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1996 DIGILAW 1187 (MAD)

Vijayan v. Fauziya Hassan

1996-11-27

B.N.PATNAIK, K.G.BALAKRISHNAN

body1996
JUDGMENT Balakrishnan, J.: Crime No.246 of 1994 was registered by the Vanchiyoor Police Station, Thiruvanan-thapuram under Secs.3 and 4 of the Official Secrets Act, 1923 read with Sec.34, I.P.C. The case was registered against 6 persons alleging that they committed espionage activities in Kerala and tried to smuggle out certain secret documents from the Indian Space Research Organisation (I.S.R.O.). Two of the accused are nationals of Maldives. Originally Vanchiyoor Police Station had registered another crime viz., 225 of 1994 alleging that one of the accused herein, who is a Maldives national, overstayed in Kerala. The revision petitioner herein was the then Special Branch Inspector, Trivandrum City. He questioned the Maldives national and, according to him, he came to know of the espionage activities conducted by that Maldives national along with the accused person in Crime No.246 of 1994. The revision petitioner then arrested that Maldives national and filed a report before the Station House Officer, Vanchiyoor Police Station. Thus, Crime No.246 of 1994 was registered and the Special Branch Inspector, who gave the report, was shown as the first informant. 2. Investigation in Crime No.246 of 1994 was taken over by a special team of officers under the charge of a Deputy Inspector General of Police. The D.I.G. of Police gave a report to the Director General of Police that since the extent of the case was spread over to other States of India and Foreign locations and in view of the nature of the crimes alleged to have been committed by the accused it was necessary that the Central Bureau of Investigation (C.B.I.) was better equipped for further investigation in the crime. The Government of Kerala by notification dated 2.12.1994 accorded consent to the extension of powers and jurisdiction to the members of the Delhi Special Police Establishment (C.B.I.) in the whole of State of Kerala for investigation of Crime No.246 of 1994. The Government of Kerala by notification dated 2.12.1994 accorded consent to the extension of powers and jurisdiction to the members of the Delhi Special Police Establishment (C.B.I.) in the whole of State of Kerala for investigation of Crime No.246 of 1994. The Central Government thereafter issued another notification under Secs.5 and 6 of the Delhi Special Police Establishment Act, 1946 and further investigation of Crime No.246 of 1994 was thus conducted by the C.B.I. The C.B.I., submitted a final report before the Chief Judicial Magistrate, Ernakulam under Sec.173(2) of the Crl.P.C. In the final report, C.B.I. expressed the opinion that no evidence was forth coming to prove that the accused had committed the offence punishable under Sec.120-B, I.P.C. read with 3 ,4 and 5 of the Official Secrets Act read with Sec.34, I.P.C. This final report was filed by the C.B.I. on 30.4.1996. At the time when the case stood posted to 14th May, 1996 the learned Magistrate advanced the case suo motu and posted to 2.5.1996 with direction to verify and put up. The matter was taken up on 2.5.1996, and, by a brief order, the learned Chief Judicial Magistrate discharged all the accused persons. The revision petitioner challenges the order passed by the Magistrate on various grounds. 3. The contention of the revision petitioner is that he is the first informant in Crime No.246 of 1994 and when the investigating Officer filed a report under Sec. 173(2), Crl.P.C. it was the bounden duty of the Magistrate to issue notice to the revision petitioner, he being the first informant, and that the Magistrate should not have discharged the accused without hearing him. The revision petitioner has also contended that the report filed by the C.B.I. itself would show that there are several incriminating materials against the accused persons and that the C.B.I. should have filed a charge-sheet instead of filing a “closure” report. The revision petitioner claimed privilege of notice on the basis of the decision reported in Bhagwant Singh v. Commissioner of Police Bhagwant Singh v. Commissioner of Police , (1985) 2 S.C.C. 537 . 4. Counsel for the revision petitioner Sri Ram Jethmalani contended that the revision petitioner, being the first informant, the Chief Judicial Magistrate had no other option but to issue notice to him before ordering discharge of the accused. 4. Counsel for the revision petitioner Sri Ram Jethmalani contended that the revision petitioner, being the first informant, the Chief Judicial Magistrate had no other option but to issue notice to him before ordering discharge of the accused. Counsel for the C.B.I. on the other hand, contended that the revision petitioner was not the first informant as contemplated under Sec.154 of the Crl.P.C. and he was at one point of time an investigating officer of this crime and, therefore, it was not necessary to give him notice. Counsel, for the C.B.I. also contended that the Magistrate was no competent to take cognizance of an offence under Secs.3 and 4 of the Official Secrets Act unless there was a complaint by the Central Government and, therefore, even if it was assumed that the revision petitioner was a person entitled to get notice he could not have persuaded the Magistrate to take cognizance of an offence under Secs.3 and 4 of the Official Secrets Act as there was no complaint filed by the Central Government on which the Magistrate could have taken cognizance. 5. The first question that may arise for consideration is whether the revision petitioner could be considered as the first informant in respect of Crime No.246 of 1994. Sec. 154 of the Crl.P.C. mandates that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. This information can also be given in writing. Sec. 154(2) says that a copy of the information as recorded under Sub-sec.(1) shall be given forthwith, free of cost, to the informant. This information can also be given in writing. Sec. 154(2) says that a copy of the information as recorded under Sub-sec.