was a member of the Armed Forces and even if he was still a member of the Armed Forces. Mr. Vakil further submitted that the prosecution has not sought to proceed against the accused in relation to anything done by him during the period when he was a Naval Officer, but that the charge relates exclusively to what was discovered by the police authorities on 30-5-1988 and in their sub-sequent investigations. Mr. Vakil, therefore, submits that it could never be argued by the accused that the limited set of acts for which he has been placed on trial by the prosecuting authorities before the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Naval Officer and the knowledge gathered by him at the time when he was functioning in that capacity. In the light of this background, the remaining submissions advanced by the prosecution will require some sort of detailed examination. Wednesday, October 9, 1991 29. Going back once again to the heads of charge, I shall briefly deal with the factual aspect that is recounted in each of the five charges. The first charge, which consist of one continuous sentence which spans at least three pages, start with the statement regarding the accused having joined the Indian Navy in 1963 and recounts briefly his career until his premature retirement on 27-10-1987 and thereafter proceeds to state "till then you have been in the course of employment of the Indian Navy, which is part of the Ministry of Defence and during the course of this you have been in communication with foreign agents ......" At the end of this laborious narration, we have the operative part of the charge alleging offences under section 3(1) of the Official Secrets Act. In substances, the charge unequivocally states that the accused obtained and collected top secrets and secret official documents and informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offences during the period when he was a Naval Officer. By necessary implication, therefore, and going by the prosecution's own case the offences were committed and completed at that point of time. It is alleged that an extension of that offences or a continuation of the offences was attempted on 30-5-1988. There is no reference to an attempt to commit an offence, but I shall go by the wording of the charge and the reference to the allegations that the accused was leaving the country on 30-5-1988 with some of the documents. This then is the factual position with regard to the charge No. 1. 31. Coming to the second charge which reads that "You during the said time and place attempted to commit offences under S. 3(1)(c) of the Official Secrets Act "and are alleged to have committed offences under S. 9 of the Official Secrets Act. I take it that the unambiguous reference in charge No. 2 to the words" during the said time and place" denote a reproduction of charge No. 1 and it would therefore, have to follow that everything stated by me in respect of charge No. 1 would hold good as far as a charge No. 2 is concerned. 32. Charge No. 3 states that the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempt was made to commit an extension of this offence or a continuation of it on 30-5-1988. 34. If at all there existed the slightest shade of doubt or ambiguity, the prosecution has been good enough to remove all of these completely while framing charge No. 5. This charge starts with the wording that "While working as Captain in the Navy and begin on deputation with Bhabha Atomic Research Centre during 1976 to 1983, you were dealing with classified subjects ......" As far as this charge is concerned, the time period is specified as being between 1976 and 1983 and this charge, therefore, does not even remotely concern with the incident of 30-5-1988. Time factor-wise, therefore, charge No. 5 again confines itself exclusively to the period when the accused was a service officer. I have reproduced the relevant extracts from the five heads of charge because the consideration with regard to the applicability of S. 197 of the Code of Criminal Procedure is a mixed question of fact and law. At the point of time at which we are, namely, at the pre-trail stage, though the accused has made several sub-missions with regard to the factual position, I would prefer to consider S. 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te an unmistakable impression that he is acting in discharge of his official duty, even though he should not be doing so, but the framers of the law have preferred to include this class of cases in the restricted category covered by S. 197 of the Code of Criminal Procedure. 36. Mr. Vakil has supported his submissions by calling attention to certain authorities, the first of which is the decision of the Federal Court in the case of Hori Ram Singh v. Emperor, . Bench of three Judges laid down certain tests that are applicable in resolving this issue. Thought the Court was at that time concerned with Section 270 of the Government of India Act, 1935, the court observed as follows :- "The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty ....... The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in execution of his duty, which would not necessarily be the case merely because it was done at a time when he held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, rather surprised as to how and on what basis these charges came to be framed merely because of generalized allegations put forward on behalf of the prosecution. Had this been an application for quashing of the proceedings, the accused would have succeeded hands down. 38. The second judgment on which Mr. Vakil, learned counsel appearing for the State, placed reliance was in the case of Ramayya v. State of Bombay, . The Supreme Court, in this case, while dealing with the construction and scope of S. 197 of the Code of Criminal Procedure, had occasion to observe as follows :- "If Section 197, Criminal P.C. is constructed to narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty which the court have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The sanction has content and its language must be given meaning. The Court have to concentrate on the word "offence" in the section. An offence seldom consist of a single act. It is usually composed of several elements and, as a rule, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged were or could have at all been possible but for his official position. If these acts could have been committed de hors the official position, then the Prosecution could certainly have argued that S. 197 of the Code of Criminal Procedure will not apply. If, as has happened in the present case, this offences even assuming it has been committed could never taken place but for the official position in which the accused was placed and the acts which he was performing in that capacity, then it will have to be held the bar under S. 197 of the Code of Criminal Procedure would clearly apply. 39. Mr. Vakil has relied on another decision of the Supreme Court reported in the case of Arulswami v. State of Madras, . The Supreme Court in this case was dealing with a prosecution against the President of a Panchayat Board and the question that arose was whether sanction under S. 197 of the Code of Criminal Procedure was necessary if the act complained of is entirely unconnected with the official duty. Mr. Vakil placed strong reliance on the observations of the Supreme Court wherein Their Lordships stated that it is the quality of the act that is important and if it falls within the scope and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Procedure is that by virtue of his special statue he shall not be subjected to prosecution without the designated authority in the Government examining the material and satisfying itself that, in fact, a case for prosecution has been made out. Sanction to prosecute is not an empty formality and the Courts have been repeatedly at pains to drive home to the prosecution that it is virtually a pre-trial scrutiny which is required to be conducted by the designated authority of the Government. This authority is not required merely, as often happens, to issue a sanction order by stating that "Having gone through the submission put before me, I am satisfied ...." The consequences of such a prosecution being very grave, the law protects all public servants from the commencement of a prosecution in all cases other than those in which the sanctioning authority having judicially evaluated the material before him holds that it is a fit case for prosecution. This principle becomes all the more relevant in this case because a judicious authority, on going through the investigation papers carefully and dispassionately, would never have accorded sanction to prosecute on such material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rallel with Saha's case, Mr. Vakil submitted that even in the case before the Supreme Court the accused was a public servant, the property had been entrusted to him in his capacity as a Customs Officer, but in so far as he had acted dishonestly in relation to that property that the Court held that sanction in respect of the last part of the case, namely, the commission of the last part of the offence, was not required. Dr. Subbarao has contended that this is a total misreading of the judgment and that one will have to take both the ingredients, the first of them being the question as to whether the acts complained of were ones linked to one's official duty and the offence that is complained of was intertwined or interconnected exclusively with the performance of official duties, the status of the accused and whether as a public servant that position furnished him with an opportunity or occasion to commit the alleged criminal act. The applicability of this judgment to the facts of the present case is not disputed and it is, in fact, the very tests that have been laid down in this judgment that I have applied to the facts that have been presented from the record before me. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uption Act and under several other laws and it is almost a routine matter that the papers are put up to the appropriate Governmental authority for sanction. The fact that this was not done in the present case, therefore, is not something which the caused was required to point out to the Court. The prosecution cannot get away from its basic duty and to this extent, therefore, the submission that the accused should have reminded the prosecution what it was supposed to do is thoroughly misconceived and misplaced. The record indicates that at all stages, the State was represented by a senior an experienced Special Public Prosecutor, Mrs. Manjula Rao, and a Senior Counsel from Delhi, Mr. Handa. Regardless of the accused pointing out the sanction question, the fact remains that abnormally large amounts of judicial time have been expended on over a dozen litigations for 40 months on a proceeding that was legally stillborn. This enormous waste is a matter of deep regret but certainly requires investigation. Friday, October 11, 1991 42. At the commencement of the hearing of this proceeding, learned Advocate Mrs. Usha Purohit advanced a submission that she desires to be heard by the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rohit tendered her Vakalatnama that she was not heard by my brother Shah, J. and he further stated that on the point of admission, Shah, J. had also not heard the respondent-accused. Mr. Vakil, therefore, submitted that merely having tendered the Vakalatnama before that Court would not confer any right on Mrs. Usha Purohit to address this Court and to treat herself or the organization she represents as a party to the proceedings. Mr. Vakil clarified that if Mrs. Usha Purohit were to appear on behalf of the accused as she is free to do, then the complexion of the matter is entirely different. Further, he stated that if Mrs. Usha Purohit has appeared during the earlier proceedings on behalf of the accused that she ought not to be permitted to appear an amucus curiae. Dr. Subbarao, who is present in Court, states that it was the Peoples' Union for Civil Liberties who had filed a habeas corpus petition on his behalf and that Mrs. Usha Purohit had appeared in that petition. He states that he had not briefed her as his advocate. Mrs. Usha Purohit has clarified that at one point of time during the proceeding, namely, when the matter was placed before the Division Bench of Their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with such accusations if they were seriously urged. An attempt was thereafter made to clarify that what was meant was something else and no disrespect or brow-beating was intended. 