Delhi High Court
Seema Chisti vs Major General V.K.Singh (Retd.) & ... on 28 May, 2015
$~15 & 16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: May 28, 2015
+ CRL.M.C.1030/2013
SEEMA CHISTI ..... Petitioner
Through: Mr. Saurabh Mishra & Mr. Ankit
Kumar, Advocates
versus
MAJOR GENERAL V.K.SINGH (RETD.) & ANR .. Respondents
Through: Respondent No.1-in-person
Mr. B.R.Handa, Special Public
Prosecutor for CBI
+ CRL.M.C.1146/2012
SHISHIR GUPTA ..... Petitioner
Through: Mr. Saurabh Mishra & Mr. Ankit
Kumar, Advocates
versus
MAJOR GENERAL V.K.SINGH (RETD.) & ANR .. Respondents
Through: Respondent No.1-in-person
Mr. B.R.Handa, Special Public
Prosecutor for CBI
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In the above-captioned two petitions, quashing of complaint CC
Crl.M.C.Nos.1030 & 1146 of 2012 Page 1
No.322/1/2009 titled Major General V.K.Singh (Retd.) v. CBI as well as
common summoning order of 6th February, 2012 is sought on identical
grounds while questioning the authority of respondent-complainant to file
the aforesaid complaint and both the petitions are heard together and are
being disposed of by this common judgment.
Petitioners are the Editor & Dy. Executive Editor of Indian
Express, Delhi Edition.
At the hearing, learned counsel for petitioner has drawn the
attention of this Court to Sub-Section 3 of Section 13 of Official Secrets
Act, 1923 which reads as under:-
"No court shall take cognizance of any offence under this
Act unless upon complaint made by order of, or under
authority from, the 28 [Appropriate Government] 29 [***]
or some officer empowered by the 27 [Appropriate
Government] in this behalf"
Learned counsel for petition submits that respondent-complainant
is a retired Major General from Army who claims to be prolific writer.
Respondent-complainant is sought to have addressed a letter of 26th
December, 2008 to Director, CBI with copy of Article titled "What Went
Wrong: The Inside Story" by Shishir Gupta in Indian Express and
according to respondent-complainant, the said Article infringes the
provisions of the Official Secrets Act, 1923. Impugned summoning order
noticed the facts as noted in the complaint, in question, and without
briefly adverting to the nature of contents of the said article has opined
that there is enough material for prosecution against petitioner for offence
under Section 3 & 5 of the Official Secrets Act, 1923.
Crl.M.C.Nos.1030 & 1146 of 2012 Page 2
Learned counsel for petitioner relies upon Apex Court decision in
K.Chandrasekhar v. State of Kerala & Ors. (1998) 5 SCC 223 and
decision of this Court in Rakesh Kumar Jain v. State Thru CBI 75(1998)
DLT 141 to submit that in the afore-cited decisions, it has been reiterated
that the complaint under the Official Secrets Act, 1923 can be filed under
the orders of the Central Government and by none else. Thus, quashing
of complaint in question as well as impugned summoning order is sought.
Respondent No.1 appears in person and seeks to argue these
petitions himself. Respondent No.1 supports the impugned order and
submits that there is no illegality in the impugned order and the complaint
ought to be tried in accordance with law because the contents of the
impugned article certainly infringes provisions of the Official Secrets Act,
1923. It was pointed out by first respondent that he had written a letter to
CBI and the authorities concerned for granting sanction for the
prosecution of petitioners but it is evident from the Communication of 7th
November, 2008 from Ministry of Home Affairs that authorization under
Section 13 of the Official Secrets Act shall be issued at the
request/proposal of the prosecuting agency and no authorized agency had
approached Ministry of Home Affairs for permission/sanction under the
Official Secrets Act, 1923. So, it is submitted that proceedings arising out
of complaint in question ought to continue.
Upon hearing both the sides and on perusal of the complaint in
question, impugned summoning order and the decisions cited, I find that
on bare perusal of Sub-Section 3 of Section 13 of Official Secrets Act,
1923, it becomes crystal clear that complaint under this Act can be
instituted by an order or under the authority from appropriate
Crl.M.C.Nos.1030 & 1146 of 2012 Page 3
Government. Apex Court in K.Chandrasekhar (supra) has declared in no
uncertain terms that it cannot be disputed that the complaint under the
Official Secrets Act, 1923 can be instituted by or at the instance of Central
Government and any State Government. On this aspect, the pertinent
observations of the Apex Court in Rakesh Kumar Jain (supra) are as
under:-
"We conceive no doubt that sub-section (3) of
Section 13 envisages only the filing of the
complaint, by order of or under authority from the
appropriate Government or by an officer
empowered by such Government."
Applying the afore-noted dictum of the Apex Court to the facts of
the instant case, this Court has no hesitation in holding that the complaint
filed by respondent No.1 is not maintainable. During the course of
hearing, respondent No.1 wanted to know as to what is the remedy
available with respondent No.1 to seek redressal of his grievance. It is
but obvious that respondent No.1 has to approach the Central
Government for initiating the proceedings under the Official Secrets Act,
1923 and if no action is taken, then respondent No.1 can always invoke
the writ jurisdiction of this Court under Article 226 of Constitution of
India. This is of course without prejudice to the rights of petitioners to
maintain that no case under the Official Secrets Act, 1923 is made out
against them.
Be that as it may.
Since the complaint in question under the Official Secrets Act,
1923 has been instituted by first respondent in private capacity therefore,
Crl.M.C.Nos.1030 & 1146 of 2012 Page 4
it is quashed. Consequentially, the summoning order of 6th February,
2012 is also quashed with liberty to first respondent to approach the
Central Government for redressal of his grievance and it is expected that
as and when such a request is received from first respondent, the Central
Government shall proceed further in accordance with the law.
With aforesaid observations, both the petitions are disposed of
while refraining to comment upon the merits.
(SUNIL GAUR)
JUDGE
MAY 28, 2015
vn
Crl.M.C.Nos.1030 & 1146 of 2012 Page 5
