Mohd. Abdul Samad vs State (Nct) Of Delhi
2003 Latest Caselaw 740 Del

JUDGMENT

S.K. Agarwal, J.

1. This is a petition under Section 439 Cr.P.C. for grant of bail in case FIR No.568/2001, P.S.Shakarpur, Delhi, u/Ss.3, 5 & 9 of the Official Secrets Act, 1923 (for short 'O.S.Act').

2. Prosecution case in brief is that petitioner was working as assistant in the Naval Headquarter; on 1.11.2001 at 6:00 p.m. petitioner along with Francis Prakash were arrested at Shakarpur near red light crossing, Vikas Marg, Delhi, while they were going to pass certain classified documents to one Gulam Shabir Khan, a Pakistani national, working in Pakistan High Commission; from their possession restricted documents were recovered, pertaining to defense. Thereafter during investigations restricted documents were also recovered from his residence and from office table of the petitioner. After investigation challan has been filed; petitioner filed a revision petition against the order passed by the trial court dismissing his application under Section 245(1) Cr.P.C. seeking discharge, at the pre-charge stage, the petitioner got summoned the trial court record in the revision petition, which is still pending. Now the trial court record has been sent back and matter is listed for arguments on charge.

3. Learned counsel for the petitioner argued that assuming the allegations to be true, no case under Sections 3, 5 and 9 of the Official Secrets Act is made out against the petitioner; the petitioner is a public servant and prosecution against him without the sanction under Section 197 Cr.P.C. is bad in law; and that maximum sentence that can be awarded to the petitioner for the above noted offences is only of three years, and petitioner has already served the sentence of one year and nine months. Learned counsel referring to the expert opinion regarding various documents seized, during the investigations, argued that in respect of the document "Chapter two Transmitter MUN 119/Receiver UN 410", opinion is that it may not have affected the sovereignty and integrity of the country. And regarding the documents allegedly recovered from the bed of the petitioner, learned counsel argued that there are some torn pages, arranged and pasted on a sheet of paper, although the opinion is positive, i.e., the disclosure of these documents could have affected sovereignty and integrity of the country, but it could be so only "if full document had been given". Learned counsel argued that full document was not available or seized, therefore, the same would not attract Section 3 of O.S.Act. Learned counsel also argued that documents purported to have been recovered from the office of the petitioner, were not in his exclusive possession, therefore, petitioner cannot be held solely responsible for the same, as the place from where the documents were seized was accessible to others as well. Reliance is also placed on the opinion (page 34 of the compilation), which shows that out of eight documents only one document was opined to be classified and confidential. He further submits that as per instructions issued by the Ministry of defense, as contained in the hand book, dealing with classification and handling of classified documents, only those documents which are marked "top secret" or "secret", are accountable, and if any such documents are passed to the persons, who are not entitled to have access to them, then section 3 of O.S.Act can be said to have been committed. Learned counsel argued that the documents seized were meant for internal official use but their disclosure to the others would not attract provisions of O.S.Act. He further submits that the petitioner is in custody for the last one year and nine months; and that charge has yet not been framed and trial is bound to take long time, therefore, petitioner is entitled to be released on bail. Learned APP for the State argued to the contrary.

4. I have considered the rival contentions. The scope and ambit of Section 197 Cr.P.C. is settled by several Apex Court decisions. For invoking this section, it has to be shown (i) that the public servant was not removable from the office save by or with sanction of the State Government or the Central Government; and (ii) that the accused was acting or purporting to act in discharge of his official duties. There is nothing on record to prima facie show that these two basic ingredients are fulfillled. Further the question whether the document has to be market as 'secret' for establishing the offence under Section 3(1)(c) of O.S.Act is settled by the Supreme Court decision in Sama Alana Abdulla v. State of Gujarat, . Further the Apex Court in The State v. Jaspal Singh Gill, while cancelling bail of an accused granted under Section 3 of O.S.Act observed that where the accused is charged of an offence under Section 3 of O.S.Act relating to military affairs on the allegations that he obtained classified information on defense matters and passed it on to the others, the bail should not have been granted on the ground that the material collected by the prosecution was insufficient to sustain the conviction. The detailed discussion on the various submissions made by learned counsel for the petitioner is not required as the same may prejudice the case of defense or the prosecution case during the trial. Looking into the nature of allegation, gravity of the offence, at this stage, I am not inclined to grant bail to the petitioner.

5. However, the petitioner is in custody for the last one year and nine months, and even the charge has yet not been framed. In view of the same, trial court is directed to expedite the trial, and take up the same preferably on day-to-day basis.

6. With the above directions, petition stands disposed of.

7. Any observation made herein would not affect merits of the case during the trial.

8. Copy of the order be sent to the learned trial court.