46. What aggravated the situation further was a bald statement that at the highest the sanction question was a procedural lapse and that regardless of what order the Court passes the State would "re-arrest" the Accused outside the Court Room immediately after the judgment." This statement was not surprising and was eloquently indicative of the manner in which this proceeding has been conducted from its very inception, that the action wreaks with vengeance and that there is much more to it than meets the eye. I was required to point out that if anything is done in defiance of the orders passed by this High Court or to frustrate or nullify them or in contempt thereof that this Court would come down with all firmness and take action of as strong a type as was required to deal with everyone of the persons who was responsible for such contemptuous conduct. I had to remind the persons concerned that there exists a Rule of Law in this country, that it is not a police state and the threat to subv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leasure at the charge made against this Court that it is only before "this Court" that allegations have been made by the accused and by Mrs. Usha Purohit. This Court, and every Court for that matter, is required as of duty to look seriously into complaints where human rights are transgressed upon, particularly in cases such as this where the accused has been pursued to sadistic levels. This remarks was made in the context of Mrs. Usha Purohit having made a very serious grievance to the effect that when she, as an advocate, was appearing in a proceeding relating to Dr. Subbarao that certain Police Officers had been following her and that she had been threatened of serious consequences if she had anything to do with this case. This statement was once again reiterated by the learned Counsel who offered to put it on affidavit, at which time there was an unnecessary altercation in the Court Room which, to my mind, was avoidable. The dignity, sanctity and decorum of this Court and the proceedings must be maintained by everybody, Counsel included. 49. The learned Additional Sessions Judge has, in the course of his judgment, made a reference to a submission advanced before him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I shall briefly refer to, but not in much detail because, to my mind, thought some of the points are of some consequences, they do not require any elaborate consideration. Dr. Subbarao submitted with a degree of vehemence that it was not for the first time when he filed the previous petition before the Division Bench that he pointed out the requirements of law relating to sanction, I have already observed in the earlier part of the judgment that it is certainly not for the accused in a criminal trial to point out to the prosecution that it should observe the law of the land. Dr. Subbarao's basic charge under this heard, however, is substantially wider in so far as he advanced the contention that there has been breach of the provisions of Article 21 of the Constitution, according to him, at all stages right from the very inception of the proceeding. It is his grievance that the ingredients of the offences with which he is charged and the specific requirements of law under those statues and under the Code of Criminal Procedure have been by-passed and that the multifarious applications filed by him in the course of the last over three years were eloquent testimony of the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is to be classified, and even if a classification is put down, such classification may not hold that for all times. Furthermore, having analysed the provisions of these Acts, I need to observe that it is the basic duty of the prosecution to point out to the Court through cogent material as to what precisely do the documents in question contain and how and in what manner in respect of those documents, a disclosure thereof would be a threat to the security of the country. A mere averment by a clerk connected with the establishment, which is mechanically reproduced in a couple of statements, that disclosure of these documents would constitute a threat to the security of the nation, is insufficient because, to my mind, the requirements of law are that the servant or officer concerned must substantiate this conclusion. Where a citizen is put on trial for so grave an offence of this category, one cannot proceed on the basis of loose statements of this type, but it will be absolutely essential if the procedure prescribed by law is to be adhered to that the investigative agency places before the trial Court at the time when it asks for a charge, the material from which these cardinal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also pointed out by the prosecution that he said Mr. A. V. B. Millard left India very shortly, i.e. about three weeks after the date of arrest of the accused. I do not desire to weigh this evidence because the witnesses have not come in the witness-box nor have they have been cross-examined, but the limited purpose