ORDER 1. This is a petition under S. 482 of the Code of Criminal Procedure in which the petitioner has prayed for quashing of the judgment and order dated 30th May, 2003 passed by the learned Chief Judicial Magistrate, Mandi in Special Act Case No. 158-1/2001. 126-II/2002. Vide the aforesaid impugned judgment the learned CJM, Mandi has convicted the petitioner-accused of committing the offences punishable under Ss. 3, 4 and 5 of the Indian Official Secrets Act, 1923 (1923 Act, for short). Even while convicting the petitioner-accused of the aforesaid offences under the 1923 Act, the learned CJM has acquitted the petitioner-accused of the offence under S. 120-B, I.P.C. Vide a separate order dated 31st May, 2003 the learned Court below has passed a sentence of seven years rigorous imprisonment against the petitioner. 2. The case has a very chequered history, indeed unfortunately chequered, and to the total prejudice to the petitioner. The chequered history is so unfortunate that this Court has no doubt in its mind that the petitioner-accused has been dealt with very unfairly, practically at all levels and by every one else. 3. To recount, the complaint against the petitioner-accused was presented in the Court of learned Judicial Magistrate, Ist Class (Court No. II), Mandi with respect to his allegedly committing the offences under the 1923 Act. This Court made an endorsement upon this complaint that since the complaint pertained to the jurisdiction of Police Station, Sundernagar, it be sent to the Court of learned Additional Chief Judicial Magistrate, Sundernagar. When the complaint case was presented before the learned ACJM, Sundernagar and the accused also appeared in that Court, his statement was recorded by the learned ACJM in terms of S. 13(2) of the 1923 Act whereby he opted to be tried by the Court of learned Sessions Judge at Mandi. Based upon this statement of the petitioner-accused, the learned ACJM, Sundernagar committed the complaint to the Court of learned Sessions Judge, Mandi. The learned Sessions Judge, Mandi assigned this case to the Court of learned Additional Sessions Judge, Mandi. Vide an order passed on 29th August, 2001, the learned Additional Sessions Judge, Mandi sent the complaint to the Court of CJM, Mandi to proceed in accordance with law after once again (very very strangely) obtaining the option of the petitioner in terms of S. 13(2) of the 1923 Act. Vide an order passed on 29th August, 2001, the learned Additional Sessions Judge, Mandi sent the complaint to the Court of CJM, Mandi to proceed in accordance with law after once again (very very strangely) obtaining the option of the petitioner in terms of S. 13(2) of the 1923 Act. On receipt of the aforesaid order from the learned Additional Sessions Judge, the learned CJM again made a reference to the learned Additional Sessions Judge that the petitioner had already given the option, but the said reference was rejected by the learned Additional Sessions Judge. 4. I have perused the various orders passed by the various Courts below in this case. First and foremost is the order dated 13th June, 2001 passed by the learned ACJM, Sundernagar in which he has clearly observed that this Court is not a competent Court to try the case in terms of S. 13(1) of the 1923 Act because it has not been specially empowered in this behalf by the appropriate Government. I have also perused the order dated 29th August, 2001 passed by the learned Additional Sessions Judge, Mandi also. It makes very strange reading as it refers to the subject-matter of option exercised by the petitioner-accused. On an erroneous interpretation of the provisions of the 1923 Act the learned Additional Sessions Judge, Mandi, rejecting the reference sends the case to the learned CJM, Mandi to proceed in accordance with law after obtaining the option of the petitioner in terms of S. 13(2) once again. Vide order dated 26th September, 2001 the learned CJM, Mandi asked the petitioner to exercise his option once again under S. 13(2) of the 1923 Act. The petitioner made a statement in that Court on that date that he did not want to exercise the option and that he has no objection to the case being tried in the Court of CJM, Mandi. Order dated 26th September, 2001 is reproduced hereunder. It reads thus :- "Present : Sh. C. B. Acharya, Ld. A.P.P. for the State. Accused-Sayeed Khurshib has been produced before me today by Constable Krishan Kumar No. 518 and C. Amar Singh No. 353, Police Line, Mandi, H.P. Sh. U. S. Thakur Advocate has also appeared on behalf of the accused. Order dated 26th September, 2001 is reproduced hereunder. It reads thus :- "Present : Sh. C. B. Acharya, Ld. A.P.P. for the State. Accused-Sayeed Khurshib has been produced before me today by Constable Krishan Kumar No. 518 and C. Amar Singh No. 353, Police Line, Mandi, H.P. Sh. U. S. Thakur Advocate has also appeared on behalf of the accused. The accused was asked to exercise option under S. 13(3) of the Official Secrets Act, 1923 and S. 120-B, I.P.C. The accused has made statement in this Court that he does not want to exercise option for trial in this case by learned Sessions Judge, Mandi and wants to try this case in this Court. Section 13(1) of this Act provide that 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. Therefore, the learned A.P.P. is directed to produce notification that this Court has been specially empowered to try this case under S. 13(3) of the Official Secrets Act, 1923 and S. 120-B, I.P.C. The notification be produced on or before 3-10-2001 till then the accused is remanded to judicial custody. He be produced before this Court on 3-10-2001 at 10 a.m." 5. Vide order dated 15th October. 