Saimuddin And Anr. vs State [Along With Crl. M.C. No. ...
2007 Latest Caselaw 2050 Del

JUDGMENT

P.K. Bhasin, J.

1. By this common order I shall be disposing off these three petitions preferred by the petitioners-accused under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") since in all the three petitions the petitioners, who were being prosecuted in the court of Chief Metropolitan Magistrate (CMM) for the commission of an offence punishable under Section 3 of the Official Secrets Act, 1923 ("the Act" for short), have impugned the order passed in their cases by the learned CMM, Delhi for the commitment of the cases to the Court of Sessions.

2. The relevant facts which need to be noticed and about which there is no dispute between the parties are that the three petitioners herein are alleged to have committed an offence punishable under Section 3(1) of the Act at different times. The punishment provided under Section 3(1) of the Act is imprisonment up to fourteen years when an accused is found to have collected/obtained secret documents etc. pertaining to naval, military or air force and up to three years in other cases. up to the year 1983 all complaints under the Act used to be filed and tried in the designated Courts of Magistrates of first Class/Chief Metropolitan Magistrate/Addl. Chief Metropolitan Magistrates in Delhi relying upon the provisions of Section 13(1) of the Act irrespective of the fact whether the punishment on conviction of the accused could be imprisonment up to fourteen years or three years. However, on 12/9/84 a Single Judge Bench of this Court in a judgment, which is reported as Frank Dalton Larkins etc. v. State 1985 Crl. Law Journal 377, while considering the provisions of Section 13(1) of the Act held that if the offence alleged to have been committed by an accused could attract punishment of imprisonment up to fourteen years as provided under Section 3(1) of the Act then the case could be tried exclusively by a Court of Session as provided under Part II of the first schedule to the Code of Criminal Procedure, 1973, which prescribes the forum for trial of offences under statutes other than the Indian Penal Code. That judgment does not appear to have been challenged in Supreme Court. So, thereafter the cases where the punishment could be imprisonment up to fourteen years the designated Magistrates/CMM/ACMM started committing the cases for trial to the Court of Session. That practice then continued to be followed by the Courts for more than thirteen years. However, on 6th March, 1998 the Government of India in exercise of the powers conferred under Section 13(1) of the Act issued a notification empowering the Chief Metropolitan Magistrate, Delhi to try offences punishable under the Act. After the issuance of that notification the position once again changed and the Chief Metropolitan Magistrate once again started trying even those cases where the accused could be awarded imprisonment up to fourteen years on being convicted and committal those category of cases to the Court of Session was stopped. That was the understanding of the CMM as well as the State about the notification dated 6th March, 1998 which appeared to have been issued to overcome the effect of the Judgment of this Court in Larkin's case (supra) which had held that Section 13(1) of the Act was silent about the trial of cases where punishment could be up to fourteen years of imprisonment and so in respect of that category of cases Part II of the first schedule to the Code of Criminal Procedure was to be applied and accordingly those cases were friable exclusively by the Court of Session.

3. The allegations levelled against each of the petitioners in these three petitions in the complaints filed against them were that they had obtained/collected illegally documents pertaining to defense secrets which could be useful for the enemies of India and thereby put to risk the sovereignty, integrity and security of the country. It was not disputed before me on behalf of any the petitioners that the allegations against them were of such a nature which could attract punishment of imprisonment up to fourteen years on their being found guilty. Since the complaints against the petitioners herein were filed in the Court of Chief Metropolitan Magistrate after the issuance of the aforesaid notification dated 6th March, 1998 the learned CMM after taking cognizance proceeded further in the cases without committing them to the Court of Session. That even according to the prosecution was the correct approach to be adopted by the CMM. During the pendency of the cases against the present petitioners, however, the Central Government in exercise of the powers conferred upon it by Section 13(1) of the Act read with Section 21 of the General Clauses Act came out with another notification on 21st June, 2006 whereby the above referred earlier notification dated 06.03.1998 empowering the CMM, Delhi to try the offences under the Act was rescinded. It was, however, clarified in the notification that such rescission shall not affect anything done or omitted to be done under the earlier notification dated 6th March.1998 before its rescission. In view of the rescission of the notification dated 6th March, 1998 applications were moved on behalf of the State in all the three cases against the present petitioners praying for the commitment of the cases to the Court of Session. The learned Chief Metropolitan Magistrate vide separate orders passed in all the three cases accepted the prayer of the prosecution and committed the matters to the Court of Session. At that stage trial in the case of Saimuddin etc. had already been concluded and the matter was fixed for final arguments while in the case of petitioner Dalip Singh Chandrawat prosecution evidence was going on. In the case of Brig. Deol the CMM was still recording pre-charge evidence.

