Wg. Cdr. Y.S. Tomar (Retd.) vs Central Bureau Of Investigation
2011 Latest Caselaw 3122 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                         Judgment Delivered on: July 5, 2011

+             CRIMINAL REVISION PETITION NO. 264/2011

        WG. CDR. Y.S. TOMAR (Retd.)....................Appellant
                    Through: Mr. Rudra Kahlon, Advocate

                                Versus

        CENTRAL BUREAU OF INVESTIGATION        ......Respondent
                  Through: Mr. Vikas Pahwa, Standing Counsel for
                             CBI.
        CORAM:
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed to
         see the judgment?      YES
     2. To be referred to Reporter or not? YES
     3. Whether the judgment should be reported
        in the Digest?     YES

SURESH KAIT, J. (ORAL)

Crl. M.A. 6632/2011 (Exemption) Allowed subject to all just exceptions.

The application stands disposed of.

Crl. Rev. Pet. 264/2011

1. This petition is being filed against the order dated

26.03.2011 passed by the Special Judge, CBI New Delhi in CCNo.

1/2009 whereby the learned Special Judge has framed the

Charges under Sections 3 & 5 of the Officials Secrets Act, 1923

against the petitioner.

2. Facts in brief are, that the Central Government in

pursuance of Section 13(3) of the Office Secrets Act, 1923 (Act

No. 19 of 1923) ordered and authorized Sh.Nirbhay Kumar,

Dy.S.P., CBI to lodge a complaint against the

Wg.Cdr.(Retd.)Y.S.Tomar in the Court of competent jurisdiction

for prosecution of the aforesaid person for the offences

punishable under Section 3 and 5 of the Official Secret Act, 1923

and other offence or offences arising out of the aforesaid facts

and circumstances.

3. Accordingly, the Respondent /CBI, had filed a complaint

under Section 3 & 5 of the Official Secrets Act, 1993, while

alleging that the instant petition is being filed on the basis of a

written complaint from Wg.Cdr.M.N.Saxena, DDI(S), Air Hqs.,

Vayu Bhawan, New Delhi wherein he quoted a complaint from

Sqn.Ldr.D.K.Sharma, in which he had reported the Anti National

activities of AVM (Retd.)J.S. Kumar;Wg.Cdr.(Retd.)H.K.Nagpal;

Wg.Cdr.(Retd.)Y.S.Tomar,Wg.Cdr.(Retd.)S.S.Gurtu;Flt.Ltd.(Retd.)V

.K.Anwekar, S.P. Bajaj Kishan KV Bajaj; V.Subramaniam, Sudhir

Oberoi; and RBS Verma (Bhagat Ram).

4. It was further alleged that Sqn. Ldr. D.K.Sharma was

approached by one Air Force Sgt. K.C.Saini on behalf of

AVM(Retd.) JS Kumar and requested to pass on highly sensitive

information relating to Air Force after which he would be duly

rewarded, Sgt. K.C.Saini was acting on behalf of the accused

persons named from A-2 to A-11 in FIR. To expose the said

racket, Sqn. Ldr. continued the negotiations with Sgt. K.C.Saini

and in the said course Sgt. K.C.Saini introduced him to AVM

J.S.Kumar who was stated to be controlling entire the operation.

Further Sgt. K.C.Saini approached Sqn. Ldr. Sharma on

26.07.2001 and arranged a meeting in the evening with AVM

J.S.Kumar to pass on the sensitive information.

5. That on 26-07-2001 Sqn. Ldr. D.K.Sharma received a phone

call from Sgt. K.C. Saini who informed him that he had fixed a

meeting with AVM J.S. Kumar at his residence, and that Sqn. Ldr.

D.K. Sharma should arrange to hand over the comparative chart

of VIP Executive jets to AVM J.S.Kumar in that meeting and that

he would wait for Sqn.Ldr.D.K.Sharma at AIIMS bus stop at

6:00pm. Sqn.Ldr. D.K.Sharma immediately informed about the

same to Wg.Cdr. M.N.Saxena who directed him to meet in his

office immediately. Wg.Cdr. M.N.Saxena in turn informed his

Superior officer Gp.Capt. T.K.Verma.

