CRL.M.C.--4120/2016. Case: ASHOK CHAWLA & ORS. Vs. C.B.I.. High Court of Delhi (India)
| Case Number | CRL.M.C.--4120/2016 |
| Citation | NA |
| Judgement Date | August 08, 2019 |
| Court | High Court of Delhi (India) |
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: July 12, 2019
Decided on: August 08, 2019
+ CRL.M.C. 4120/2016
ASHOK CHAWLA & ORS. ..... Petitioners
Through: Mr. Kunal Malhotra, Advocate with
Ms. Palak Kharbanda, & Mr. Vivek, Advocates.
versus
C.B.I. ..... Respondent
Through: Mr. Mridul Jain, Special P.P. with
Mr. K.P. Sharma, Deputy SP, CBI.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
J U D G M E N T
1. Some confusion prevails concerning the procedure governing the criminal cases involving accusations of offences under the Official Secrets Act, 1923 (“the Official Secrets Act”), certain notifications issued by the central government, some observations in an earlier judgment of a single bench of this court, and a seemingly unreasonable posture adopted by Central Bureau of Investigation (CBI) in the case from which the present petition arises, having possibly added to the causes. The petition at hand presents the opportunity for such confusion to be dispelled and clarity in the approach expected to be adopted brought about such that cases of this nature do not suffer unnecessary hiccups or delay.
2. The background facts may be noted at the outset albeit restricted to the extent necessary. In the wake of searches statedly carried out in a premises located in Defence Colony, New Delhi on
31.08.1995 and 01.09.1995, by the officials of income tax department, recovery of certain classified documents, described as secret and confidential, of Ministry of Defence in the Govt. of India was reported, this resulting in first information report (FIR) being registered by CBI on 30.08.1996 vide RC No.6(S)/1996, the investigation having been taken up into the acts of commission and omission prima facie constituting offences punishable under sections 3 and 5 of the Official Secrets Act and section 120-B of the Indian Penal Code, 1860 (IPC). On 21.11.2000, Inspector Ram Chander Garvan of CBI presented a criminal complaint under section 13 of the Official Secrets Act in the court of Chief Metropolitan Magistrate (CMM) Delhi, on the strength, inter alia, of authorization by the Central Government vide order No.11/17017/18/2000-ISUS (D-11), dated
12.09.2000, seeking prosecution of the petitioners for having committed offences punishable under sections 120-B IPC read with section 3(1)(c) of the Official Secrets Act and for substantive offence under section 3(1)(c) of the Official Secrets Act. The complaint referred to, and relied upon, evidence that had been gathered by the CBI during investigation into the above mentioned FIR, documents relating to which were presented with the complaint, the list of witnesses also having been prepared and presented in such light.
3. The CMM, Delhi passed the following order on the said complaint:-
―21.11.00
Pr. Sh. Rajpal Singh, Spl.P.P. for CBI with Insp. Ram Chander Garvan I.O.
Complaint under section 13 of Official Secret Act 1923 presented.
It be checked and registered.
Documents also filed along with the complaint. Heard. Perused. I take cognizance of the offence under section 3/5 Official Secret Act R/w section 120B IPC. Accused persons be summoned for 2/3/2001.
Sd/-
C.M.M. 21.11.00‖
4. On 08.03.2001, the petitioners appeared before the CMM, Delhi with counsel taking preliminary objection that the complaint had been presented by an officer who was not authorized in law to present the same. This objection was repelled by the CMM who noted that the complainant (public servant) had been duly authorized by the Central Government, reference being made to the FIR that had been registered by CBI on 30.08.1996, directions being given to the concerned clerk (Ahlmad) to trace the FIR and place the same on record, the matter having been adjourned because the concerned Public Prosecutor for CBI was not available, the application for bail requiring consideration. On 04.05.2001, the ahlmad of the concerned court gave a report placing on record copy of the FIR that had been received earlier, also stating that no report (of investigation) under section 173 of the Code
of Criminal Procedure, 1973 (Cr.P.C.) had been filed. On 20.09.2001, the petitioners were admitted to bail, the CMM, Delhi opting to enforce the trial procedure applicable to warrant cases instituted otherwise than on police report (generally known as “complaint cases”) requiring pre-charge evidence to be adduced – presumably in terms of section 244 Cr.P.C. It is apposite to take note of the detailed order passed on 20.09.2001 by the CMM, Delhi in extenso:-
―1. Complaint under section 13 Official Secrets Act 1923 was filed by Insp. Ram Chander Gravan, Inspector of Police, C.B.I. New Delhi against Ashok Kumar Chawla and Ms. Vijaya Rajgopal.