2001 the learned CJM, Mandi once again made a reference to the learned Sessions Judge for issuing certain guidelines and clarifications. Vide order dated 20th October, 2001 the learned Sessions Judge, Mandi refused to give the guidelines or clarifications by observing that the reference ought to have been made by the CJM, Mandi to the Additional Sessions Judge, Mandi who had passed the original order. The learned CJM, Mandi accordingly passed an order on 20th October, 2001 and made a reference to the learned Additional Sessions Judge, Mandi who passed an order on 12th December, 2001 which also makes a very strange and interesting reading. The order also seems to be self-contradictory. For ready reference, it is reproduced hereunder. It reads thus :- "I have perused the order of the learned Chief Judicial Magistrate, Mandi dated 19-10-2001 and also that of learned Sessions Judge, Mandi passed on 20-10-2001 and further order of learned C.J.M., Mandi dated 20-10-2001. The order also seems to be self-contradictory. For ready reference, it is reproduced hereunder. It reads thus :- "I have perused the order of the learned Chief Judicial Magistrate, Mandi dated 19-10-2001 and also that of learned Sessions Judge, Mandi passed on 20-10-2001 and further order of learned C.J.M., Mandi dated 20-10-2001. It appears that learned CJM, Mandi without taking into consideration the facts, as to whether learned Additional Chief Judicial Magistrate, Sundernagar had powers to record the statement of accused for his option, for his trial, as per the requirement of under S. 13(2) of the Indian Official Secrets Act or not, passed orders dated 19-10-2001 and 20-10-2001. In case, the learned ACJM, Sundernagar has no powers to try the case, the options of the accused, if any, recorded by him under S. 13(2) of the Indian Official Secrets Act hereinafter referred as Act in short, apparently appears to be without any legal consequences. It appears, from the order passed by the learned CJM, Mandi dated 19-10-2001 and 20-10-2001 that the order passed by this Court has not been properly understood. No clarification as has been sought is warranted. The learned CJM is to look into the provisions of the Punjab Separation of Judicial and Executive Functions Act, 1964 (Punjab Act No. 25 of 1964) as well as the H.P. Adaptation of Laws (State and Concurrent Subjects) Order, 1973 and proceed with the trial of the case without any further delay. The accused is in custody since 26th January, 2001 and the trial is still at the initial stage i.e. for framing of charge. The learned C.J.M., Mandi is directed to take the trial of the case on priority basis, frame the charges within 15 days, after affording proper opportunity to the accused and the prosecution and thereafter, to fix the trial, on day to day basis and finally dispose the same within 6 months, positively i.e. on or before 30th June, 2002. Parties are directed to appear before the learned CJM on 17-12-2001." 6. As a sequel to the aforesaid order passed by the learned Additional Sessions Judge, Mandi on 12th December, 2001, the learned CJM, Mandi accordingly proceeded to try the case, in terms of the directions contained in the aforesaid order and concluded the trial by passing the impugned judgment dated 30th May, 2003 convicting the petitioner. As a sequel to the aforesaid order passed by the learned Additional Sessions Judge, Mandi on 12th December, 2001, the learned CJM, Mandi accordingly proceeded to try the case, in terms of the directions contained in the aforesaid order and concluded the trial by passing the impugned judgment dated 30th May, 2003 convicting the petitioner. Section 13 of the 1923 Act reads as under :- "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. (3) No Court shall take cognizance of any offence under this 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. (4) For the purposes of the trial of a person for an offence under this Act, the offence may be deemed to have been committed either at the place in which the same actually was committed or at any place in India in which the offender may be found. (5) In this section, the appropriate Government means - (a) In relation to any offences under S. 5 not connected with a prohibited place or with a foreign power, the State Government; and (b) In relation to any other offence, the Central Government." 7. It is the undisputed case of the parties that if one has a bare glance to the charge-sheet against the petitioner, the appropriate Government in this case is the Central Government. 8. On a question of fact, the learned Advocate General very fairly and frankly conceded that in terms of S. 13(1) of the 1923 Act the appropriate Government has not issued any notification or any order empowering specially any Magistrate, or for that matter any Court to try the offences punishable under the 1923 Act. 8. On a question of fact, the learned Advocate General very fairly and frankly conceded that in terms of S. 13(1) of the 1923 Act the appropriate Government has not issued any notification or any order empowering specially any Magistrate, or for that matter any Court to try the offences punishable under the 1923 Act. According to the learned Advocate General neither the Central Government nor the State Government has issued any notification or any order in terms of the 1923 Act empowering any Court or any Magistrate of any type to try the offences under this Act. In other words, no Court in the State of Himachal Pradesh has been specially empowered by the order of any appropriate Government to try any person for committing offences under the 1923 Act. On a question of fact, it is also undisputed case of the parties that has been stated so very fairly and frankly before me by the learned Advocate General that neither the Court of Additional CJM, Sundernagar nor the Court of learned CJM, Mandi was empowered by any appropriate Government in terms of S. 13(1) of the 1923 Act to try the petitioner-accused or for that matter any accused, for committing any offence under the 1923 Act. 9. That means that the petitioner has been tried by a Court which did not have any jurisdiction to try him. The trial of the petitioner was therefore vitiated from the very beginning. It was in clear violation of the expressed and mandatory provisions contained in S. 13 of the 1923 Act. Specifically and explicitly it is observed that the Court of learned Chief Judicial Magistrate, Mandi, which convicted the petitioner and sentenced him to seven years rigorous imprisonment did not have any jurisdiction to try the petitioner in this case. The petitioners conviction therefore, is held to be patently illegal and totally erroneous. It is accordingly set aside. 10. In the result, this petition is allowed. The impugned order of conviction dated 30th May, 2003 and the impugned order dated 31st May, 2003 sentencing the petitioner to seven years rigorous imprisonment, both are set aside. The petitioner is directed to be released from custody immediately and forthwith. Petition allowed. -