WP(Crl.)312/2007 1 of 42 * IN THE HIGH COURT OF DELHI AT NEW DELHI + 1. W.P.(CRL) 312/2007 & CRL.M.A.2670/2007 # N.G. SHETH ..... Petitioner through ! Mr.Siddhartha Luthra, Sr. Adv. with Ms.Arundhati Katju, Mr. P.K. Dubey and Mr.Anurag Ahluwalia, Advocates versus $ C.B.I & ORS ..... Respondent through ^ Mr.Harish Gulati, Adv.for CBI/R-1 Mr.P.P.Malhotra, Ld. ASG with Mr.Chetan Chawla and Mr. Ashwani Bhardwaj, Advocates for R-2. WITH 2. W.P.(CRL) 451/2008 ANIRUDDHA BAHAL ..... Petitioner through Mr.Siddhartha Luthra, Sr. Adv. with Ms.Arundhati Katju, Mr. P.K. Dubey and Mr.Anurag Ahluwalia, Advocates versus C.B.I & ORS ..... Respondent through Mr.R.M.Tewari, Adv. for CBI/R-1 Mr.P.P.Malhotra, Ld. ASG with Mr.Chetan Chawla, Adv. for R-3 Date of Hearing : 21st May, 2008 % Date of Decision : 11th July, 2008 CORAM: * HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of local papers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Judgment should be reported in the Digest? Yes WP(Crl.)312/2007 2 of 42 VIKRAMAJIT SEN, J. J U D G M E N T 1. The legal nodus which has arisen in these writ petitions concerns the interpretation of Section 13 of the Official Secrets Act, 1923 (OS Act for short), read in conjunction with sundry sections of the Criminal Procedure Code, 1973 (CrPC hereafter). Vide Gazette Notification dated 6.3.1998 the Central Government, in exercise of powers conferred upon it by Section 13(1) of the OS Act, empowered the Chief Metropolitan Magistrate (CMM), Delhi to try offences punishable under this statute. In terms of Notification dated 21.6.2006 of the Ministry of Home Affairs the Central Government rescinded the earlier Notification dated 6.3.1998 thereby withdrawing the special empowerment of the CMM under the OS Act in this regard. Predicated on the decision of the Delhi High Court on the Administrative side the Registrar General, Delhi High Court addressed a letter No.28088/G-3/OS Act/Gaz/06 dated 7.12.2006 to the District & Sessions Judge, Delhi directing that all the cases pending under the OS Act be withdrawn from the Court of the CMM and be assigned to the Special/Sessions Judges. It is this administrative decision of the Delhi High Court that has been challenged by the Petitioners. WP(Crl.)312/2007 3 of 42 2. In WP(Crl.) 312/2007 a Complaint was lodged on 30.8.1983 under Section (5)(1)(a) of the OS Act and its cognizance was taken on 25.10.1983. Thereafter, on 23.8.2002 the Petitioner had orally exercised the option made available to him by virtue of Section 13 and has declined to be tried by the Court of Sessions. Consequent upon the passing of the impugned Notification dated 21.6.2006 counsel for the Petitioner submits that the CMM has committed the case to the Court of Sessions. We have called for the Trial Court Records and find that this submission is not correct. On the contrary the application filed by the Central Bureau of Investigation for committal of the case to the Court of Sessions in view of the Notification dated 21.6.2006 of the Government of India is still pending. Emphasis has been laid on the fact that the Petitioners had, on 20.9.2002, exercised the option in writing to be tried by the CMM, Delhi. Mr. Siddhartha Luthra, learned Senior Counsel underscores the further position that the Trial has commenced under Chapter XIX Part B of the CrPC and the case is at the stage of recording of pre-charge evidence. 3. In Writ Petition (Crl.) 451/2008 the Petitioner was facing trial in the Court of Chief Metropolitan Magistrate, Delhi for offences under Sections 3 and 5 of the OS Act read with Section 120-B of the Indian Penal Code (IPC). By virtue of WP(Crl.)312/2007 4 of 42 Notification dated 6.3.1998 the Central Government had empowered the CMM to try offences punishable under the OS Act. The CMM took cognizance on 15.6.2005. As we have already mentioned, in terms of Notification dated 21.6.2006 of the Ministry of Home Affairs, the Central Government has rescinded the earlier Notification dated 6.3.1998 empowering the CMM under the OS Act. By way of the implementation of an administrative decision of this Court, in terms of directions dated 7.12.2006 of the Registrar General, High Court of Delhi, the subject complaint case was transferred by the Sessions Judge, Delhi from the Court of the CMM to Court of Shri Vinod Goel, Special Judge. It is this transfer which has been assailed by the Petitioner. 4. Our principal concern centres upon the interpretation of Section 13 of the OS Act which reads thus:- 13. Restriction on trial of offences.