W.P.(Crl.) No.852/2009 Page 1 of 28 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 03.11.2009 % Date of decision: 10.11.2009 + WP (CRL.) No.852 of 2009 DR.NARAYAN WAMAN NERUKAR …PETITIONER Through: Mr. Mukul Rohtagi, Sr. Advocate with Mr.Soumitra Chatterjee, Advocate. Versus THE STATE ...RESPONDENT Through: Mr.Vikas Pahwa and Mr.Biswajit Kumar Patra, Advocate for CBI. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MR. JUSTICE AJIT BHARIHOKE 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 Yes reported in the Digest? SANJAY KISHAN KAUL, J. 1. A case was registered on 17.4.1987 under Section 120-B of the Indian Penal Code, 1860 r/w Section 3 and 5 of the Official Secrets Act, 1923 („the OS Act‟ for short) on a complaint dated 15.04.1987 of one Sh.Navin Sikand of M/s Trident Express Courier Service. A courier packet on suspicion was opened and found to contain zerox copy of documents relating to secret information on country‟s W.P.(Crl.) No.852/2009 Page 2 of 28 defence. The petitioner is one of the accused. The accused persons numbering five were alleged to have obtained, collected and communicated defence secrets prejudicial to the safety or interest of the State in pursuance to a criminal conspiracy. On completion of investigation, a complaint was filed on 07.02.1989 in the court of CMM, Delhi and the case was committed to the Court of Sessions on 13.09.1989. 2. The learned Special Judge, Delhi handing the cases under the OS Act discharged all the accused on 22.07.1995 on account of want of sanction under Section 197 of the Code of Criminal Procedure, 1973 („the said Code‟ for short). This resulted in a fresh complaint being filed on 17/18.12.1996 after obtaining the said sanction for prosecution. This complaint filed before the learned CMM was once again committed to the Court of Sessions on 01.12.1997 but met the same fate as the last complaint on 30.05.1998, on the ground that the sanction was issued without application of mind. It was, however, observed that the order would not debar the CBI from coming to the Court for a third time after complying with the requirements of law. A complaint was thus filed for the third time on 22.06.1999 when the learned CMM took cognizance and issued process against the accused for their appearance. 3. The petitioner was aggrieved by this Order of taking cognizance and issuing process and approached the W.P.(Crl.) No.852/2009 Page 3 of 28 Delhi High Court by filing W.P.(Cr.) No.40/2000. The petitioner inter alia pleaded that the delay in proceedings against him had deprived him of his fundamental rights to life and liberty and was thus in violation of Article 21 of the Constitution of India. It was also the case of the petitioner that the documents in question were regarding equipment which had already been given due publicity in various magazines and the matter was not a secret. This writ petition found favour with the Division Bench of this Court in terms of the Order dated 30.05.2001. It was found that there was no justification or reason given for defective sanction for which the prosecution alone was to blame. The Division Bench placed reliance on the judgments of the Supreme Court in Raj Deo Sharma v. State of Bihar; 1998 (5) Scale 477; JT 1998 (7) SC 1 and A.R.Antulay v.R.S.Nayak; 1992 (1) SCC 225 dealing with the guidelines for speedy trial. It was found that there was sufficient material on record to come to the conclusion that the trial had been unnecessarily delayed by the prosecution and the proceedings were quashed. 4. The CBI aggrieved by this Order preferred a SLP (Criminal) No.6873/2001 which was registered as Criminal Appeal No.858/2002 and was allowed by the Supreme Court in terms of the Order dated 26.08.2002. The Supreme Court referred to the observations of a seven-Judge Bench of that Court in P.Ramachandra Rao v. State of Karnataka; JT 2002 (4) SC 92 dealing with the W.P.(Crl.) No.852/2009 Page 4 of 28 aspect of delay in trial and Article 21 of the Constitution of India. The Judgments in two common causes cases – “Common Cause” A Registered Society v. Union of India and Ors; (1996) 4 SCC 33; JT 1996(4) SC 701 & “Common Cause” A Registered Society v. Union of India and Ors; (1996) 6 SCC 775; Raj Deo Sharma v. State of Bihar‟s case (supra) and Raj Deo Sharma (II) v. State of Bihar; JT 1999 (7) SC 317 were found not correctly decided on certain aspects and that it was neither advisable, feasible nor judicially permissible to prescribe an outer limit for conclusion of all criminal proceedings. No generalization was possible and ought not to be done. These aspects not having been examined by the High Court while quashing the proceedings, the impugned judgment of the High Court was quashed and the matter was remitted back to the High Court. It was observed that normally aspects like the question about the proper provision applicable to a case and a definite finding about the maximum sentence should be left to the Trial Court. The High Court was directed to hear the matter afresh after permitting the parties to place material on record and to take a fresh decision in accordance with law. 5. In view of the aforesaid directions, the matter was again placed before the Division Bench of this Court. The petitioner appeared in person and was heard at length as noticed by the Division Bench. The petitioner stated that W.P.