IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 11TH JANUARY 2007 / 21ST PAUSHA 1928 Crl.Rev.Pet.No. 288 of 1998(Q) ------------------------------ CC.300/1997 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER: ---------------------------- CAPTAIN S.M.FURTADO, MANAGING DIRECTOR, M/S.FURS INVESTMENTS (P) LTD., JOHNSON PLAZA, 2ND FLOOR, AIVAO, DONA PAULA, GOA. BY ADV. SRI.KURIAN GEORGE KANNAMTHANAM SRI.KURIAN GEORGE KANNAMTHANAM SRI.A.S.SASIDHARAN SRI.MATHAI M PAIKADAY(SR.) RESPONDENTS: ---------------------- 1. SUMAN KUMAR, DY.SUPERINTENDENT OF POLICE, C.B.I./S.I.C./IV/NEW DELHI, RC 3(S)/96/CBI/SIC/IV/NEW DELHI 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.K.P.SATHEESAN, SC FOR CBI PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/01/2007, ALONG WITH CRRP NO. 197 OF 1998 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.Nos.288 of 1998 & 197 of 1998 --------------------------------------------------------- Dated this the 11th day of January 2007 O R D E R The petitioners in these revision petitions are accused 2 and 3 in C.C.No.300/97 pending before the C.J.M-Ernakulam. The petitioner in Crl.R.P.No.197/98 is the second accused. He alone prosecutes the revision now. There is no representation for the third accused who is the petitioner in Crl.R.P.No.288/1998. Altogether there were four accused persons. Accused No.4 was discharged under Section 245(1) Cr.P.C. Charges were directed to be framed against accused 1 to 3 under Section 3 of the Official Secrets Act 1923 and Section 120B of the I.P.C. 2. The law is clear that if charges are to be framed, no detailed order giving reasons is necessary and that reasons must be recorded when the accused is discharged. In the instant case, as accused No.4 was discharged, the learned Chief Judicial Magistrate has proceeded to pass a detailed order giving reasons. In that order, it is held that charges are liable to be framed against accused 1 to 3 under Section 246 Cr.P.C and that the fourth accused is entitled to be discharged under Section Crl.R.P.No.288/98 & 197/98 2 245(1) Cr.P.C. Charges have not been framed actually though in the impugned order it is held that charges are liable to be framed against accused 1 to 3. 3. The crux of the allegations against accused 1 to 3 which alone need to be considered is that the first accused along with another person came to Cochin and was here from 28/04/1995 to 02/05/1995. They, later went to Goa and the first accused and the third accused executed an agreement. Accused 1 and 2, later came to Cochin along with the vessel Galathee on 11/12/1995. The third accused also came to Cochin from Goa on 16/12/1995. It is the case of the prosecution that accused 1 to 3 had entered into a criminal conspiracy. That criminal conspiracy allegedly was to unauthorisedly survey the sea of Cochin without any legal authority and for objectionable purposes. In pursuance of that conspiracy, from 19/12/1995 to 20/12/1995, from 23/12/1995 to 24/12/1995 and from 27/12/1995 to 28/12/1995, unauthorised marine survey was held collecting vital and sensitive data in that vessel using sophisticated equipment. 4. Enquiry under Section 244 Cr.P.C was conducted before the learned Chief Judicial Magistrate. Pws 1 to 14 and Crl.R.P.No.288/98 & 197/98 3 Exts.P1 to P132 were marked by the prosecution. The accused, in the course of cross-examination of the prosecution witnesses, had marked Exts.D1 to D8. The learned Chief Judicial Magistrate, by the impugned order, held that as against accused 1 to 3, the prosecution has succeeded in establishing such a case which if unrebutted would warrant a conviction for the offences alleged against them, that is, Section 3 of the Official Secrets Act 1923 and Section 120B of the I.P.C. 5. The petitioners, claim to be aggrieved by the impugned order. According to them, charges are not liable to be framed against them. Such a case, which if unrebutted would warrant a conviction has not been established against them. In these circumstances, they contend that the impugned order under which it is held that charges are liable to be framed against him, is liable to be set aside invoking the revisional jurisdiction of this court under Section 401 Cr.P.C. 6. The learned Standing Counsel for the C.B.I, on the contrary, asserts that the prosecution has succeeded in establishing a satisfactory case which if unrebutted would warrant a conviction of the accused 1 to 3 and that the order Crl.R.P.No.288/98 & 197/98 4 framing charges is not liable to be interfered with invoking the revisional jurisdiction. Various other contentions are also raised by the learned Standing Counsel for the C.B.I in support of his assertion that these revision petitions are not liable to be considered favourably. 