--(1)No court (other than that of a Magistrate of the first class specially empowered in this behalf by the Appropriate Government) which is inferior to that of a District or Presidency Magistrate, shall try any offence under this Act. (2) If any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed, claims to be tried by the Court of Sessions, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that WP(Crl.)312/2007 5 of 42 court, notwithstanding that it is not a case exclusively triable by that court. (3) No court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the Appropriate Government or some officer empowered by the Appropriate Government in this behalf: (4) For the purposes of the trial of a person for an offence under this Act, the offence may be deemed to have been committed either at the place in which the same actually was committed or at any place in India in which the offender may be found. (5) In this section, the appropriate Government means- (a) in relation to any offences under section 5 not connected with a prohibited place or with a foreign power, the State Government; and (b) in relation to any other offence, the Central Government. Our research shows that the parenthesis that is to be found in sub-section(1) exists from the commencement of the Act. It appears to us that Section 13(2) makes it absolutely clear that the Legislature intended that only in the extraordinary course was the trial of offences under the Act to be conducted by the Magistrate of the First Class. It is noteworthy that if the offences were normally triable by the Magistrate of the First Class/MM Section 13(2) would become unnecessary and otiose. When we read Section 13(2) it fortifies us in the view that, even WP(Crl.)312/2007 6 of 42 in those abnormal cases where jurisdiction to try an offence has been vested in the MM by virtue of a special empowerment, the Court of Sessions would nevertheless not be divested of the power to try those very offences under the OS Act. Furthermore, special empowerment would be unnecessary if the Magistrate of the First Class had competency to try these offences. 5. We must straight away determine the procedure that has to be followed with regard to prosecutions under the OS Act. Section 4(2) of the CrPC, 1973 prescribes that offences under any law other than the IPC shall be investigated, inquired into, tried or otherwise dealt with according to the provisions of the CrPC, subject to any other enactment in force. Section 5 of CrPC, 1973 removes any doubts that may prevail in this context by clarifying that any special or local law that may then have been in existence shall remain unaffected by the provisions of CrPC. Therefore, whilst the trial of offences under Section 381 of IPC must be conducted in consonance with the CrPC ( as laid down in Section 4(1) thereof), for offences under the OS Act (being statute other than the IPC) the provisions of the CrPC would not be attracted if they are in variance with or incongruent or irreconcilable thereto. In other words, any part of the CrPC which is in disharmony with the OS Act will not have any pertinence or efficacy. WP(Crl.)312/2007 7 of 42 This is also the position that obtains so far as the Court which is to try offences under the OS Act is concerned, as adumbrated by Section 26(2) of CrPC. Ergo, the correct course to charter is to first ascertain the postulations in the OS Act, and only if there are none, should one travel to the CrPC and not the other way around. This distinction will be of seminal importance when the sundry sections are interpreted by us. 6. A piquant position had emerged in State of Uttar Pradesh -vs- Sabir Ali, AIR 1964 SC 1673 because in the duration of the Trial under the UP Private Forest Act, 1948, the Presidency Officer, who was a Magistrate of the Second Class, had been conferred with powers of the Magistrate of the First Class. The sentence passed by him was successfully challenged on the premise that Section 15(2) of that Act prescribed that offences would be triable by a Magistrate of the Second or Third Class. Their Lordships opined that the provisions of the CrPC (that is Section 29 of the repealed Code corresponding to Section 26 of the extant Code) were peremptory. Connected to the conundrum before us, their Lordships had also observed en passant that in view of the position that a Magistrate of the Second or Third Class was not empowered under the CrPC to impose the maximum WP(Crl.)312/2007 8 of 42 sentence prescribed by Section 15(1) of the UP Private Forest Act, two possibilities could arise, namely, either “that by implication the powers of these Magistrates are extended beyond what is prescribed under