(Crl.) No.852/2009 Page 5 of 28 he would be content if the case was set down before the learned Magistrate who was recording the pre-charge evidence on a day-to-day basis and made time-bound, to which the CBI made no opposition. Since the matter had been pending for quite some time before the Trial Court, the High Court directed the learned CMM, Delhi dealing with the matter to proceed with recording of pre-charge evidence on a day-to-day basis and complete the same within four weeks of the learned CMM taking up the case in the first instance. This order was passed on 13.11.2006. 6. The matter was thereafter listed before the CMM on 17.11.2006. The order passed by the High Court had not been received till date. It is the CMM who brought to the notice of the parties the Notification dated 21.06.2006 issued in exercise of power under Section 13(1) of the OS Act r/w Section 21 of the General Clauses Act, 1897 rescinding the Notification published earlier on 06.03.1998 with immediate effect though the same shall not affect anything done or omitted to be done under the earlier Notification before such rescission. The earlier Notification dated 06.03.1998 was also in exercise of powers conferred under Section 13(1) of the OS Act whereby the Central Government empowered the CMM, Delhi to try offences punishable under the OS Act. 7. Learned counsel for the CBI has explained this aspect and submitted that the CMM‟s court used to try cases for W.P.(Crl.) No.852/2009 Page 6 of 28 offences committed under the OS Act till 1985 whereafter the cases were tried by the Sessions Court in view of the judgment of the learned Single Judge of this Court in Frank Dalton Larkins and etc. v. State (Delhi Administration); 1985 Crl.L.J.377. On issuance of Notification dated 06.03.1998, once again the CMM was trying these offences but on the Notification being issued on 21.06.2006 it would only be the Court of Sessions which could try the offences under the OS Act. 8. The learned CMM in terms of the Order dated 17.11.2006 noticed the said two Notifications as well as the judgment in Frank Dalton Larkins and etc. v. State (Delhi Administration)‟s case (supra). The public prosecutor for CBI sought time to discuss the matter with the Department and thus the matter was directed to be listed on 30.11.2006. On the said date, application filed by the co-accused K.K.Jajodia was listed whereby a prayer was made to make a reference to the High Court. A separate application was also moved by the public prosecutor for CBI for passing appropriate directions by the Court. This arose on account of the direction dated 13.11.2006 of the High Court to the CMM to proceed with recording of pre-charge evidence on a day-to-day basis. CMM took the view that all matters under the OS Act were now required to be tried by the Court of Sessions and thus the direction of the High Court dated 13.11.2006 to the CMM should be construed as a direction to the Trial Court, the W.P.(Crl.) No.852/2009 Page 7 of 28 direction having arisen on account of the High Court being informed about the pendency of the matter before the CMM, Delhi. The case was committed to the Court of Sessions under Sections 323/209 of the said Code. 9. On the matter being placed before the Court of Sessions, an application was once again filed by the co-accused K.K.Jajodia challenging the said committal to the Court of Sessions. This application was, however, dismissed on 16.11.2007. A Criminal Revision Petition No.737/2007 was thereafter filed by the co-accused K.K.Jajodia in the High Court of Delhi. On 12.12.2007, interim directions were passed to the Trial Court not to pass any further orders which were modified only on 09.04.2009 to the effect that no final order would be passed and trial would proceed. The petitioner, on 30.01.2008, moved an application to be impleaded as a party in the Criminal Revision Petition No.737/2007 and on there being no objection of the CBI, the petitioner was so impleaded. The application was based on the premise that since the petitioner was also facing prosecution along with the co- accused Mr.K.K.Jajodia and his interests were inextricably connected with the complaint case as well as the Criminal Revision Petition, serious prejudice would be caused to him if he was not heard along with the co- accused K.K.Jajodia. This order was passed on 30.01.2008, but surprisingly the petitioner filed another application which came to be listed on 06.04.2009 in W.P.(Crl.) No.852/2009 Page 8 of 28 which a prayer was made that the petitioner was not interested to be impleaded as a party and thus his name may be deleted from the array of respondents. This prayer was allowed on 06.04.2009 subject to the condition that the deletion of the name of the petitioner from the Criminal Revision Petition No.737/2007 would not be used as an obstacle in the process of trial by the petitioner. 10. The petitioner thereafter proceeded to file an application in the earlier disposed of W.P.(Crl.) 40/2000 once again seeking quashing of the criminal proceedings inter alia on ground of delay but after some arguments the counsel for the petitioner withdrew the application stating that liberty be granted to the petitioner to take resort to substantive remedy to challenge the committal order. The order was thus passed by a Division Bench of the Court on 29.05.2009 clarifying that if any substantive remedy in accordance with law is available to the petitioner, the same can be availed of by him. 11. The Criminal Revision Petition filed by the co-accused K.K.Jajodia came to be dismissed two days prior to this order of 27.05.2009. The co-accused K.K.Jajodia thereafter filed a SLP (Criminal) No.4370/2009 which was dismissed on 01.07.2009 after noticing that the counsel for the petitioner therein had argued at length. 