Rakesh
Kumar Jain Vs. State Through CBI [2000] INSC 413 (8 August 2000)
K.T.
Thomas & R.P. Sethi.
SETHI,J.
L.I.T.J
The criminal complaint under Section 5(4) read with Sections 5(2) & (3) of
the Official Secrets Act, 1923 (hereinafter called "the Act") was
filed against the petitioner in the Court of Chief Metropolitan Magistrate,
Delhi by the Union of India through Deputy Superintendent of Police, Central
Bureau of Investigation, SPE, Anti Corruption Unit, New Delhi. The petitioner
filed an application under Section 245 of the Code of Criminal Procedure in the
Trial Court for being discharged on the grounds that the order of the
prosecution had not been passed by an appropriate authority and that the cognizance
could not have been taken as according to him the complaint was barred by
limitation. The Magistrate rejected the application by his order dated
17.3.1995 and the revision filed in the High Court was dismissed vide the order
impugned in this appeal. Relying on the provisions of Section 13(3) of the Act,
the Trial Magistrate as well as the High Court held that Section 13(3) of the
Act provided the taking of previous consent or sanction of the appropriate
Government and the time required for obtaining such consent or sanction was to
be excluded in terms of Section 470(3) of the Code of Criminal Procedure. It
may be noticed at this stage that limitation in the instant case is stated to
have started from 24th
April, 1985 and the
complaint was filed in the Court on 19th May, 1988 apparently beyond 25 days of the
period of limitation prescribed. The plea of the complainant was that period of
79 days required for obtaining the sanction order should be excluded in
computing the period of limitation. Pointed reference was made to the order of
sanction dated 21st
April, 1988, copy of
which has been placed on the paperbook of this appeal. Accepting the plea of
the complainant, the complaint filed against the petitioner was held to be
within time.
Mr.Vijay
Bahuguna, Senior Advocate appearing for the petitioner submitted that as no
sanction or consent was provided to be taken from the Government under Section
13(3) of the Act, the complaint admittedly filed after the period of limitation
was required to be dismissed and the accused discharged in terms of Section 245
of the Code of Criminal Procedure. He did not urge any other point. In support
of his contention he has relied upon the judgment of this Court in Electrical
Manufacturing Co. Ltd. v. D.D. Bhargava [1968 (1) SCR 394]. Shri Kirit N. Rawal,
learned Additional Solicitor General, defending the impugned judgment has
submitted that the judgment relied upon is distinguishable as the mandate of
Section 13(3) is clear and unambiguous providing the obtaining of sanction
before filing the complaint. He drew our attention towards the averments made
in the petition and the order of sanction to urge that even if no sanction was
required, the complaint be deemed to have been filed within time as the
complainant and the other officials bonafidely believed that such a sanction
was necessary before the filing of the complaint.
In
order to appreciate the rival submissions of the learned counsel appearing in
the case, a cursory look at some of the provisions of the Act is necessary. The
Act has been enacted to consolidate the law relating to official secrets.
Section 5(2) provides that if any person voluntarily receives any secret
official code or pass word or any sketch, plan, model, article, note, document
or information knowing or having reasonable ground to believe, at the time when
he receives it, that the code, pass word, sketch, plan, model, article, note,
document or information is communicated in contravention of the Act, he shall
be guilty of an offence under the section for which punishment as provided
under sub-section (4). Section 6 deals with and provides punishment for unauthorised
use of uniforms, falsification of reports, forgery, personation and false
documents. Section 11 authorises a Presidency Magistrate, Magistrate of first
class or Sub-divisional Magistrate to issue such warrants under the
circumstances as specified therein. Section 13 provides that no court other
than that of the Magistrate of First Class specially empowered in that behalf,
shall try any offence under the Act. Sub-section (3) of Section 13, reads:
"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"
Sub-section (3) provides that cognizance of offence under the Act can be taken
only upon complaint which is (a) filed by order of appropriate
government; or (b) filed under authority from the
appropriate government; or (c) by some officer empowered by the appropriate
government. No consent or sanction of the Government or any authority, as
contemplated by Explanation to Sub-section (3) of Section 470 Cr.P.C., is
required for filing the complaint under the Act. 'Consent' or 'sanction'
envisaged under Section 470 Cr.P.C. cannot be equated with the 'order' or
'authority' for the purposes of filing the complaint as envisaged by
Sub-section (3) of Section 13 of the Act. Specific provisions have been made in
various statutes requiring previous consent or sanction for the purposes of
launching of prosecution against the accused under those enactments.
Explanation
to Sub-section (3) of Section 470 Cr.P.C.
obviously
refers to such consents and sanctions and not the order or authority as
required under the Act. Consent or sanction as are referred to in the
Prevention of Corruption Act, Prevention of Food Adulteration Act, various Foodgrains
Control Orders, and other similar enactments envisage the application of mind
before the grant of such consent or sanction which is a quasi-judicial
function, whereas the passing of order, individual or general, or conferment of
authority individually or generally, or empowering a person for the purposes of
filing a complaint is only an administrative action facilitating in identifying
the complainant before the court for the purposes of filing and prosecuting the
case under the Act. The Legislature, in its wisdom, thought it appropriate to
exclude only such period which is required for obtaining the previous consent
or sanction of the Government for institution of any prosecution of an offence
and not obtaining of orders or authority or naming a person for the purpose of
filing the complaint.