6. Accordingly, Gp.Capt. T.K.Verma directed Wg. Cdr. M.N.

Saxena to obtain a written complaint Sqn. Ldr. D.K.Sharma and

to meet him. During the course of day after the receipt of a

written complaint from Sqn. Ldr. D.K.Sharma, a meeting took

place in the office of ACAS(Int) AVM Malik in which Wg.Cdr.

M.N.Saxena and Gp.Capt. T.K.Verma were also present. In that

meeting it was decided that Wg.Cdr. M.N.Saxena would lodge a

formal complaint with the CBI in this matter. The Chief of Air Staff

was informed of all the developments in this case. Later in the

day, Wg.Cdr. M.N.Saxena approached CBI and formally lodged

complaint on the basis of which the case was registered.

7. That after the registration of the case it was decided to lay

a reverse trap whereby attempt would be made to catch Sgt.

K.C.Saini and AVM(Retd.) J.S.Kumar red handed while receiving

the classifying information.

8. It was also decided to conduct simultaneous searches

under Section 165 Cr.P.C. at the residence of the other accused

persons once the reverse trap materializes. Later in the evening

AVM(Retd.) J.S.Kumar was caught red-handed while accepting the

classified documents from Sqn.Ldr. D.K.Sharma. A separate

complaint has been filed against AVM(Retd.) J.S.Kumar and Sgt.

K.C.Saini in the court of Special Judge, Delhi.

9. Immediately after the trap, search was conducted at the

residence and office premises of accused persons named in the

FIR. During the searches conducted at the residence of Wg.Cdr.

(Retd.) Y.S.Tomar, numerous documents related to other top

officials of IAF pertaining to the procurement of Defence

equipments and copies of secret contract between Government

of India and the then State Committee of USSR were seized in the

presence of independent witnesses namely Sh. Love Kumar

Chawla and Sh. Ram Singh Gautam, of the Excise Department.

The documents recovered from the residence of Wg.Cdr. (Retd.)

Y.S.Tomar were sent to IAF for scrutinizing and for getting an

expert opinion on the classification/source of the seized

documents. The opinion of the Air Force with respect to the

aforesaid documents was received by CBI vide their letters

bearing No.AIRHQ/S/20170/3/13/AI(S) dated 17.10.2001;

23.10.2001 and 10.12.2001.

10. The information contained in the aforesaid documents is of

classified nature and permits to Hqrs./Ministry of defence and not

intended to be divulged to any unauthorized person or authority.

The disclosure of the information contained in the said

documents, if made public or to any unauthorized person would

be prejudicial to the interest of the State and would affect the

security of the country.

11. Wg.Cdr.(Retd.) Y.S.Tomar obtained or collected classified

information pertaining to Air Head Quarters and Ministry of

Defence in respect of crash fire tenders and secret contract

between President of India and the then State committee of

USSR fully knowing or having reasonable grounds to believe at

that time when he received these classified documents that the

information were obtained in contravention to the provisions of

Official Secrets Act, 1923.

12. The complaint is being filed on the order and under the

authority from the Central Government as is required under

Section 13 of the Official Secrets Act, 1923 vide order No.

17017/11/2003/US.IS-I dt. 22nd October, 2003 issued in this

regard by the Central Government.

13. The learned counsel for the Petitioner has raised the issue

that the documents which were found in the possession of the

Petitioner are not reported as classified by the Air Force

Authorities and the possession of these two documents, deemed

graded as "Confidential" and "Secret", do not constitute any

offence under the Official Secrets Act. These two documents are

quite old and are of no value to the defence/security of the

nation. The information contained in these documents is freely

available on the internet, therefore, these two documents were

freely available in the public domain. Hence, it constitute no

criminal offence as the learned counsel has pointed out before

learned Special Judge that knowledge of crash fire tenders

cannot be classified as State Secret.

14. Further submits, the other document is only draft of an

agreement and as such is of no value in the eyes of law as far as

its sensitivity to security of State is concerned.

15. The learned Special Judge has dealt the aforesaid issues

raised by the petitioner that on perusal of the Seizure Memo

dated 37.07.2001, numerous documents were recovered from

the residence of the accused including file No.AIR

HQ/64008/15/MT/Lgs., file in custody of DMT, and classified as

"confidential" and copy No. 3 of Contract between State

Committee of USSR and President of India classified as "secret"

which probably originated by ADG(Mov.) Sena Bhawan, which

were recovered from the possession of accused vide seizure

memo dated 27.07.2001. These documents were scrutinized by

CBI, an opinion of Air Force authorities was sought, in which two

documents were graded as "confidential" and "secret" vide letter

dated 17.10.2010,

16. Learned counsel for the Petitioner has argued that Section

3(c) and Section 5 has been applied to nab the petitioner

whereas this Act is only applicable to the classified documents

and as per the Column at Serial No. 1 and Serial No. 2,

documents are unclassified documents. To justify his arguments,

he has referred to page No. 65 of the instant writ petition.