7. The first accused has not preferred any revision against the order framing charges. Only accused 2 and 3 have assailed the said order. The first contention of the learned Standing Counsel for the C.B.I is that all the three accused are absconding from the court below and have not made themselves available before the learned Chief Judicial Magistrate to facilitate the framing of charges and to proceed further against them. The learned Standing Counsel for the C.B.I submits that the accused persons have blatantly violated the order granting bail to them which obliges them to appear before the learned Magistrate and participate in the proceedings. In as much as the petitioners have proved themselves to be unworthy by their conduct, the discretionary powers of revision may not be invoked in their favour, it is contended. 8. I do not want to enter in detail to the controversy Crl.R.P.No.288/98 & 197/98 5 about the circumstances under which accused 1 to 3 are not now appearing before the learned Chief Judicial Magistrate. It is trite that once the records are called for in revision whether the revision petitioners prosecute the revision petition or not, the court is obliged to consider the legality, regularity, propriety and correctness of the order impugned. At any rate, I am not satisfied that the alleged unworthy conduct of the petitioners not appearing before the learned Chief Judicial Magistrate during the pendency of these revision petitions where no order of stay has been granted is sufficient to persuade this court not to consider the contentions raised by the revision petitioners against the impugned order. I shall therefore proceed to consider the contentions raised on merits. Shri.Ajay, learned counsel for the second accused has advanced detailed arguments. 9. It is next contended that these revision petitions are premature in as much as charges have not been framed already. It is held in the impugned order without any doubt or confusion that charges are liable to be framed against the petitioners. Though a proper charge in compliance with Section 246 Cr.P.C Crl.R.P.No.288/98 & 197/98 6 has not been specifically framed, I am of the opinion that these revision petitions cannot be dismissed for that reason – that these revision petitions are premature as charges have not been framed. The formality of the charges not being framed and put to accused 1 to 3 is according to me insignificant in the nature of the challenge raised in this case as it has unmistakably been held under the impugned order that charges are liable to be framed against the accused persons under Section 3 of the Official Secrets Act and under Section 120B of the I.P.C. That they are not entitled to be discharged under Section 245(1) Cr.P.C is held clearly in the impugned order. 10. Contentions are raised about the nature of jurisdiction which a Magistrate exercises under Section 245(1) and 246 Cr.P.C. It is contended by the learned Standing Counsel for the CBI that a meticulous evaluation of all the materials is not at all necessary at the stage of Section 245(1)/246 Cr.P.C. The learned counsel for the revision petitioners/accused, on the contrary, contends that the court should not lose sight of the crucial distinction which exists in the procedure which continues to be prescribed for trial of warrant cases instituted otherwise Crl.R.P.No.288/98 & 197/98 7 than on a police report. In so far as summons offences whether instituted on a police report or a private complaint is concerned and in so far as Session trials whether on the basis of a private complaint or police report is concerned, preliminary enquiry has been dispensed with altogether under the 1973 code. But the legislature had advisedly not dispensed with the necessity of an initial enquiry at the stage of Section 244 Cr.P.C. in so far as trial of warrant cases instituted on private complaint are concerned. The learned counsel for the petitioner Sri. Ajay contends that though preliminary enquiry prior to the framing of charges has been dispensed with in so far as the procedure for trial of other offences are concerned, the code zealously has retained the requirement of an enquiry under Section 244 Cr.P.C, in so far as warrant offences instituted on private complaint is concerned. It would be incorrect not to appreciate this conscious deviation made by the legislature in so far as trial of warrant offences instituted on private complaint are concerned, urges the counsel. 