Section 32” (of the CrPC 1898) or that if “the Magistrate feels that a heavier punishment should be imposed he can take recourse to the provisions of Section 349 of the Code and make a recommendation to a Magistrate who can impose adequate punishment in the case”; (Section 349 corresponds to Section 325 of the CrPC 1973). In the context of the CrPC this question has now been definitively answered in Rosy -vs- State of Kerala, 2002(2) SCC 230. In our opinion it would be untenable to extrapolate the Rosy opinion to any Special Act which is to be construed, especially in view of the 'peremptory' quality and character of Section 26(b) of the CrPC. In the case of a Special Act which prescribes the Court which is to try and then punish the offender for the offence, the first postulate of Sabir Ali would apply, namely, that it would have to be assumed that the powers of that Court, to impose a sentence greater than that contemplated in the CrPC, stand automatically augmented. Keeping the impugned Notification and the Administrative decision of this High Court in perspective, this question does not arise before us. WP(Crl.)312/2007 9 of 42 7. Sections 6 of CrPC, 1898 and CrPC, 1973 are reproduced in juxtaposition for ready reference and comparison, and this exercise will reveal one of the significant changes brought about is the deletion of the Court of the Presidency Magistrate in the current Code: CrPC 1898 CrPC 1973 6.Classes of Criminal Courts.--- Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in India, namely: I Courts of Session : II Presidency Magistrates : III Magistrates of the first class : IV Magistrates of the second class : V Magistrates of the third class. 6.Classes of Criminal Courts.--- Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:-- (i) Courts of Session; (ii) Judicial Magistrate of the first class and, in any metropolitan area, Metropolitan Magistrate; (iii) Judicial Magistrate of the second class; and (iv) Executive Magistrates. 8. Section 13(1) of the OS Act makes reference to the District or Presidency Magistrate. A perusal of the Table will show that Presidency Magistrates were at the second tier in the hierarchy of courts contemplated in the old CrPC at the time when the OS Act came into existence. This grade of magistrates stands abrogated in the current CrPC, on the promulgation of which appropriate changes ought to have been simultaneously carried out in Section 13(1) of the OS Act. Had this exercise been undertaken at the relevant time, the conundrum before us would not have manifested itself now. WP(Crl.)312/2007 10 of 42 Unfortunately this exercise has been overlooked, and thereby the formidable task pertaining to the interpretation of the statute has to be completed by us. Not the least of these difficulties is to determine whether or not the posts of District Magistrate and Presidency Magistrate are mirror posts in the present procedural dispensation, as are to be found in the extant CrPC. We have perforce to revert to Section 3 of the CrPC 1973 which clarifies that, unless the context otherwise requires, any reference in any enactment passed before 1973 to a Presidency Magistrate or a Chief Presidency Magistrate shall be construed as a reference, respectively, to an MM or the CMM. 9. Prior to the passing of the Union Territories (Separation of Judicial and Executive Functions) Act, 1969 the entire magistracy operated under the District Magistrate of Delhi; it now functions under the direct control of the High Court. Towns having a population in excess of one million can be declared as metropolitan areas. Delhi was so designated by Notification No.155 dated 28.3.1974 under Section 8 of the CrPC, 1973 with effect from 1.4.1974. Presently, there are only MMs, Additional CMMs and CMMs functioning in the Union Territory of Delhi. Furthermore, consequent upon the separation of the Executive from the Judiciary, today there is WP(Crl.)312/2007 11 of 42 no functionary/official corresponding to the post of District Magistrate as it existed prior to October, 1969. In this regard, it is necessary to refer to Section 20 of the CrPC which postulates the appointment of Executive Magistrates, now at the lowest level of the magistracy, one of whom is appointed as the District Magistrate. It is palpably clear, but the distinction must be drawn, that the present post of District Magistrate does not correspond in powers and functions to the extremely important and multifariously powerful post of District Magistrate prior to October, 1969. So far as Presidency Magistrates are concerned, we have already mentioned that they now