17. Learned counsel for the petitioner further has referred to

page 99, Clause 6 and Clause 7, where the words "Secret" and

"Confidential" are elaborated.

18. The word "Secret" defines that the documents, information

or material, the unauthorized disclosure of which would

endanger national security, cause serious injury to the interest or

prestige of nation or serious embarrassment to Government or

would be a great advantage to a foreign Nation.

19. The word "Confidential" defines that the documents,

information and material, the unauthorized disclosure of which

while NOT endangering the National Security would be prejudicial

to the interest of the Nation, any Government activity or

individual or would cause administrative embarrassment or

difficulty or be of an advantage to a foreign Nation.

20. I note that, the details of classification of the documents

seized from the possession of the Petitioner given by the Air

Force are "Confidential" and "Secret".

21. The Petitioner was a Senior Officer in Indian Air force,

therefore, he was very much aware that the information

contained in the aforesaid document is of classified nature and

pertains to Hqrs./Ministry of Defence and was not intended to be

divulged to any unauthorized person or authority as it would be

prejudicial to the interest of State and would affect the security

of the nation.

22. In respect of Crash fire tenders and Secret contract

between President of India and the then State Committee of

USSR, the Petitioner was fully aware or had reasonable ground to

believe at the time when he received these classified documents,

the information was obtained in contravention to the provisions

of Official Secrets Act, 1923.

23. As pointed out by learned Standing counsel for CBI that in

the first trap case, when some secret and confidential documents

were seized from the possession of Sgt. K.C.Saini and pursuant to

that the case was registered against him. Pursuant to this trap

case, a search also took place at the residence of the Petitioner

i.e. E-224 Sainik Farms, Cariappa Marg, New Delhi and numerous

documents relating to defence forces including classified note

sheets recorded by Chief of Air Staff and other top officials of

Indian Air Force pertaining to the procurement of defence

equipments and copies of contract between the President of India

and the then State Committee of USSR were seized in the

presence of the independent witnesses.

24. As the learned Standing Counsel for CBI has further pointed

out that the charge framed against Sgt. K.C.Saini were

challenged vide Crl.Rev.Petition No. 446/2009 and the same was

dismissed by this Court vide order dt. 26.08.2009.

25. The Law is settled, the Judge, while framing the charge

under Section 227 of the Code has the undoubted power to sift

and weigh the evidence for the limited purpose of finding out

whether or not a prima facie case against the accused has been

made out. Where the materials placed before the Court disclose

grave suspicion against the accused which has not been properly

explained the Court will be fully justified in framing a charge and

proceeding with the trial. The Test to determine a prima facie

case would naturally depend upon the facts and circumstances of

each case and it is difficult to lay down a rule of universal

application. By and large, if two views are equally possible and

the Judge is satisfied that the evidence produced before him

while giving rise to some suspicion but not grave suspicion

against the accused, it will be fully within his right to discharge

the accused.

26. The Judge cannot act merely as a post office or the mouth

piece of the prosecution but he has to consider the broad

possibilities of the case, the total effect of the evidence and the

documents produced before the Court keeping in mind the basic

infirmities appearing in the case and so on. However, it does not

mean that the Judge should make a roving enquiry into the pros

and cons of the matter and weigh the evidence as if he was

conducting a trial. These principles were settled way back in a

case of Union of India vs. Prafula Kumar Samal and Anr.,

AIR 1979 SC 366.

27. Keeping the aforesaid discussion into view, I am not

inclined to interfere with the order dt. 26.03.2011 passed by

learned Special Judge in CC No. 1/2009.

28. Crl.Rev. Petition No.264/2011 is dismissed, accordingly.

29. No order as to costs.

Crl. M.A. 6631/2011

Since the Revision Petition has been decided, the instant

application becomes infructuous and is dismissed as such.

SURESH KAIT, J

JULY 05, 2011 j/neelam