11. I am in agreement with the learned counsel for the petitioners that the legislature had consciously and advisedly Crl.R.P.No.288/98 & 197/98 8 retained the requirement of an initial enquiry prior to framing of charges in so far as private complaints in respect of the warrant offences are concerned. It is not difficult to ascertain the reasons. Obviously the cognizance taken on police report of warrant cases was placed on a higher pedestal as the court has the advantage of another member of the criminal adjudicatory system – the police conducting an investigation into the allegations raised. In a private complaint, such advantage is not generally available unless an enquiry under Section 202 Cr. P.C. were conducted by the learned Magistrate. Even though, broadly it is always stated that, at the stage of framing charges, the court must consider whether a prima facie case is made out against the accused to justify framing of charges, it would be myopic not to appreciate the semantic, linguistic difference which is available in the statutory provisions while considering the question of framing charges in respect of different offences of which cognizance is taken differently. At the stage of issuing process under Section 203 Cr.P.C, the court only considers whether there are sufficient grounds to proceed against the accused. The plea of the accused must be recorded in trial of Crl.R.P.No.288/98 & 197/98 9 summons cases whether instituted on police report or on the basis of a private complaint without any further vetting of materials. That is evident from Section 251 Cr.P.C which obliges the Magistrate to state the particulars of offence in a summons trial whether instituted in police report or private complaint. But in so far as warrant cases are concerned under Section 239 Cr.P.C, an accused can be discharged only when the charge is found to be groundless. In a case instituted on a private complaint discharge on the ground that the charges are groundless can be made under Section 245(2) Cr.P.C in an exceptional case. Bur normally, enquiry under Section 244 Cr.P.C will be conducted and thereafter the question has to be considered whether such a case has been made out against the accused which if unrebutted would warrant his conviction. Only then he can be discharged. Under Section 227 Cr.P.C, in so far as a Sessions offence is concerned, whether instituted on a private complaint or police report, the accused will be entitled for a discharge only when there is no sufficient ground to proceed against the accused. Under Section 227 Cr.P.C in a Sessions offence, under Section 239 Cr.P.C in a warrant case Crl.R.P.No.288/98 & 197/98 10 instituted on a police report and under Section 245(1) Cr.P.C in a warrant case instituted on a private complaint after enquiry under Section 244 Cr.P.C and under Section 245(2) Cr.P.C in a warrant case instituted otherwise than on a police complaint, at any stage prior to the framing of the charges, the courts are obliged to consider whether the accused is entitled to discharge and after it is held that the accused are not entitled to be discharged, charges are liable to be framed under Section 228 Cr.P.C in a sessions offence, under Section 240 Cr.P.C in a warrant offence police charges case and under Section 246 Cr.P.C in a warrant offence on a private complaint. The cases in which the accused to be discharged have to be eliminated under the above sections – 227,239 and 245 and in all the remaining cases it has to be presumed that the accused had committed offences and charges have to be framed against the accused. This is the unmistakable conclusion that follows from the language of Sections 228, 240 and Section 246 Cr.P.C. Once, cases in which the accused is entitled for a discharge are identified and excluded under Sections 227, 239 and 245 Cr.P.C, charges are liable to be framed in respect of the remaining cases Crl.R.P.No.288/98 & 197/98 11 under Sections 228, 240 and 246 Cr.P.C. 12. Though, broadly the statement that a prima facie case has to be established appears to be correct, one cannot omit to discern the distinction in the language employed by Sections 227, 239 and 245 Cr.P.C. I am in agreement with the learned counsel for the petitioner that in contra-distinction with Sections 227 and 239 Cr.P.C, the prosecution has a higher burden under Section 245(1) Cr.P.C to exclude the possibility of the accused being discharged. 