correspond to MMs, unless the context otherwise requires. These underlined words will assume great significance in the interpretation of Section 13 of the OS Act, as we shall presently discuss. One of the conclusions of our analysis of pertinent law is that any MM can be specially empowered by the appropriate government to try any offence under the OS Act by virtue of its Section 13(1). One vexed question is whether such empowerment shall always remain subject and restricted to the trying of offences which do not attract punishment in excess of three years so far as the OS Act is concerned, which we have expanded upon below. Section 17 of the CrPC vests in the High Court the power of appointment of any MM as the CMM and WP(Crl.)312/2007 12 of 42 Additional Chief Metropolitan Magistrate(ACMM). It is beyond cavil that the CMM as well as the ACMM can also, consequent upon special empowerment by the appropriate government, try any offence under the OS Act. 10. The interesting yet intricate question which is in our hands has already engaged the energies and attention of three Single Benches of this Court. Major General F.D. Larkins -vs- State, 26(1984) DLT 486, decided by J.D. Jain, J. holds that those offences under the OS Act which attract a sentence of upto 14 years can be tried by Court of Sessions alone, regardless of any special empowerment by the appropriate government in favour of an MM. The learned Judge spoke of Section 13(1) of the OS Act as “a disabling provision so far as inferior courts are concerned”, which indeed cryptically interprets the said Section. The reason for our reference to these words requires a comparison between the old and current Criminal Procedure Codes, which we furnish for facility of perusal. We have deleted columns 1, 4, 6 and 7 of the Table below (pertaining to the old CrPC) since it is not relevant for the purpose of comparison with the extant CrPC: WP(Crl.)312/2007 13 of 42 CrPC, 1898 Offence Whether the police may arrest without warrant or not Whether bailable or not By what Court triable 2 3 5 8 If punishable with death or imprisonment for 7 years or upwards. If punishable with imprisonment for 3 years and upwards, but less than 7. If punishable with imprisonment for 1 year and upwards, but less than 3 years. If punishable with imprisonment for less than 1 year, or with fine only. May arrest without warrant. Ditto .... Shall not arrest without warrant. Ditto ... Not bailable Ditto ... Bailable Ditto ... Court of Session Court of Session. Presidency Magistrate or Magistrate of the first class. Court of Session, Presidency Magistrate or Magistrate of the first or second class. Any Magistrate WP(Crl.)312/2007 14 of 42 CrPC, 1973 Offence Cognizable or non- cognizable Bailable or non-bailable By what court triable 1 2 3 4 If punishable with death, imprisonment for life, or imprisonment for more than 7 years. If punishable with imprisonment for 3 years, and upwards but not more than 7 years. If punishable with imprisonment for less than 3 years or with fine only. Cognizable Cognizable Non- cognizable Non-bailable Non-bailable Bailable Court of Session Magistrate of the first class Any Magistrate 11. Penalties for spying are prescribed in Sections 3 and 5 of the OS Act and are in two categories only--(i) imprisonment which may extend upto 3 years and/or with fine or (ii) upto 14 years. Under the old Code the first category of offences were triable even by a Magistrate of the second class; the present CrPC prescribes that such offences shall be triable by any Magistrate. In other words Section 13(1) of the OS Act disables the Magistrate Courts from trying espionage cases. This provision further generally disables even the next rung of Courts, namely Magistrates of the First Class or MMs, from exercising jurisdiction inasmuch as special empowerment is WP(Crl.)312/2007 15 of 42 required to be infused into them by the appropriate government for them to enjoy or attain competency. Mr. Luthra has unduly laid great store on the decision of a learned Single Judge of the Himachal Pradesh High Court reported as Syed Khushanand Anwar Naqvi -vs- State of HP, 2006(2) ShimLC 180. After recording the concession of the Advocate General to the effect that no special empowerment has been made, the Court held the ongoing proceedings to be non est. The question whether any other or superior Court, such as the Sessions Court, was competent to try the complaint neither arose for consideration nor was contemplated upon. It is irrefutable that a Magistrate of the First Class or an MM is altogether incompetent to try any offence under the OS Act in the absence of a special empowerment in its favour. 