Delhi High Court
Shankar Adawal vs Central Bureau Of Investigation on 1 August, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: July 25, 2019
Pronounced on: 01 August, 2019
+ CRL.M.C. 2594/2012 & CRL.M.A. 13258/2012
SHANKAR ADAWAL ........Petitioner
Through: Mr. N. Hariharan, Senior
Advocate, with Mr. Siddharth
Singh Yadav, Ms. Punya Rekha,
Mr. Prateek Bhalla, Mr. Sharang
Dhulia & Mr. Govind Venugopal,
Advocates.
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Prasanta Varma, Special
Public Prosecutor with Ms. Prativa
Varma & Ms. Chetna, Advocates
+ CRL.M.C. 2595/2012 & CRL.M.A. 13259/2012
V BALASUBRAMANIAN ........Petitioner
Through: Mr. Amit Desai, Senior Advocate
with Mr. Gopal Krishna Shenoy,
Mr. K.R. Saviprabhu, Mr. Vishnu,
Mr. Rohit Chandra & Mr. Ved
Prakash Sharma, Advocates
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Prasanta Varma, Special
Public Prosecutor with Ms. Prativa
Varma & Ms. Chetna, Advocates
CRL.M.C. 2594/2012 & connected matters Page 1 of 13
+ CRL.M.C. 2596/2012 & CRL.M.A. 13261/2012
A. N. SETHURAMAN ........Petitioner
Through: Mr. Amit Desai, Senior Advocate
with Mr. Gopal Krishna Shenoy,
Mr. K.R. Saviprabhu, Mr. Vishnu,
Mr. Rohit Chandra & Mr. Ved
Prakash Sharma, Advocates
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Prasanta Varma, Special
Public Prosecutor with Ms. Prativa
Varma & Ms. Chetna, Advocates
+ CRL.M.C. 2597/2012 & CRL.M.As. 13263/2012, 17557/2017
M/S RELIANCE INDUSTRIES LIMITED .....Petitioners
Through: Mr. Amit Desai, Senior Advocate
with Mr. Gopal Krishna Shenoy,
Mr. K.R. Saviprabhu, Mr. Vishnu,
Mr. Rohit Chandra & Mr. Ved
Prakash Sharma, Advocates
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Prasanta Varma, Special
Public Prosecutor with Ms. Prativa
Varma & Ms. Chetna, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
The challenge in the above captioned petitions is to trial court's
order of 31st March, 2012 vide which first three petitioners have been put
on trial on the charge under Section 120(B) of IPC read with Section 5(2)
punishable under Section 5(4) of The Official Secrets Act, 1923. The
fourth petitioner M/s Reliance Industries Limited has been also charged
with the offence under Section 5(2) punishable under Section 5(4) read
with Section 15 of The Official Secrets Act, 1923. In the alternative, first
three petitioners have been also charged for the offence under Section
5(2) punishable under Section 5(4) read with Section 15 of The Official
Secrets Act, 1923.
The first petitioner-Shankar Adawal was the General Manger
(Corporate Affairs) of Reliance Telecom Pvt. Ltd. and he has been
arrayed as accused No. 3 in the charge-sheet. Petitioner-V.
Balasubramanian, was the Group President of M/s Reliance Industries
Public Limited and he has been arrayed as accused No. 1, whereas the
abovesaid M/s Reliance Industries Limited has been arrayed as accused
No. 4. Petitioner-A.N. Sethuraman was the Vice-President of M/s
Reliance Industries Limited and he has been arrayed as accused No. 2 in
the charge-sheet filed.
The crux of the prosecution case as noticed in the impugned order
is as under:-
"Case of prosecution is that on 28.10.1998, search of the
office premises of Sh. V. Balasubramanian, Group President,
Reliance Industries Limited (RIL) at 5th Floor, Meridien
Commercial Tower, Janpath, New Delhi was conducted by
Inspector Gir Raj Singh, Addl. SHO, PS Chittaranjan Park,
New Delhi in connection with investigation of case FIR No.
799/98, PS Hauz Khas, New Delhi. In the course of search,
photocopies of the four „Secret‟ documents of Government of
India (comprising of 37 pages) were recovered from office-
table drawer of Sh. V. Balasubramanian. The table was lying
locked. It had to be broken open in presence of witnesses. As
a result, photocopies of four documents comprising of 37
pages were recovered from the drawer of the table.
Prosecution alleges that these documents were „secret
documents‟.