This
Court in Electrical Manufacturing Co. Ltd.'s case (Supra) while dealing with
Section 6 of the Import and Export (Control) Act, 1947
which provided that no Court shall take cognizance of
any offence punishable under the Act except upon complaint in writing made by
an officer authorised in that behalf by the Central Government, by general or
special order, held that the principles applicable to cases requiring sanction
have no application to filing of complaints under the Act. Section 6 of that
Act only insisted that complaint was to be made in writing and must have been
filed by an officer authorised in that behalf. In that case the Court relied
upon the observations made in S.A. Venkataraman v. The State [1958 SCR 1037]
wherein it was held:
"In
construing the provisions of a statute it is essential for a court, in the
first instance, to give effect to the natural meaning of the words used
therein, if those words are clear enough. It is only in the case of any
ambiguity that a court is entitled to ascertain the intention of the
legislature by construing the provisions of the statute as a whole and taking
into consideration other matters and the circumstances which led to the
enactment of the statute." Though Sub-Section (3) of Section 13 of the Act
is not pari materia to Section 6 of the Import and Export (Control) Act, 1947,
yet we find that the insistence of the order or authority is intended to
ascertain the filing of the complaint under the Act without requiring giving
consent or sanction to prosecute. Learned Additional Solicitor General wanted
to impress upon us that Sub-section (3) was in two parts - one dealing with the
passing of the order which necessarily meant consent or sanction and the second
dealing with the person authorised to file the complaint. On critical
examination of the plain words of the sub-section and the object underlying it,
we do not agree that the aforesaid sub-section has two parts, as argued. We
conceive no doubt that sub-section (3) of Section 13 envisages only the filing
of the complaint, by order of or under authority from the appropriate
government or by an officer empowered by such Government. If the intention of
the Legislature was to have the section in two parts, one dealing with the
grant of consent or sanction by way of order and the other part dealing with
the authority of the person to file the complaint, in that case after the words
"made by order of", there should not have been a "comma"
and the word "or". In that event for the word "or" the
Legislature must have used the word "and" and omitted the comma. The
High Court was not justified in reading between the lines to hold:@@ JJJJJ
"....that the requirement in Section 13(3) of the Official Secrets Act
amounts to taking of previous consent or sanction of the appropriate
Government. One should not go by the actual words used. What should be seen is
the intention of the legislature. The purpose of providing for previous
consent, sanction or authorisation from the appropriate government or other
authority before launching prosecution is for the protection of the alleged
offender so that irresponsible prosecution is not launched." We,
therefore, agree with the submissions made by Mr.Bahuguna that no sanction or
consent is provided to be taken from the Government under Section 13(3) of the
Act and the period spent in obtaining the orders for filing the complaint
cannot be excluded under Explanation to Sub- section (3) of Section 470 Cr.P.C.
The
mere fact that the complaint was filed 25 days after the expiry of the period
of limitation, did not entitle the accused to seek his discharge under Section
245 Cr.P.C.
because
the complainant has, under law, a right to seek for extension of time under Section
473 Cr.P.C. The complainant could satisfy the Magistrate on the facts and
circumstances of the case that the delay was explainable which was occasioned
on account of their bonafide belief to obtain the sanction for the purpose of
filing the complaint. After noticing the averments made in the complaint and
perusing the record particularly order of the Government of India dated 21st
April, 1988, authorising Sh.K.N. Tiwari, Deputy Superintendent of Police,
Central Bureau of Investigation, New Delhi to lodge the complaint, it can be
safely held that the complainant was entitled to extension of period of
limitation under Section 473 Cr.P.C. No useful purpose would be served by again
directing the complainant to approach the Trial Magistrate for the purposes of
seeking extension of period of limitation. The complainant is held to have
explained the delay in filing the complaint which required extension. The
complaint is, therefore, held to be within time and the petitioner is not
entitled to be discharged on this ground.
During
the arguments it was pointed out that as various complaints filed after
obtaining sanction from the Central Government and the courts
having given the exclusion of the period in terms of
Explanation to sub-section (3) of Section 470 Cr.P.C., this judgment of ours
may amount to upsetting all such orders and affect the pending on-going
proceedings under the Act. The accused in those cases, in such event, may be
lured to raise similar pleas as have been raised in this case for the purposes
of quashing the proceeding on the basis of this judgment. Though the
apprehension appears to be misconceived, yet we make it clear that the present
judgment would not, in any way, affect the continuing proceedings in any court
wherein the complaints, under the Act, have been filed after obtaining sanction
and the courts have given remission of the period in terms of Explanation to
Sub-Section (3) of Section 470 Cr.P.C. All such extensions shall be deemed to
be valid even under Section 473 Cr.P.C.
There
is no merit in this appeal which is dismissed with the direction to the Trial
Magistrate to deal with the case in accordance with law and expedite the
disposal of the complaint.
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