Abdul Rashid vs State of Rajasthan

B.J. Shethna, J.—Heard the learned counsel Shri Khan for the petitioner and Shri Patel and Shri Bhati for the Respondent State.

This revision petition is directed against the order dated 28-6-1997 passed by the learned Chief Judicial Magistrate in criminal case No. .../97. By the impugned order learned Magistrate held that the petitioner was not competent to file complaint u/s 13(3) of the Official Secrets'' Act, 1923 (for short the Act) and dismiss the complaint on the ground that no sanction was obtained u/s 13(3) of the Act for the offences punishable u/s 124A and 153A, I. P. C. by the complainant.

Learned counsel Shri Khan vehemently submitted that any party in person can put the criminal law into motion and at least his FIR could not have been dismissed as the learned Magistrate has not yet taken cognizance of the case. He also submitted that having sent the matter for investigation u/s 156(3), Cr. P. C. for investigation to the police subsequently he should not have reviewed his own order and dismiss the complaint. As against that learned Public Prosecutor Shri Patel and Shri Bhatia submitted that Section 13(3) of the Act clearly provides that sanction was very much necessary, therefore, learned Magistrate could not have taken cognizance, and the learned Magistrate has rightly dismissed the complaint.

On the complaint being filed by the complainant against the accused Prashant Kothari, Moti Chand Kochar and Bhagwan Sahay Trivedi of ''Rajasthan Patrika'' initially the learned Magistrate passed an order and sent the matter for investigation u/s 156(3), Cr. P. C. on 20-6- 1997 to the S. H. O., Udaimandir, but the same was returned as it was not under the jurisdiction of Udaimandir, therefore, it was sent to S. H. O. Mahamandir on 28-6-1997. Learned Magistrate dismissed the complaint on the ground that complainant was not authorised to file complaint u/s 13(3) of the Act and the Court cannot take the cognizance unless and until there is a prior sanction from the competent authority. Section 13(3) of the Act reads as under:

13(3) No court shall take cognizance of any offence under this Act unless upon a complaint made by order or under authority from the appropriate Government or some officer empowered by the appropriate Government in this behalf.

Bare reading of Section 13(3) of the Act clearly provides that no court shall take cognizance of any offence under the Act unless there is a complaint made by an order or under authority from the appropriate Govt. or some officer empowered by the appropriate Govt. in that behalf. It is an admitted position that the petitioner complainant had not obtained any sanction and he was not authorised to file this complaint. Therefore, in my opinion the learned Magistrate was fully justified in dismissing the complaint on the ground that the petitioner was not authorised to file the complaint and there was no sanction obtained to file the complaint.

There is no question of reviewing his own order passed earlier by the learned Magistrate. The learned Magistrate sent the matter for investigation u/s 156(3), Cr. P.C. S. H. O., Mahamandir brought to the notice of the learned Magistrate that complaint itself was not maintainable and the same was required to be dismissed for two reasons (i) that the complainant was not authorised under the Official Secrets Act to file the complaint and (ii) there was no sanction obtained from the competent authority. Under the circumstances the learned Magistrate had no option but to dismiss the complaint. Therefore, it cannot be said that by passing the impugned order the learned Magistrate has reviewed his own order.

In view of the above discussion, I do not find any merit or substance in this revision petition. Accordingly, it fails and is hereby dismissed.