The particulars of the documents recovered have been already spelt
out in the impugned order. The document D-7 is on the subject "Core
Group on Economic Matters-Challenge of Economic Sanctions against
India" (5th Meeting). The document D-8 is part of document D-7. On
14th September, 1998, this document has been labeled separately to
highlight being No. 17 in the aforesaid document D-7. The next
document is D-9 is on the subject-"Minutes of the 37th meeting of the
Core Group of Secretaries on Disinvestment" relating to meeting
convened by Cabinet Secretary on 21st September, 2008.
The reference to document D-10, relied upon by the prosecution
has not been adverted to, for the reason that trial court in the impugned
order has concluded in respect of this document as under:-
"In view of the above, as rightly submitted by learned
defence counsel, it cannot be said that documents D-10 was
a secret document or a document containing information,
communication of which would have been in contravention
of the provisions of Official Secrets Act".
Upon considering the charge-sheet and the material on record, trial
court vide impugned order has concluded as under:-
"From the material available on record, prima facie it
can be said that accused No. 4 Reliance Industries Ltd. had
vested interest in having the information contained in the
three documents (D-7, D-8 & D-9) so as to know as to what
was going on at the level of the government on the subjects
to which they pertain, and to take appropriate steps for the
benefits of the company which is an association of persons
and having a juristic personality in the eye of law.
Herein, on the material available on record, prima facie
case for an offence under Section 5(2) punishable under
Section 5(4) read with Section 15 of The Official Secret Act
is made out against Company-accused No. 4.
Prima facie there is material on record to infer
agreement & criminal conspiracy between accused No. 1, 2
and 3 from the manner in which the information has been
received and communicated. Since prima facie case is
made out against them, they have to face trial for an offence
punishable under Section 120 B IPC read with Section 5(2)
punishable under Section 5(4) of Official Secrets Act.
Having regard to all the facts and circumstances, this Court
also deems it to be a fit case to frame charge against
accused no. 1, 2 & 3, also in the alternative, for an offence
under Section 5(2) punishable under Section 5(4) of Official
Secrets Act read with Sec. 15 Official Secrets Act; and I
order accordingly".
Since the above captioned four petitions are directed against
common impugned order, therefore, with the consent of learned counsel
for the parties, these petitions have been heard together and are being
disposed of by this common order.
The challenge to the impugned order by learned Senior Counsel for
petitioners is on the ground that in the reply (D-34/2) the concerned
Department has stated that the document D-9 does not appear to be such,
so as to require a classification as "Secret" or disclosure of which to any
unauthorized persons will be violation of provisions of Sections 3 & 5 of
The Official Secrets Act, 1923, read with instructions contained in the
Security Manual issued by Ministry of Home Affairs.
It was submitted by learned Senior Counsel for petitioners that the
documents in question (D-7 to D-9) are not prejudicial to the security of
the State and by merely marking them to be secret, does not bring the
documents in question within the ambit of The Official Secrets Act, 1923.
It was pointed out that the word "secret" used in The Official Secrets Act,
1923 has been used only with respect to or in relation to "official code or
password". Reliance was placed upon Supreme Court's decisions in
Sama Alana Abdulla Vs. State of Gujarat (1996) 1 SCC 427 and Govt. of
NCT of Delhi Vs. Jaspal Singh (2003) 10 SCC 586 to submit that the
information was already in public domain, which has been supplied
through Government channels and it is so apparent from the copies of
newspaper reports on record.
It was emphasized by learned senior counsel for petitioners that at
no stage the prosecution has denied the contents of the newspaper reports
on record. Learned senior counsel for petitioners had referred to various
newspaper reports on record to point out that the information contained
therein does not in any manner whatsoever infringe the provisions of The
Official Secrets Act, 1923. It was submitted that it is not the prosecution
case that petitioners had leaked the information in respect of the
documents in question to the media. Attention of this Court was drawn to
the material on record to show that petitioners had not acted in
contravention of provisions of The Official Secrets Act, 1923 and that
there is no presumption in law that mere labelling of a document
(contents of which are already in public domain for months prior thereto
through Government or other sources) as "secret" contravenes any
provision of The Official Secrets Act, 1923. To submit so, reliance was
placed upon Supreme Court's decisions in Suraj Mal Vs. State (Delhi
Administration) (1979) 4 SCC 725; C.M.Girish Babu Vs. CBI, Cochin,
High Court of Kerala (2009) 3 SCC 779.
