Crl.REV.P. 737-2007 Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.REV.P. 737/2007 % Date of reserve: 19.05.2009. Date of decision: 27.05.2009. A.K. JAJODIA …PETITIONER Through: Mr. A.S. Chandhiok, Sr. adv., Mr. A.K. Sengupta, Mr. Suraj Prakash, Advs. Versus THE STATE (THROUGH CBI) ...RESPONDENT Through: Mr. Vikas Pahwa, Addl. Standing Counsel with Mr. Saurabh Soni, adv. for State. CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to Yes see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MOOL CHAND GARG, J. 1. This order shall dispose of the aforesaid petition filed under Section 397/401 of the Code of Criminal Procedure challenging the correctness legality and propriety of the order dated 16.11.2007 passed by the learned Special Judge CBI Delhi dismissing the application filed by the petitioner (one of the accused) with a prayer to remand the Sessions case No. 5/2006 titled ―CBI through Chanda Rani Vs. K.K. Jajodia and Ors.), arising out of a Complainant under Section 3/5 of the Official Secrets Act (hereinafter referred to as O.S. Act) read with Section 120B IPC, to the Chief Metropolitan Magistrate for complying with the provisions of proviso to Sub Section (2) of Section Crl.REV.P. 737-2007 Page 2 of 35 202 and Section 208 of the Cr.P.C before committing the case to the sessions. 2. Briefly stating the facts giving rise to the filing of the present petition are: i) Complaint dated 15.04.1987 was filed by one Mr. Navin Sikand, Regional Manager of a Courier Company viz. M/s. Trident Express, Trident Travels & Tours (P) Ltd., on or about 17.04.1987 to the Central Beurue of Investigation (CBI) which resulted in the registeration of an FIR/Criminal Case being RC 4(S)/87-SIU-1 by its Special Investigating Cell under Section 120B IPC read with Sections 3 and 5 of the OS Act, against the Partners/Proprietors/Directors of M/s. William Jacks (Pvt.) Ltd. In the said complaint inter alia it was alleged;- (a) That a letter addressed to one Mr. Marc De Saint Denis, M/s. Coprint, Paris was received by the aforementioned Courier Company for dispatch on 04.04.1987 as per Airway Bill No. 236 dated 04.04.1987. Another letter addressed to Mr. J.W.H. Weavers, Netherlands was also received on 13.04.1987 vide Airway Bill No. 893 dated 13.04.1987 by the same Courier Company for dispatch. Both these covers were picked up by the courier boys of the aforesaid Courier Company from M/s. William Jacks and the particulars of the sender on Airway Bills were given as one Mr. K.C. Das, Kiran Bhawan, Barakhamba Lane,New Delhi and Mr. Kashyap, Kiran Building, Barakhamba Road, New Delhi respectively and the charges were paid in cash. (b) That on suspicion, the covers were opened and inside the covers addressed to the person in Paris was a Xerox copy of ―User Evaluation Trial Report on Crl.REV.P. 737-2007 Page 3 of 35 R.A.T.A.C.S. battlefield Surveillance Radar BFSR Phase-I‖ pertaining to the Army, Ministry of Defence and the other cover, addressed to the person in Netherlands, contained draft letters in 13 pages containing details of some radars Fly Catchers for detection and tracking of low level enemy aircrafts. ii) In view of that after the FIR was registered, the CBI investigated the matter and thereafter, Shri R.S. Dwivedi, Deputy Superintendent of Police, CBI filed a complaint on 07.02.1989 in the Court of the Chief Metropolitan Magistrate (CMM), Delhi who took the cognizance of offences under Section 120B IPC read with Sections 3 and 5 of the OS Act and Sections 3 and 5 of the OS Act against the accused persons including the petitioner and transferred the case to Addl. Chief Metropolitan Magistrate (ACMM). Subsequently vide order dated 19.09.1989, the ACMM to where the case was transferred by CMM committed the case to the Court of Sessions since the offence under Section 3 of the OS Act was exclusively triable by the Court of Sessions. iii) That vide order dated 22.07.1995 Shri Dinesh Dayal, Learned Special Judge, Delhi discharged the accused persons as prior sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) to prosecute two of the accused persons viz. Dr. W.N. Nerurkar and Brig. R.S. Deol was not obtained. iv) That after a year Shri S.S. Sandhu, Inspector, CBI filed a Second Complaint dated 17.12.1996 in the Court of the CMM based on similar allegations after the Sanction was given under Section 197 Cr.P.C. The CMM again took cognizance of the offences and issued process. Subsequent to the appearance of the accused persons, the case was again committed to the Court of Session on 01.12.1997. Preliminary Objection was raised on behalf of some of the Crl.REV.P. 737-2007 Page 4 of 35 accused that the Sanction was accorded without application of mind and Shri Dinesh Dayal, Learned Special Judge, Delhi by his judgment and order dated 30.05.1998 discharged the accused persons again. v) Again after a period of fourteen months, a third Complaint on the same allegations was filed in the Court of the Learned CMM on 22.06.1999 along with the requisite sanction under Section 197 of the Cr.P.C. This time also the CMM issued process against all the accused persons. vi) It may be observed here that the complaint filed by the CBI was also accompanied with the report of investigation carried out by it on the basis of the FIR registered at the instance of M/s Trident Express. The investigation report was accompanied with