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1996 DIGILAW 501 (KER)

Vijayan v. Fauziya Hassan

1996-11-27

B.N.PATNAIK, K.G.BALAKRISHNAN

body1996
Judgment :- K.G. Balakrishnan, J. Crime No. 246 of 1994 was registered by the Vanchiyoor Police Station, Thiruvananthapuram under S.3 & 4 of the Official Secrets Act, 1923 r/w S.34 IPC. 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 (ISRO). 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 Maldive national and, according to him, he came to know of the espionage activities conducted by that Maldive national along with the accused person in Crime No. 246/94. The revision petitioner then arrested that Maldive national and filed a report before the Station House Officer, Vanchiyoor Police Station. Thus, Crime No. 246/94 was registered and the Special Branch Inspector, who gave the report, was shown as the first informant. 2. Investigation in Crime No. 246/94 was taken over by a special team of officers under the charge of a Deputy Inspector General of Police. The DIG 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 (CBI) was better equipped for further investigation in the crime. The Government of Kerala by notification dated. 2,12.94 accorded consent to the extension of powers and jurisdiction to the members of the Delhi Special Police Establishment (CBI) in the whole of State of Kerala for investigation of Crime No. 246 of 1994. The Central Government thereafter issued another notification under Ss.5 and 6 of the Delhi Special Police Establishment Act, 1946 and further investigation of Crime No. 246/94 was thus conducted by the CBI. The CBI submitted a final report before the Chief Judicial Magistrate, Ernakulam under S.173(2) of the Cr. The Central Government thereafter issued another notification under Ss.5 and 6 of the Delhi Special Police Establishment Act, 1946 and further investigation of Crime No. 246/94 was thus conducted by the CBI. The CBI submitted a final report before the Chief Judicial Magistrate, Ernakulam under S.173(2) of the Cr. P.C. In the final report, CBI expressed the opinion that no evidence was forth coming to prove that the accused had committed the offence punishable under S.120B IPC r/w 3,4 & 5 of the Official Secrets Act read with S.34 IPC. This final report was filed by the CBI on 30.4.96. At the time when the case stood posted to 14th May, 1996 the learned Magistrate advanced the case suo mote and posted to 2.5.96 with a direction to verify and put up. The matter was taken up on 2.5.96 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. 246/94 and when the investigating officer filed a report under S.173(2) Cr.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 CBI itself would show that there are several incriminating materials against the accused persons and that the CBI 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 (1985 (2) SCC 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. Counsel for the CBI, on the other hand, contended that the revision petitioner was not the first informant as contemplated under S.154 of the Cr.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 CBI, on the other hand, contended that the revision petitioner was not the first informant as contemplated under S.154 of the Cr.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 CBI also contended that the Magistrate was not competent to take cognizance of an offence under S.3 & 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 S.3 & 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 information respect of Crime No. 246 of 1994. S.154 of the Cr. 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 informanty; 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 flu's behalf. This information can also be given in writing. S.154(2) says that a copy of the information as recorded under sub-s.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 mote registered crime No. 225/94 of Vanchiyoor Police Station in his capacity as Special Branch Inspector of Police and in the course of the investigation of that case he ques joined 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. 246/94. The revision Petitioner has no case that he gave a first information regarding a cognizable offence. 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 are quest to register a case under Ss.3 & 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. 246/94. 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 S.173(2) of the Cr.P.C. This question was directly considered by the Supreme Court in Bhagwant Singh v. Commissioner of Police (1985) 2 SCC 537. Petitioner therein had given the First Information Statement before the Police alleging that his daughter Gurinder Kaur was allegedly burnt by her husband and his parents on account of the failure to satisfy their demand for dowry. In that case, the CBI 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 CBI 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-s.(2)(1) of S.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-s.(3) of S.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 S.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 a 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 S.173(2)(i). Unnecessary, delay on account of the difficulty of effecting service of the notice on the informant cannot be a 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 S.173(2)(i). Moreover, the difficulty of service of notice on the informant cannot provide any justification for depriving 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 decision? Petitioner is not entitled to get any notice in the instant case for the reason that he was not the first informant In respect of Crime No. 246/94. 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 cognisance of the offences, if any, already disclosed in the report. In crime No. 246/94, the allegations are that the accused committed the offences punishable under S.3 & 4 of the Official Secrets Act, 1923. S.13(3) of the Official Secrets Act says that no court shall take cognizance of an offence under that 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 S.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. 246/94 committed offences under Ss.3 & 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 S.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 CBI to the effect that they have stopped investigation and that the accused are not required for the time being. Even under S.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 CBI 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. R.P. is without any merit and it is dismissed.