It was highlighted by learned senior counsel for petitioners that
with the advent of Right to Information Act, 2005, there is implicit repeal
of Section 5(2) of The Official Secrets Act, 1923 as Right to Information
Act, 2005 is a beneficial legislation and seeks to protect fundamental
rights under Articles 19 & 21 of the Constitution of India. To submit so,
reliance was placed on Supreme Court's decision in T.Barai Vs. Henry
AH HOE & Anr. (1983) 1 SCC 177 and Ratan Lal Adukia Vs. Union of
India (1989) 3 SCC 537. It was urged on behalf of the petitioners that
Second Administrative Reform Commission Report had recommended
amendment to Section 5 of The Official Secrets Act, 1923 to avoid the
confusion and ambiguity arising from the unnecessary wide interpretation
being given to The Official Secrets Act, 1923, which deals with disclosure
affecting the sovereignty and integrity of India and security of the State,
and the relations with foreign States are matters relating to national
security.
Reliance was placed upon Supreme Court's decisions in Dilawar
Balu Kurane Vs. State of Maharashtra (2002) 2 SCC 135 and Union of
India Vs. Prafulla Kumar Samal & Anr. (1979) 3 SCC 4 to submit that at
the charge stage, the courts are required to sift through the material on
record to see if prima facie case is made out and if two views are
possible, then the benefit accrues to the accused. Reliance was also
placed upon Supreme Court's decision in Satish Mehra Vs. State (NCT of
Delhi) and Anr. (2012) 13 SCC 614 to submit that if prima facie case is
not made out, then the charges framed can be quashed at any stage.
Attention of this Court was drawn to the pertinent observations made by
Supreme Court in Satish Mehra (Supra), which is as under:-
"14. The power to interdict a proceeding either at the
threshold or at an intermediate stage of the trial is inherent
in a High Court on the broad principle that in case the
allegations made in the FIR or the criminal complaint, as
may be, prima facie do not disclose a triable offence, there
can be reason as to why the accused should be made to
suffer the agony of a legal proceeding that more often than
not gets protracted. A prosecution which is bound to
become lame or a sham ought to be interdicted in the
interest of justice as continuance thereof will amount to an
abuse of the process of the law. This is the core basis on
which the power to interfere with a pending criminal
proceeding has been recognised to be inherent in every
High Court. The power, though available, being
extraordinary in nature has to be exercised sparingly and
only if the attending facts and circumstances satisfy the
narrow test indicated above, namely, that even accepting all
the allegations levelled by the prosecution, no offence is
disclosed. However, if so warranted, such power would be
available for exercise not only at the threshold of a criminal
proceeding but also at a relatively advanced stage thereof,
namely, after framing of the charge against the accused. In
fact the power to quash a proceeding after framing of
charge would appear to be somewhat wider as, at that
stage, the materials revealed by the investigation carried
out usually come on record and such materials can be
looked into, not for the purpose of determining the guilt or
innocence of the accused but for the purpose of drawing
satisfaction that such materials, even if accepted in their
entirety, do not, in any manner, disclose the commission of
the offence alleged against the accused."
Attention of this Court was particularly drawn by learned Senior
Counsel for petitioners to the statement of Mr. Anil Kumar, Secretary,
Department of Telecommunication recorded under Section 161 of Cr.P.C.
to point out that this witness has clearly stated that the documents D-7 &
D-8 do not involve any sensitivity and are not of any advantage to
Reliance Industries Limited as the information contained in these
documents relate to Telecommunication. It was highlighted by learned
Senior Counsel for petitioners that the Secretary, Department of
Telecommunication, has clearly stated in his aforesaid statement that he
is not in a position to say as to whether the leakage of documents D-7 &
D-8 caused any prejudice to the security of the nation.
It was vehemently argued by learned Senior Counsel for petitioners
that the documents D-7 to D-9 were very much in public domain and the
information contained in these documents were promptly published by
newspaper, "Business Standard Logistics Times" on 16th September, 22nd
September, 28th September, & 29th September, 1998. It was pointed out
that in the reply filed by respondent-CBI, the aspect of publication of the
contents of these documents by the concerned newspaper is not disputed
and the trial court has erred in not considering this vital aspect on the
technical plea of these newspaper reports having not been formally
proved on record. Thus, it is submitted that since the documents D-7 to
D-9 were in public domain, therefore, the trial of petitioners for the
aforesaid offences is unwarranted and so, the impugned order deserves to
be set aside.
On the contrary, learned Special Public Prosecutor for respondent-
CBI supported the impugned order and submitted that on the basis of oral
and documentary evidence, the prosecution case is required to be proved
at trial. It was further submitted by learned Special Public Prosecutor for
respondent-CBI that the documents in question were marked "secret" as
per the applicable rules and since petitioners were found in possession of
these incriminating documents, therefore, they are required to be put on
trial. It was submitted that the pleas urged on behalf of petitioners are
required to be considered at trial and not to be pre-judged at this initial
stage. Dismissal of these petitions is sought on the ground that at this
initial stage, only prima facie case has to be seen and merits of the case
are not required to be considered prematurely.