12. Our learned Brother, Badar Durrez Ahmed, J. while following Larkins has perspicuously analysed the law in Rachna Singh -vs- State of NCT of Delhi decided on 31.5.2006. The ASJ had upheld the sentence of seven years rigorous imprisonment but in Revision the conviction and sentence was set aside by Ahmed, J. holding that since the maximum sentence was upto 14 years, only the Court of Sessions was competent to try the case. In Saimuddin -vs- State decided by our learned Brother P.K. Bhasin, J. both the earlier decisions of Larkins and Rachna were applied. WP(Crl.)312/2007 16 of 42 13. Pankajbhai Nagjibhai Patel -vs- State of Gujarat, 2001(2) SCC 595 is of topical importance. The Judicial Magistrate First Class had convicted the accused of an offence under Section 138 of the Negotiable Instrument Act, 1881 (NI Act for short) and sentenced him to imprisonment for six months and a fine of Rs.83,000/-. Their Lordships referred to Section 29(2) of the CrPC which stipulates that the Court of a Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years, and/or a fine not exceeding Rupees ten thousand, or of both. Mention was also made to Section 4(2) of the CrPC which lays down that in the case of offences under any law other than the IPC investigation or inquiry or trial or any other dealing would be in accordance with the CrPC subject to any procedure prescribed in such other enactment. For purposes relevant to the task before us Section 142(c) of the NI Act specifies that, notwithstanding anything contained in the CrPC, no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138. The Apex Court held that Section 142 of the NI Act had not conferred any “special jurisdiction or power” on a Judicial Magistrate of the First Class and therefore it only excluded the powers of other Magistrates from trying offences under Section 138 thereof but did not, in any way, enhance the amplitude of its jurisdiction or powers. Speaking for the Court Hon'ble Justice Thomas upheld the sentence of imprisonment for six months but deleted the direction for payment of WP(Crl.)312/2007 17 of 42 Rs.83,000/- as compensation to the Respondent/Complainant. Obviously, this was because the quantum of the fine exceeded the sum of Rs.10,000/- set down in Section 29(2) CrPC. The ratio of this case can be applied to the facts before us in two ways. Firstly, that the powers of the Court specially empowered to try any offence can be increased and widened, but in the absence of any such stipulation, the CrPC prescriptions would apply. This is in consonance with what Sabir Ali enunciates. Secondly, enactments of this category or species restrict the vesting of powers of trial of offences under special Act only to those specially empowered to do so. Applying them to the case in hand, there would have to be an explicit provision in the OS Act overriding the Schedules of the old and the current CrPC so far as the punishment awardable by the Court is concerned. In the absence thereof even where the MM has been specially empowered by the appropriate government such Court would not have the power to try a case which attracts a possible sentence extending upto 14 years. 14. We have already reproduced Section 13 of the OS Act, which, regretfully, can be read in diverse and disparate manners. Ignoring the parenthesis found therein, the Section could indicate that no Court other than that of a Magistrate of the First Class specially empowered in this behalf by the appropriate Government can try any offence under the OS Act. The use of the phrase 'other than' WP(Crl.)312/2007 18 of 42 confounds the task of interpretation. An analysis of these words can be found in Fowler's Modern English Usage which records that their use is a matter which cannot be resolved. The Cambridge Guide to English Usage by Pam Peters states that “other” is historically an adjective meaning “second” or “alternative”. The Random House Dictionary ascribes as many as twelve meanings to the word 'other' including additional or further, different. The Concise Oxford Dictionary speaks of the use of the word 'other' to refer to “a person or thing that is different from one already mentioned or known; alternative of two; those not already mentioned. The word could also mean additional or that which is distinct from, different from, or opposite to something or oneself”. Collins Cobuild English Dictionary for Advanced Learners contains fifteen connotations of the word 'other' which include -“You use nothing other than and no other than when you are going to mention a course of