4. Feeling aggrieved by the orders of the learned Chief Metropolitan Magistrate committing the cases to the Court of Session one of the petitioner, namely, Dalip Singh Chadrawat, filed a revision petition in the Court of Session while the other petitioners approached this Court directly by invoking Section 482 Cr.P.C. for setting aside the orders of the committal orders passed by the learned CMM. The revision petition of Chandrawat was, however, dismissed by the Sessions Court and thereafter he also came to this Court and invoked Section 482 Cr.P.C. for challenging the order of the CMM as well as of the learned Addl. Sessions Judge. Since all the three petitions involved common question of law the same were heard analogously and, as noticed already, are now being disposed of by this common order.

5. During the course of hearing of these petitions it was submitted by the counsel from both sides that this Court is called upon to decide a short point viz. Whether the CMM was justified in committing the cases of the petitioners to the Court of Session because of the withdrawl of the notification dated 6th March, 1998 pursuant to which only it had entertained the complaints and without committing the cases to the Court of Session was already going ahead with the trial? It was also submitted by the learned Counsel for both the sides that the power of the Central Government to issue a notification conferring the power upon any Court to try the cases under the Act is very much there. Learned Counsel for the State/CBI also did not claim that after the issuance of the earlier notification dated 6th March, 1998 the CMM was wrongly trying the cases under the Act even in respect of the offence for which punishment could be imprisonment up to fourteen years. In fact it was clearly claimed that after the issuance of the said notification only the CMM had the jurisdiction to try all the offences under the Act and that is why the State never objected to the trial of the present three cases in the Court of CMM even though the petitioners accused were being prosecuted for the offence for which they can be awarded sentence of imprisonment up to fourteen yerars in the event of their being convicted finally. It was, however, submitted by the learned Counsel for the State, though half heartedly, that with the withdrawl of the earlier notification, under which the CMM had the jurisdiction to try these three cases, the CMM ceased to have the jurisdiction to proceed ahead with the trial and so had rightly passed the impugned orders committing the cases to the Court of Session.

6. However, in my view the aforesaid question does survive for determination by this Court since it already stands decided by another Single Judge Bench of this Court in a judgment which was placed before me by the learned Counsel for the petitioners themselves. That is a Judgment rendered on 31/05/06 in Crl. Revision No. 613/2005 Rachna Singh @ Ruchi v. State of N.C.T. of Delhi. In that revision petitioner the convicted accused had challenged her conviction under Section 3 of the Act and sentence of seven years imprisonment imposed by the CMM and confirmed in appeal by Addl. Sessions Judge. One of the grounds put forth on behalf of the petitioner in that case and which ground itself was accepted by the learned Single Judge of this Court was that in view of the judgment of this Court in Larkin's case (supra) she could not have been tried by the CMM and only the Court of Session was competent to try her case. The state in that case had relied upon the already referred notification dated 6th March, 1998 in support of the trial of the accused by the CMM. However, the learned Single Judge rejected that plea of the State and held that the notification dated 6th March, 1998 had not changed the position after the judgment in Larkin's case and the said notification n operated only in respect of those cases in which punishment could be only imprisonment up to three years. Holding so the learned Judge allowed the revision petition and set aside the conviction of the petitioner-accused since the CMM had no power to try her case. During the course of hearing of these petitions I was told that the State has challenged the said decision of the learned Single Judge in Rachna Singh's case before the Hon'ble Supreme Court.

7. Since in the judgment in Larkin's case this Court had already held way back in the year 1984 that in respect of the offence under the Act for which punishment could be imprisonment up to fourteen years only the Court of Session was competent to try that category of cases and now by a recent judgment this Court has also held in Rachna Singh's case that the notification dated 6th March, 1998 did not change the said position settled by the Judgment in Larkin's case and not only that the view in Larkin's case has been reiterated also the fact that after the notification of 6th March, 1998 the CMM has been trying even those cases where punishment could be fourteen years imprisonment and the State has also not been objecting to that action of the CMM does not entitle the petitioners before me to get any relief in these petitions. And since it has been held by this Court that that the notification dated 6th March, 1998 was applicable only in respect of those cases where an accused could be punished with imprisonment only up to three years I need not go into the question whether the Government could issue that notification or not, as was also the point raised in one of these three petitions.

8. These three petitions are accordingly dismissed.