of referring to this material is because one of the essential ingredients of the charges against the accused is that the material before the Court must disclose that the purpose for which he acted was related to the transmission of material to a foreign agent and, to my mind, the aforesaid material, even taken at face value, would fall very much short of that basic requirement. It has been the grievance of the accused from time to time that if he were to be placed on trial it could only be done if material existed to justify his detention in custody and if material existed to frame a charge against him. There is a serious handicap in my way regarding this aspect of the case in so far as at different points of time the earlier respective parties have agitated these issues before the Court of Sessions, before this Court and on the occasion, I am told, before the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which admittedly has not been specially empowered, would be without jurisdiction. 53. In the course of his arguments, Dr. Subbarao advanced a detailed submission with regard to the procedure that is required to be followed in cases instituted on complaint. The provisions of the Official Secrets Act require that a complaint is required to be filed in respect of offences under this act. Such a complaint was, in fact, filed by the Investigating Officer, though he had earlier filed a report in the nature of a charge-sheet which the learned Magistrate tagged on to the complaint. As indicated by me earlier, however, the learned Magistrate proceeded to take cognizance of the complaint having regard to the provisions of the Official Secrets Act. Dr. Subbarao has attacked the validity of the subsequent procedure on the ground that, according to him, it is a mandatory requirement under the relevant provisions of the Code of Criminal Procedure, namely, Sections 200 and 202 that the complainant and the witnesses must be examined before process is issued. Dr. Subbarao submitted that there can be let-up with regard to this procedure and for this purpose he relied on a decision of the Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward compensation to him. In this regard, he was strongly supported by Mrs. Usha Purohit, who stated that this Court must look at the record of the case and very fairly decide as to what, in the mind of the Court, would constitute fair compensation. She has suggested a figure a ₹ 2,00,000/-. 55. Mr. Vakil, learned Senior Counsel appearing on behalf of the State, submitted that the points of law on which the accused has been discharged by the Sessions Court were required to be elaborately argued before the Division Bench and before more than one Court and if an accused person comes to be discharged or acquitted by a Court purely on the basis of an interpretation of a section or a point of law that there can be no question whatsoever of his putting forward a grievance of wrongful detention or wrongful trial. Mr. Vakil pointed out that the law takes cognizance of wrongful or malicious arrest and the law takes cognizance of a situation where the Court has come to the conclusion that the proceeding was lacking in bona fide or that the proceeding was instituted and prompted by malicious motive. He submitted that none of these ingredients are present in this case and, therefore, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure requires that a Court can exercise the powers of the discharge of an accused at any stage prior to the framing of the charge. It is, therefore, their contention that it is not permissible for a Court, and that too for a trial Court, to do anything that is outside the specific provisions of law as set out in the Code of Criminal Procedure. Regardless of the fact that the trial Courts are not invested with any inherent powers, there is no dispute about the fact that the procedure in a criminal trial is strictly circumscribed to the provisions of the Code of Criminal Procedure. It is equally correct that under the provisions relating to trials before a Court of Session that the Court can discharge the accused prior to the framing of the charge if there is insufficient material or if on any ground of law the Court finds that it is not permissible to frame a charge. After the stage of framing of the charge, the Code of Criminal Procedure prescribes that there can be only one of the two conclusions to the trial, either the accused is convicted or he is acquitted. If, for any reason, the trial has proceeded beyond the stage of framing of the charge and the plea has been taken, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government should be granted reasonable time for taking such further steps as the Government may desire and he submitted that during that period this Court should maintain the present status quo ante. This submission of Mr. Vakil is well-founded in so far as it will definitely take some time for even an ordinary copy of the judgment to be obtained by the authorities. The Government is certainly entitled to a reasonable time for the purpose of considering the judgment and deciding on its future course of action. To this extent, the Government is also justified in its request that the present status quo ante should be maintained and in the submission of Mr. Vakil the period requested for by him in 6 (six) weeks. This application is granted and it is directed that the present status qua ante shall be maintained for a period of 6 (six) weeks from the date on which a certified copy is ready. Liberty to the parties to apply. By directing status qua ante, it is clarified that the undertaking that has been given by Dr. Subbarao to the Court at the time of admission of this petition would continue until the expiry of this period. 61. As regards the documents that are the subject-matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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