copy of the statement of the witness recorded under Section 161 Cr.P.C. as well as the documents seized by the prosecution during the course of investigation. It may be observed here before that, in exercise of powers conferred under Section 13(1) of the OS Act, 1923 (Act No. 19 of 1923), the Central Government vide Notification No. G.S.R. 126 (E) dated 06.03.1998 published in the Gazette of India, Part II, Section 3, Sub- Section (i), conferred jurisdiction/power upon this Learned Court viz. the Court of the Learned CMM Delhi, to try offences punishable under the OS Act, 1923. vii) On 9.10.2000, the petitioner filed an application before the Learned CMM for recalling the summoning order dated 16.08.1999 on the grounds mentioned therein and to follow the procedure laid down in the proviso to Section 202 (2) Cr.P.C. viii) The aforesaid application was disposed off vide order dated 11.02.2004, with the following observation: - “It may be mentioned that vide notification No. 1/17017/16/91-1 SUS (DII) dated 06.03.1998 issued under the signature of Joint Secretary of India Ministry of Home Affairs, CMM, Delhi has been empowered by the Crl.REV.P. 737-2007 Page 5 of 35 Central Government to try the offence punishable under Official Secret Act, 1923, notwithstanding the fact that under Section 3 of OS Act, offence is punishable up to 14 years. In Cr.P.C. offences under Section 377 IPC, 409 IPC and 467 IPC are punishable with imprisonment of life or custodial sentence of specified years. But still offences are M.M. triable one under the scheme of Cr.P.C. Moeover, vide 13(2) of the OS Act liberty has been given to the accused to claim for trial by the court of Sessions. It has been provided that Magistrate shall, if he is not discharging the accused, commit the case for trial to Sessions Court, although it is not a case exclusively triable by the Court. “In this case, still the stage of charge has not been reached. Prosecution would lead its precharge evidence and thereafter, it would be decided whether any charges are made out or not against the accused persons and at that stage accused shall also be at liberty to claim trials by the Sessions Court whereupon it shall be committed to Learned Sessions Court if there is no discharge by the CMM in this case. Ld. Predecessor took cognizance of the complaint after duly adverting to the earlier two complaints on the same set of facts, which on each committal was dismised by ld. Sessions Court for technical reasons.” ix) That after dismissal of the application the CMM fixed the case for recording pre-charge evidence on 22.03.2004. That thereafter, from time to time, the case was adjourned for recording pre-charge evidence. x) When prosecution obtained summons against its witnesses and on certain occasions, though witnesses attended the Court to depose, they were not examined for various reasons. That in the meantime, by another Notification No. G.S.R. 373 (E) dated 21.06.2006 published in Gazette of India, Part-II, Section 3, Sub-Section (i), the Central Government, in exercise of the powers conferred by Sub- Section (1) of Section 13 of the OS Act, 1923, has rescinded the earlier Notification No. G.S.R. 126 (E) dated 06.03.1998 empowering CMM to try offences punishable under the OS Act, 1923. The said notification reads as under: Miinistry of Home Affairs Notification New Delhi, the 21st June, 2006 G.S.R. 373 (E) – In exercise of the powers conferred by Sub Section (1) of Section 13 of the Official Secrets Act, 1923 (19 of 1923) read with Section 21 of the General Clauses Act, 1897 (10 Crl.REV.P. 737-2007 Page 6 of 35 of 1897), the Central Government hereby rescinds the Notification published in the Gazette of India, Part II Section 3, Sub Section (i), vide G.S.R. 126 (E) dated the 6th March, 1998, empowering the Chief Metropolitan Magistrate, Delhi under the said Act, with immediate effect, such recission shall not affect anything done or omitted to be done under the said Notification before such rescission. (F.No. 17017/7/2005-IS-I) VIRENDRA KUMAR, Under Secy 3. It may be observed that before this, one of the co-accused namely Dr. N.W. Nerurkar had filed a writ petition for quashing of the proceedings against him on the ground of delay which was allowed by a Division Bench of this Court but the said order was reversed by the Apex Court in a SLP filed by the CBI with the following directions vide order dated 26.08.2002. Accordingly the judgment of the High Court is quashed and the matter is remitted back to the High Court. The High Court shall hear the matter afresh, permit the parties to place materials which according to it will be relevant for the purpose of determination of the dispute before it, and take a fresh decision in accordance with law. As mentioned above, we are not expressing any opinion on the merits of the case.” 4. The writ petition of Dr. N W Nerurkar came up for hearing before a Division Bench of this Court subsequent to the order of remand by the Apex Court, which was disposed off as under: ―In the facts and circumstances of this case, we direct learned CMM, Delhi, dealing with the matter to proceed with recording of the pre-charge evidence on a day-to- day and complete the same within 4 weeks of his taking up the case in the first instance. With the above directions, this writ petition stands disposed of. Copy of this order be given dasti to the parties and sent to the CMM for compliance.