13. Be that as it may, the crucial question is whether such a case has been established, which if unrebutted would warrant a conviction of the accused in this case. One must carefully understand that this requirement cannot lead to the corollary that after charges are framed, if nothing else is done by either side, the case must end in a conviction. That, certainly, does not appear to be the law. Even after coming to a conclusion at the stage of Section 245(1) Cr.P.C that such a case which if unrebutted would warrant a conviction has been established the obligation of the court to consider the materials in greater detail at the later stage of Section 248 Cr.P.C when acquittal or Crl.R.P.No.288/98 & 197/98 12 conviction is recorded cannot be ignored. The quality of consideration under Section 245(1) Cr.P.C to decide whether such a case has been established which if unrebutted would warrant a conviction is qualitatively different from the consideration that will be undertaken by the court at the later stage of Section 248 Cr.P.C when the court decides whether acquittal or conviction has to be recorded. That a greater burden is there on the prosecution under Section 245 Cr.P.C when compared to the burden on the prosecution under Sections 239 and 227 Cr.P.C cannot lead the court mechanically to a conclusion that consideration under Section 245(1) is identical exactly with the consideration under Section 248 Cr.P.C. 14. It is by now trite that at the stage of framing charges, the possible and the probable defences which an accused may raise need not enter the discerning mind of the court. Probable defences are not to be considered. The exercise of weighing the evidence in golden scales is not to be resorted to at the stage of Section 245(1) Cr.P.C. The intrinsic worth of the materials and their acceptability, meticulously need not be considered at the stage of Section 245(1) Cr.P.C. Such consideration will have to Crl.R.P.No.288/98 & 197/98 13 be postponed and will have to wait till the stage of Section 248 Cr.P.C. If the conscience of the court is satisfied on the basis of materials placed before the court that the accused do not deserve to be discharged and the matter deserves to be proceeded further, charges will have to be framed under Section 245(1) Cr.P.C. It is by now well settled that even a serious suspicion is sufficient at the stage of Section 245(1) Cr.P.C to justify the framing of charges against the accused. The burden at that stage is more onerous for the prosecution compared to the burden under Section 239 and 227 Cr.P.C but I repeat that it is not identical to the burden under Section 248 Cr.P.C. 15. Having said so, I shall now proceed to consider pointedly the question whether such a case has been established in this case which if unrebutted would warrant a conviction of the accused persons of the offence punishable under Section 3 of the Official Secrets Act and 120B of the I.P.C. There was undoubtedly an agreement between the accused persons to survey the ocean and the ocean-bed off the coast of Cochin. That there was an agreement is not disputed at all. The crucial question will be whether the agreement was to commit the Crl.R.P.No.288/98 & 197/98 14 offence under Section 3 of the Official Secrets Act or not. That is the million dollar question which this court will have to consider in the facts of this case. 16. It will be apposite in this context to refer to Section 3 of the Official Secrets Act. I shall initially refer to Section 3(1) of the Act. It reads as follows: “(1) If any person for any purpose prejudicial to the safety or interests of the State- (a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or (b) makes any sketch, plan, model or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or (c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy [or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States]; he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years.” Crl.R.P.No.288/98 & 197/98 15 17. An analysis of the stipulations in Section 3 in the light of the facts of this case lead to the following resolutions. The crucial relevant ingredients of Section 3(1) can be stated as follows in their relationship with the facts of the instant case. (i) A person acts for any purpose, prejudicial to the safety or interests of the state. (ii) Such person collects information. (iii) Such information might be directly or indirectly useful to an enemy or (iv) such information relates to a matter, the disclosure of which is likely to affect the sovereignty and integrity of India or the security of the State. 18. It is the case of the prosecution that the evidence establishes unmistakably the above ingredients. 