(1) shall be given forthwith, free of cost, to the informant. In the instant case, the specific case of the revision petitioner is that he suo motu registered Crime No.225 of 1994 of Vanchiyoor Police Station in his capacity as Special Branch Inspector of Police and in the course of the investigation of that case he questioned the accused in that crime and he came to know of the espionage activities and requested the Station House Officer, Vanchiyoor Police Station to register Crime No.246 of 1994. The revision petitioner has no case that he gave a first information regarding a cognizable offence. He did not give any details regarding the offence alleged to have been committed by foreign nationals or other four accused. He made a request to register a case under Secs.3 and 4 of the Official Secrets Act, 1923 an the case was, accordingly, registered. That too was done in his official capacity. We are also told that the revision petitioner was one of the members of the investigating team who was entrusted with the task of the investigation of Crime No.246 of 1994. Therefore, it is clear that the role played by the revision petitioner was not of a first informant in the case. 6. The question to be considered is whether such a person is entitled to get a notice from the court when a final report is filed under Sec.173(2)(1) of the Crl.P.C. This question was directly considered by the Supreme Court in Bhagwant Singh v. Commissioner of Police Bhagwant Singh v. Commissioner of Police , (1985) 2 S.C.C. 537 . Petitioner therein given the First Information Statement before the Police alleging that his daughter Gurinder Kaur was allegedly hurt by her husband and his parents on account of the failure to satisfy their demand for dowry. In that case, the C.B.I. filed final report before the Chief Metropolitan Magistrate stating that no offence appeared to have been committed by the accused. The Supreme Court directed that the petitioner should be heard before a decision is taken by the Magistrate. In that case, the C.B.I. filed final report before the Chief Metropolitan Magistrate stating that no offence appeared to have been committed by the accused. The Supreme Court directed that the petitioner should be heard before a decision is taken by the Magistrate. It was pointed out by the Supreme Court that when a report is filed by an officer in charge of the police station under Sub-sec.(2) of Sec.173 stating that no offences had been made out, the Magistrate on receipt of such report can accept the report and drop the proceedings or he may disagree with the report taking the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process or he may direct further investigation to be made by the police under Sub-sec.(3) of Sec.156 and if the Magistrate takes the view that there is no sufficient ground for proceeding further the first informant would be certainly be prejudiced because the First Information lodged by him would have failed in its purpose wholly or in part and the Supreme Court was of the view that if the first informant is given an opportunity of being heard he can appraise the Magistrate of all situations and persuade him to take cognizance of the offence or to order further investigation of the case and, therefore, it was held that the first informant was entitled to get notice from the court before a decision is taken in the matter. The Supreme Court held thus: “In a case where the Magistrate to whom a report is forwarded under Sec.173(2)(1) decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. Unnecessary, delay on account of the difficulty of effecting service of the notice on the informant cannot be valid objection against this view because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under Sec. 173(2)(i). Unnecessary, delay on account of the difficulty of effecting service of the notice on the informant cannot be valid objection against this view because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under Sec. 173(2)(i). Moreover, the difficulty of service of notice on the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.” 7. Is the petitioner herein entitled to get such notice in view of the above decisione Petitioner is not entitled to get any notice in the instant case for the reason that he was not the first information in respect of Crime No. 246 of 1994. Even if it is assumed that he is the first informant, he is not entitled to get notice as he would not be in a position to persuade the Magistrate to reject the report and to take cognizance of the offences, if any, already disclosed in the report. In Crime No. 246 of 1994, the allegations are that the accused committed the offences punishable under Sec. 3 and 4 of the Official Secrets Act, 1923. Sec. 13(3) of the Official Secrets Act says that no court shall take cognizance of an offence under the 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. Admittedly, the appropriate Government referred to under Sec. 13(3) of the Act is the Central Government or by any officer empowered by that Government. There is no complaint by such authority alleging that the accused in Crime No.246 of 1994 committed offences under Secs.3 and 4 of the Official Secrets Act. Therefore, it is clear that the Magistrate before whom the final report was filed, was not empowered to take cognizance of the offences alleged on the basis of that report. Even under Sec.173(2)(i) the report is to be filed before the Magistrate who is empowered to take cognizance of the offences on police report. 8. Here, the filing of the report was done by the C.B.I. to the effect that they have stopped investigation and that the accused are not required for the time being. Even under Sec.173(2)(i) the report is to be filed before the Magistrate who is empowered to take cognizance of the offences on police report. 8. Here, the filing of the report was done by the C.B.I. to the effect that they have stopped investigation and that the accused are not required for the time being. We do not think that the petitioner herein is entitled to get notice from the Magistrate before the impugned order was passed. Petitioner has misconceived his remedies and the Crl.P.C. is without any merit and it is dismissed. V.K.-----Petition dismissed.