‖ 5. During the course of hearing the CMM who was recording pre- charge evidence, after the notification permitting the CMM to try the offences under of Officials Secrets Act was withdrawn committed the case to the learned Court of Sessions without completing the recording Crl.REV.P. 737-2007 Page 7 of 35 of precharge evidence and directed all the accused persons to appear before the Court of Learned District and Sessions Judge on 05.12.2006. 6. The petitioners along with other accused persons appeared before the Sessions Judge on 05.12.2006 when the case was transferred to a Special Judge and the case was listed on 22.01.2007. It is thereafter the petitioner also filed an application before the Learned Special Judge to remand the case to the CMM with a direction to follow the procedure laid down in proviso to Sub Section (2) of Section 202 and the procedure laid down in Section 208 Cr.P.C. but the said application was also dismissed vide impugned order dated 16.11.2007 and consequent thereupon the petitioner has filed the present petition. 7. It is the submissions of the petitioner that despite withdrawal of the notification dated 06.03.1998 empowering the CMM to try offences punishable under the Official Secrets Act, in view of the order dated 13.11.2006 passed by the Hon’ble High Court Delhi directing the CMM to conclude recording of pre-charge evidence within 4 weeks, the CMM was bound to have recorded pre-charge evidence. However, this ground has not been pressed during the course of arguments. 8. It is submitted by the petitioner that dismissal of the application vide order dated 16.11.2007 is based upon a misconceived understanding of the law relating to committal of cases instituted upon the complaint to the Court of Session and is liable to be set aside on the following grounds: I. Because the Learned Special Judge failed to appreciate that the proviso to Sub-Section (2) of Section 202 Cr.P.C. is Crl.REV.P. 737-2007 Page 8 of 35 a mandatory requirement and as such the Learned CMM was duty bound to comply with the aforesaid provision. He was oblidged to direct the Complainant to produce all his witnesses, examine them on oath and before committing the case to the Court of Session, to supply copies of all the statements of witnesses so recorded and the documents relied upon by the prosecution to the accused free of cost. II. Because the learned Special Judge also failed to take note of the mandatory requirement of Section 208 Cr.P.C. which cannot be complied with unless there is due compliance of proviso to Section 202 (2) Cr.P.C. III. Because the Lerned Special Judge ought to have set aside the order dated 30.11.2006 passed by the Learned CMM committing the case to the Court of Session solely on the ground that there was non-compliance of mandatory provision i.e. proviso to Sub-Section (2) of Section 202 Cr.P.C. and should complied with the said provision and proceed in accordance with law. IV. Because the Learned Special Judge ought not to have relied upon the judgment passed by this Hon’ble Court in the case of Frank Dalton Larkins and etc. Vs. State (Delhi Administration) reported in 1985 Crl.L.J. 377 since the said judgment suffers from various glaring infirmities. The Petitioner submits that in order to avoid repetition the submissions incorporated in the foregoing paragraphs 3 (f) (i) to 3 (f) (vii) may be treated as grounds in support of his prayer for setting aside the order dated 16.11.2007 impugned herein. V. Because in the judgments delivered by the Hon’ble Supreme Court in the cases of Rosy & Anr. Vs. State of Kerala & Ors. reported in (2000) 2 SCC 230 and Birendra K. Singh Vs. State of Bihar reported in 2000 (2) SCC 498 the proviso to Sub Section (2) of Section 202 Cr.P.C. has been held to be mandatory in a complaint Case more so when it Crl.REV.P. 737-2007 Page 9 of 35 is triable by Sessions in view of Section 203 of the code Reference has also been made to the recommendations of the Law Commission in its 41st Report (incorporated in the foregoing paragrah No. 7 of this petition). It is submitted that in view of that the Learned Special Judge ought to have held that the obligation of the Learned CMM to call upon the complainant to produce all his witnesses for their examination on oath cannot be avoided and is a must. VI. Because the Learned Special Judge misconceived the scope and application of the law laid down by the Hon’ble Supreme Court in the cases of Rosy and Birendra K. Singh (supra) as the Learned Judge did not read the aforesaid judgments in their proper perspective and hence the order of the Learned Judge dismissing the application of the petitioner based upon a partly concurred judgment is not legally tenable. VII. Because the Learned Special Judge ought to have held that when the petitioner did raise his objection about the non- compliance of the mandatory provision of Section 202 (2) proviso at the earliest opportunity, the Learned Special Judge ought to have remanded back the matter to the Court of Learned CMM for its compliance in accordance with law. VIII. Because the Learned Special Judge ought to have held that when a particular provision of law has been declared mandatory by the Hon’ble Supreme Court, the non- compliance of the same, if brought to the notice of the Learned Court at the earliest opportunity, is by itself an illegality and prejudice is apparent, inherent and implicit so far the procedure of trial of the accused is concerned. 