2. On filing of complaint cognizance for the offence under section 3/5 Official Secrets Act 1923 r/w section 120B IPC was taken and the accused were summoned to appear in Court.
3. On appearance the counsel for the accused pointed out that in fact an RC No.6(S)/96 New Delhi was registered with the C.B.I. on 30.08.1996. As per the procedure laid down under section 210 Cr.P.C. if investigation in respect of the same offence is made by the investigating authority on the basis of an FIR then the Police Reprot and the complaint case are to be amalgamated.
4. It has now come to surface that in fact no report u/s 173 in terms of Cr.P.C. has been prepared.
5. Section 13 of the Official Secrets Act lays down that cognizance of any offence under this Act is only to be taken upon a complaint made by the order of or under authority by the appropriate Government or some officer empowered by the appropriate Government under this behalf. The procedure to be followed in this case is laid down in Chapter 15 of the Cr.P.C. The present complaint
has been filed in terms of section 200 Cr.P.C. Process has been issued u/s 204 Cr.P.C. The accused have put in their appearance after supply of copies in terms of section 207 Cr.P.C. The prosecution is first to lead pre-charge evidence as it is a warrant trial case. Let prosecution lead precharge evidence on 20.11.01 and accused are directed to file their bail bonds in sum of Rs.20,000/- with surety in like amount.‖
5. It is stated that by proceedings recorded on 05.12.2006 the case was committed to the court of sessions. It appears that pre-charge evidence was adduced before the court of sessions on which basis, by order dated 12.10.2012, charges were framed against the petitioners for offences under sections 3 and 5 of the Official Secrets Act read with section 120-B IPC.
6. When the case had reached post-charge evidence stage of the trial process, the petitioners moved an application on 22.07.2016 praying for stay of proceedings referring in this context to the provision contained in section 210 Cr.P.C. The prime contention urged was that the CMM had erred because she should have stayed the proceedings on the complaint under section 210 (1) Cr.P.C. and called for the final report of investigation under section 173 Cr.P.C. into the above mentioned FIR. It was pointed out that no such report had been submitted by the investigating agency till the date of such application. Reliance was placed, inter alia, on decisions of this court reported as Asmita Agarwal vs. The Enforcement Directorate & Ors. (2001) ILR 2 Delhi 643 and A.K. Jajodia vs. The State (Through CBI), 2009 SCC OnLine Del 1623: ILR (Supp-2) 25 Delhi. The trial Judge, by his order
dated 30.09.2016, repelled the said objection referring in this context to the afore-quoted order dated 20.09.2001 of the CMM, also accepting the plea of CBI (prosecution) that there was no illegality in the order of cognizance and issuance of process on the complaint presented under section 13 of the Official Secrets Act by an officer duly empowered by the Central Government this, in the opinion of the trial Judge, being in accord with law.
7. The order dated 30.09.2016 whereby the application of the petitioners seeking stay of the prosecution under section 210 Cr.P.C. was rejected was challenged by the petition at hand invoking inherent power of this court under section 482 Cr.P.C., the plea being that the procedure adopted in the criminal case under the Official Secrets Act suffers from incurable illegality. A co-ordinate bench of this court issued notice by order dated 23.11.2016 directing that the outcome of the trial shall be subject to the decision on this petition.
8. The respondent CBI resists this challenge arguing that the view taken by the trial court is appropriate, the order of cognizance and issuance of process being lawful, there being no reason why the provision contained in section 210 Cr.P.C. would get attracted.
9. The submissions on both sides were summarized in the order dated 01.08.2018 thus:-
―In the prosecution pending in the court of Sessions against the petitioners on the charge of offences under Sections 3 and 5 of Officials Secret Act, 1923 read with Section 120 B of Indian Penal Code, 1860 (IPC),
propriety of the procedure leading to cognizance being taken is questioned by the petition at hand.
Concededly, cognizance was taken on a complaint filed by an authorised officer of the Central Government in terms of Section 13 of Officials Secret Act, 1923. Concededly again, at that stage no report under Section 173 of the Code of Criminal Procedure (Cr.P.C.) had been prepared or submitted in the court in relation to the FIR No. RC 6 (S)/1996 which had been registered by Central Bureau of Investigation qua the crimes respecting which the petitioners face the prosecution till the date cognizance was taken i.e. 20.09.2001.
The core issue raised by the petitioners is that in view of the inhibition of Section 210 Cr.P.C., the investigation being then pending, no cognizance on the criminal complaint could have been taken, such order being vitiated rendering the subsequent proceedings nonest. The petitioners rely on A.K. Jajodia vs. The State (through CBI) 2009 SCC Online Del 1623.
Per contra, the respondent CBI...
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