12. The present criminal writ petition was filed three days later on 04.07.2009 seeking quashing of the criminal W.P.(Crl.) No.852/2009 Page 9 of 28 proceedings. An application for interim relief for stay of proceedings before the learned Special Judge was also moved. We issued noticed on the writ petition but did not grant any interim relief and we are informed that the hearing is going on before the Special Court for framing of charge. 13. Learned senior counsel for the petitioner submitted that the scope of challenge was three-fold: i) Despite lapse of 22 years from the FIR being registered, even charges were not framed and there was inordinate delay in trial which was violative of the constitutional rights of the petitioner for a speedy trial guaranteed under Article 21 of the Constitution of India. ii) The order dated 30.11.2006 passed by the learned CMM directing the case to be committed to Court of Sessions was erroneous in law. iii) There was non compliance by the CMM of the order dated 13.11.2006 passed by the Division Bench of this Court 14. We would like to deal with the third plea at the first instance since the same is predicated on the ground that once there was a direction passed on 13.11.2006 by the Division Bench of this Court for recording pre-charge evidence on a day-to-day basis, the CMM ought not to have interpreted the Order of the Court but could have made a reference under Section 395 of the said Code. W.P.(Crl.) No.852/2009 Page 10 of 28 We find no basis for this plea since the order of the learned CMM dated 30.11.2006 only seeks to give true meaning and intent to the order passed by the Division Bench of this Court on 13.11.2006. This is so since the object of the order dated 13.11.2006 was speedy trial of the matter. In the considered view of the learned CMM, the trial had to take place before a Court of Sessions in view of the pronouncement in Frank Dalton Larkins and etc. v. State (Delhi Administration)‟s case (supra) and the two Notifications issued on 06.03.1998 and 21.06.2006. Nothing precluded the petitioner from seeking any clarification from the High Court or seeking recourse to a remedy in accordance with law in case he was aggrieved by the Order dated 30.11.2006 of the learned CMM. The petitioner chose to do neither. It is only in the present writ petition that the petitioner seeks to challenge the order dated 30.11.2006 after more than two and a half years. 15. The submission of the learned senior counsel for the petitioner is, however, predicated on the plea that since the petitioner is seeking quashing of the proceedings on account of delay in trial, lapse of two and a half years should not come in his way in challenging the said order. We find not much force in this plea for any aggrieved party must challenge orders in accordance with law within the stipulated time. The petitioner failed to avail of the remedy and now seeks to encompass the question W.P.(Crl.) No.852/2009 Page 11 of 28 of challenge to the order dated 30.11.2006 by once again raking up the issue of prejudice on account of delayed trial in this writ petition. In any case, it certainly does fall within the grievance of non compliance of the earlier order of the Division Bench dated 13.11.2006. 16. The main substratum of the present petition is the issue of delayed trial. The plea advanced on behalf of the petitioner was that the consent Order dated 13.11.2006 was based on the premise that the pre-charge evidence would be recorded and the petitioner would have an opportunity to seek discharge at that stage. Once that course of action is withdrawn, the petitioner is free to rake up the issue of delayed trial once again. 17. We are unable to accept the contention for the reason that the question of delayed trial was raised by the petitioner before this Court in W.P.(Crl.) 40/2000 and the petitioner succeeded in terms of the Order dated 30.05.2001. This order, however, did not find favour with the Supreme Court which set aside the order on 26.08.2002 and remitted the matter back to the High Court for re-consideration. The parameters of re- consideration were set out by the Supreme Court itself and no hard and fast rule could be laid down that in every case of delay of trial, the proceedings must be quashed. The seven-Judge Bench judgment of the Supreme Court in P.Ramachandra Rao v. State of Karnataka‟s case (supra) was taken note of which had W.P.(Crl.) No.852/2009 Page 12 of 28 held the legal position prevalent prior to that date as enunciated in Raj Deo Sharma v. State of Bihar‟s case (supra) and certain other cases as not sustainable. Raj Deo Sharma v. State of Bihar‟s case (supra) formed basis of the earlier order of the Division Bench dated 30.05.2001. The petitioner faced with this position while hearing was once again going in the W.P.(Crl.) 40/2000 gave a consent to the subsequent order dated 13.11.2006. The petitioner did not challenge the course of action adopted by the High Court on 13.11.2006 subsequently as it was based on consent. If the legal position has been subsequently correctly enunciated by the CMM in the Order dated 30.11.2006, there is really no further delay which has been occasioned. 