After indepth consideration of the submissions advanced by both
the sides and upon careful scrutiny of the material on record and the
decisions cited, I find that the final test is not to be applied at the stage of
framing of charge, as at this stage accused is to be put on trial only if
there is a strong suspicion of involvement of the accused. All that is
required to be seen at this stage is as to whether prima facie case is made
out or not. The need for an independent application of mind by trial court
has been stressed by Supreme Court in Prafulla Kumar Samal (supra)
and Sajjan Kumar vs. Central Bureau of Investigation (2010) 9 SCC 368.
The legal position highlighted is that the trial court is empowered to
discharge the accused in a case where grave suspicion about the
involvement of accused does not exist. In light of the afore-referred legal
position culled out from the decisions cited, impugned order putting
petitioners on trial for the offence in question has been scrutinized and
thereupon, it emerges that the trial court in relation to one document i.e.
D-10 has concluded that the subject matter of this document was in public
domain and so, petitioners have not been put on trial in respect of the said
document.
Supreme Court in Sama Alana (Supra), has made it amply clear
that mere marking of a document as "secret" is not sufficient. The
pertinent observations made by the Supreme Court in Sama Alana
(Supra) are as under:-
"8. From the way the said sub-section is worded it
becomes apparent that the qualifying word „secret‟ has been
used only with respect to or in relation to official code or
password and the legislature did not intend that the sketch,
plan, model, article, note, document or information should
also be secret."
The aforesaid view has been reiterated by Supreme Court in Jaspal
Singh (supra). Thus, it becomes amply clear that a person cannot be put
on trial merely because a document has been marked as "secret", as it is
necessary to see the nature of information contained in it, to find out if
any offence under The Official Secrets Act, 1923 is made out or not. This
Court is of the considered view that trial court has gravely erred in
ignoring the newspaper reports on record on technical plea of want of
proof, as it is a settled legal position that on technicalities, substantial
justice cannot be sacrificed. Neither the rules of procedure nor the
technicalities of law can stand in the way of substantial justice. Even the
law bends before justice. It is a cardinal principle of law that
technicalities cannot be allowed to result in failure of justice. Hyper
technical approach adopted by the trial court certainly defeats the ends of
justice. When substantial justice is pitted against technicalities, then
substantial justice has to prevail. It needs no reiteration that procedural
process cannot be allowed to defeat substantial justice on mere
technicalities. Such a view is being taken in the light of settled legal
position highlighted by Supreme Court in its decisions in Union of India
Vs. Ajeet Singh (2013) 4 SCC 186; Hemareddi (D) through LRs. Vs.
Ramachandra Yallappa Hosmani & Ors. 2019 SCC OnLine SC 665 and
Kamil Vs. State of Uttar Pradesh 2018 (14) SCALE 517.
Since the contents of newspaper reports on record pertaining to the
documents in question have not been denied by the prosecution,
therefore, to secure ends of justice, the contents of newspaper reports on
record deserve to be looked into, to consider the classification of these
documents as "secret". Such an exercise is required to be undertaken, in
the face of the statement of Secretary of Department of
Telecommunications on record while dealing with the classification
aspect.
A bare perusal of the statement of Mr. Anil Kumar, Secretary,
Department of Telecommunication, Government of India reveals that he
is not categoric about documents in question being prejudicial to the
security of the nation. Sensitivity of the documents in question can be
seen from the fact that it relates to disinvestment. Since the documents in
question have been already made public, therefore, they lose their
confidentiality. Trial court has not put petitioners on trial in respect of
document D-10, therefore, there remains no justification whatsoever to
put petitioners on trial in respect of remaining three documents i.e. D-7 to
D-9, as these documents were also in public domain. Since the impugned
order suffers from utter non application of mind, therefore, it cannot be
sustained. There is no hesitation whatsoever in concluding that
continuance of proceedings before the trial court is travesty of justice, as
the ingredients of the offence alleged are apparently lacking. Thus, to
secure the ends of justice, the instant proceedings are hereby halted
forthwith. Consequently, impugned order as well as the proceedings
emanating therefrom, are hereby quashed.
The above captioned petitions and applications are accordingly
disposed of.
(SUNIL GAUR)
JUDGE
JULY 25, 2019
p‟ma/r