9. The respondents CBI on the other hand opposed the prayers made by the petitioner and submitted that the petition is completely mis-conceived, inasmuch as in the present case, the complaint had to Crl.REV.P. 737-2007 Page 10 of 35 be filed by the CBI in view of the mandatory provisions contained in the Official Secrets Act. However, the complaint in this case was accompanied with the report of the investigation conducted by the CBI in the FIR which was registered on the Complaint of the Courier Company. The report also included the statement of witnesses recorded under Section 161 Cr.P.C. as well as the documents relied upon by the prosecution and, therefore, despite this being a complaint case it was a case based upon a report of investigation carried out by the CBI of which copies have been duly supplied to the petitioner and other accused persons. It is submitted that since the complaint was filed by a public servant, his examination was dispensed with by the Magistrate under Section 200 (2) Cr.P.C. and therefore holding of an enquiry of the evidence in such a case before committing the case to the Sessions/ Special Judge was discretionary as per the proviso contained under Section 202 despite this being a Sessions triable case. It is also submitted that even otherwise when the competent Court was ceased of a matter where both complaint and the report of complete investigation coupled with statements recorded under Section 161 Cr.P.C. and the documents was available on record, what was required to be done was only to take cognizance on the basis of those documents i.e. the averments made in the complaint and the report of investigation there was no necessity of examination of the witnesses of the complainant before committal as precharge evidence as the copies of the statement recorded under Section 161 of Cr.pc was sufficient to enable the petitioners to argue their case as to whether charges were made out or not. It is also submitted that the peculiar facts of this case were not before the Apex Court in Rosy Case while exactly a similar Crl.REV.P. 737-2007 Page 11 of 35 case was before the ld. Single Judge of this court in the case of Frank Dalton (Supra). Even otherwise in the given facts of this case can be tried as a case based upon police report in view of Section 210 Cr.P.C. once the copies of the report of investigation and the statement recorded under Section 161 Cr.P.C. and the documents stands supplied to the petitioner. 10. Thus, it is submitted that the judgments cited by the petitioner are of no consequence and the order of the Magistrate in committing the case to the Special Judge and the order of the Special Judge dismissing the application moved on behalf of the petitioner vide order dated 16.11.2008 is valid and requires no interference by this Court while exercising powers of revision under Section 397 Cr.P.C. 11. It may be observed here that vide orders dated 09.04.2009 the matter was admitted for regular hearing and interim orders were modified. However, when an application was filed by the petitioner i.e. Crl.M.A. No. 5361-64/2009 the matter was taken up for hearing it was submitted on behalf of the petitioner that the point which was raised by them in their application of preponing of the proceeding and amendment of the order dated 09.04.2009 was same and in fact the entire petition can be disposed of after hearing arguments from the petitioner only on the point ―whether the procedure prescribed in the proviso to Sub Section (2) of Section 202 was mandatory in the present case as the offence involved are exclusively triable by Sessions Court‖. 12. Accordingly, with the consent of the parties arguments were heard only on the main petition. The case on behalf of the petitioner was argued by Mr. V.V. Lalit, Senior advocate while on behalf of the Crl.REV.P. 737-2007 Page 12 of 35 respondents Mr. Vikas Pahwa, Addl. Standing counsel made his submissions. While the petitioners have mainly relied upon the judgment of the Hon’ble Supreme Court delivered in the case of Rosy & Anr. Vs. State of Kerala & Ors. reported in 2002 (2) SCC 230 the respondents have relied upon the judgment delivered by a Learned Single Judge of this Court in the case of Frank Dalton Larkins etc. Vs. State (Delhi Administration) 1985 Crl.L.J. 377. 13. I have given my thoughtful considerations to the rival submissions and have gone through the facts of the case. Before adverting to the respective contentions it would be appropriate to take note of the provisions contained in Chapter XV of the Cr.P.C. which deals with the trial of a complaint case. Those provisions are reproduced hereunder: 200. Examination of complainant.—A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses— (a)if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b)if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 202. Postponement of issue of process.—(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Crl.REV.P. 737-2007 Page 13 of 35 Provided that no such direction for investigation shall be made,— (a)where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b)where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 203. Dismissal of complaint.—If, after considering the statements on oath (if any) of