18. We also cannot lose sight of the fact that the proceedings before the Trial Court remained stayed on account of the revision petition being filed by the co-accused K.K.Jajodia. This revision petition arose on account of the rejection of the plea of the co-accused K.K.Jajodia that the Court of Sessions should not try the matter. The petitioner joined in those proceedings and was impleaded as a party. The petitioner enjoyed the benefits of the said order granted on 12.12.2007 till 09.04.2009 when the interim order was modified. The petitioner suddenly sought deletion of his name only on 06.04.2009. We thus cannot say that there is such delay which would result in quashing of the criminal proceedings. W.P.(Crl.) No.852/2009 Page 13 of 28 19. The last aspect arises out of the challenge to the order dated 30.11.2006 passed by the learned CMM. We have already noticed that there is an unexplained delay in challenging to this Order, but despite this fact we have examined the plea on merits. It is the contention of the learned senior counsel for the petitioner that in terms of the provisions of Section 13 of the OS Act, the matter has to be tried by CMM unless the accused prays for a trial by the Court of Sessions. The relevant provision of Section 13 reads as under: “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 Session, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that court, notwithstanding that it is not a case exclusively triable by that court.” 20. Learned counsel has referred to the provision of Section 3(3)(c) of the said Code which reads as under: “3. Construction of references. …. (3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this Code, - W.P.(Crl.) No.852/2009 Page 14 of 28 ……. (c)to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan Magistrate.” It has thus been explained that the reference to the Presidency Magistrate or Chief Presidency Magistrate is to be deemed to be a reference to the CMM. 21. Learned counsel did not dispute that since the procedure for trial before the CMM was governed by Chapter XV of the said Code, pre charge evidence could only take place in such a trial and in a Sessions trial governed by Chapter XVIII there could be no question of such pre charge evidence. 22. We asked the learned senior counsel to explain his stand regarding the judgment of the learned Single Judge of this court in Frank Dalton Larkins and etc. v. State (Delhi Administration)‟s case (supra) where it was held, on interpretation of Section 13 of the OS Act, that Section 13(1) of the OS Act was a disabling provision so far as inferior courts are concerned but it did not lay down that the CMM was empowered to try offence even though it is exclusively triable by the Court of Sessions under the said Code. Section 13(2) of the OS Act on a para- materia basis was held to be an enabling clause. A perusal of parts I and II of said Code shows that if an offence is punishable with death, imprisonment for life or W.P.(Crl.) No.852/2009 Page 15 of 28 imprisonment for more than seven years, it is triable exclusively by the Court of Sessions. In view thereof, the offence under Section 3(1)(c) of the OS Act was clearly triable by the Court of Sessions. The learned Single Judge further elucidated the provisions of Section 4 and 5 of the said Code which read as under: 4. Trial of Offences under the Indian Penal Code and other laws. – 1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. 2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving. – Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” In the aforesaid context, it was observed as under: 7. Section 4 deals with cognizable offences triable under the IPC and other laws. Its sub- section (1) lays down that all offences under the IPC shall be investigated, enquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, its sub-section (2) provides that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the W.P.(Crl.) No.852/2009 Page 16 of 28 manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Evidently this sub-section contains a statutory recognition of the principle that a special law creating offences may also create special procedure for dealing with them. In other words, the special law creating any special procedure would not be invalid as being inconsistent with the provisions of the Code. However, there can be no manner of doubt that where an enactment provides a special procedure only for some matters, its provisions must apply in regard to those matters and the provisions of the Code will apply to the matters on which the special law is silent. This position is further amplified by S. 5 of the Code which provides that nothing in the Code shall affect any special law. The said provision embodies the maxim "generalia specialibus non derogant." 8. The question would, thereforee, arise whether the provisions contained in sub- secs. (1) & (2) of S. 13 of the Act are in any way inconsistent with or repugnant to the general provisions contained in the Code so as to override the same. As already observed by me, sub-section (1) is only intended to ensure trial of offences by a relatively senior class of a Magistrate but it nowhere lays down that offence under S. 3(1)(c) will be triable by the court of a Magistrate of the first class specially empowered or Presidency Magistrate etc. even though it falls within the category for which sentence may extend to imprisonment for 14 years. It may be pertinent to notice here that S. 3(1)(c) of the