19. So far as ingredients (ii), (iii) and (iv) are concerned, I do not think that there is any serious controversy in the matter. That information about the ocean-bed details and magnet field details have been conducted by the accused persons as agreed to by them earlier is not disputed. Collection of information is thus Crl.R.P.No.288/98 & 197/98 16 not in dispute at all. 20. The next question is whether such information might be directly or indirectly useful to an enemy. On this aspect also, I do not find any crucial dispute raised though there is no admission as such. The evidence indicates, I shall carefully avoid any detailed discussion of such evidence, that such particulars which are collected may be useful for those engaged in anti- submarine warfare. At any rate, indications to that effect are available from the evidence available. Ingredient 3 has thus been indicated seriously. It is not necessary to consider in detail the evidence recorded. The learned counsel for the petitioners has serious objections about the acceptability of the materials admitted in evidence by the learned Magistrate in the course of enquiry under Section 244 Cr.P.C. The learned counsel for the petitioners points out that the learned Magistrate who stated that the objection to admissibility shall be considered at a later stage, had proceeded to consider such materials without giving any ruling of that aspect, at the stage of Section 245(1) Cr.P.C. Whatever that be, the conclusion prima facie appears to be inescapable that the information collected, may be useful to an Crl.R.P.No.288/98 & 197/98 17 enemy interested in such details. Point No.3 having thus been answered in favour of the prosecution. I am not proceeding to consider in detail whether the disclosure of the information is likely to affect the sovereignty and integrity of India and the security of the State in any further detail. 21. The learned counsel for the petitioners has trained all his guns on the first ingredient of Section 3 namely whether the purpose of the petitioners was prejudicial to the safety or interests of the State. The learned counsel for the petitioners submits that there is significant and crucial absence of even a specific allegation that the petitioners had any purpose prejudicial to the safety or interests of the State. It is not specifically alleged that the petitioners were collecting the information for any enemy country. There is no specific allegation that the petitioners wanted to part with this information to any one to jeopardise the security of the nation or its safety and interests. The prosecution has not come out with any specific allegation that the objectionable acts were committed by the petitioners for any specific purpose. The learned counsel for the petitioners submits that the prosecution Crl.R.P.No.288/98 & 197/98 18 has left the accused as well as the court groping in the dark unable to ascertain the alleged purpose of the petitioners who conducted the survey of the ocean waters and ocean-bed as alleged. The learned counsel for the petitioners submits that in these circumstances the conclusion is inescapable that there is no material whatsoever to satisfy the first ingredient referred above namely that the petitioners had a purpose prejudicial to the safety or interests of the State. 22. As already indicated, I am in agreement with the learned counsel for the petitioners that no specific purpose has been established in the sense that the information was collected by the accused persons for the purpose of sharing it with any enemy or for any other nefarious or objectionable purpose. The allegation shows that though there is a vague and general allegation that the purpose was prejudicial to the safety or interests of the state, there is no further elucidation in the pleadings of what such purpose was. Even at the moment, after all the evidence under Section 244 Cr.P.C is adduced, it is not possible for this court to pinpoint and say that the specific purpose of the petitioners in collecting information was for Crl.R.P.No.288/98 & 197/98 19 themselves to make use of it for any culpable or contumacious purpose or to share the same with anyone who can make use of such information for such culpable contumacious purpose. If specific and definite pleadings and evidence on that aspect were to be insisted by the court, I have no hesitation to agree that it will have to be held that ingredient (i) alone has not been satisfactorily established. The alleged purpose has not been specifically pleaded or established. 23. But the learned Standing Counsel for the CBI relies on Section 3(2) of the Official Secrets Act and contends that it may not be necessary or possible for the prosecution to identify and specify the precise purpose which is