Krishna Sheriff and Nazir Hussain vs Inspector of Police, C.B.C.I.D., Madras

Ramalingam, J.—Krishnan, the petitioner in Crl.M.P.683 of 86 and Sheriff and Nazir Husain the petitioners in Crl.M.P. 789/87 are the

accused 5, 1 and 3 respectively before the learned Chief Metropolitan Magistrate. Egmore in CC. 14911 of 1983. They have filed these petitions

to call for the records in the above CC. and to quash the proceedings so far as it relates to them under the following circumstances.

Krishnan is a cameraman in the Government Press, Mint, Madras. Sheriff is the Foreman, Top Secret section in the same Press. Nazir Husain is

an Under Secretary, Tamilnadu Public Service Commission. The second accused. Natesan is a Machine Minder. Top Secret Section. Government

Press. Mint, Madras and the fourth accused Nagabooshanam is an Assistant Inspector in the Madras Corporation Audit, Madras.

On 13-2-1983 the Tamil Nadu Public Service Commission conducted Group IV Examination in English and General Knowledge papers at

various centers in Tamilnadu. The question papers concerning the said examinations were leaked out in large scale at various examination centres

prior to 13-2-1983. As a result, an enquiry was conducted by the Deputy Inspector General of Police, C.I.D. (Crime Branch, Madras). In that

enquiry it was found that the aforesaid persons conspired together and committed theft of the question papers relating to English and General

Knowledge from the Government Press, Mint, Madras. The act of the accused persons if proved would be an offence punishable under S. 381 of

the Indian Penal Code. Further the act of Sheriff and Natesan is in contravention of the provisions contained in S. 5(1)(a) of the Official Secret Act

192 (Central Act 19 of 1923) (hereinafter referred to as the Act). The acts of Nazir Hussain and Nagabooshanam and that of Sheriff and Natesan

are also in contravention of S. 5(1)(a) of the Act. It is further alleged that Krishnan in pursuance of the conspiracy abetted the approver, R. Radha

to commit the offence of voluntarily receiving the aforesaid question papers in contravention of the provisions contained in S. 5(2) of the Act.

On the materials placed before the Government, the Government satisfied that offences punishable under S. 120-B I.P.C., and S. 5(1)(a) and

5(2)5(2) read with 5(4) of the Act have been made out. On that ground, the Government of Tamil Nadu in exercise of the powers conferred by

Sub-S.(3) of S. 13 of the Act, passed G.O.No. C/248-10-83 Public (SC.) Department, dated 25-10-1983 empowering the Inspector of Police,

Crime, Branch, C.I.D, Madras to make a complaint against the aforesaid persons for the offences mentioned above. Instead of filing a private

complaint as provided under S. 13 of the Act, Thiru Munir Syed Hoda, I.A.S. Controller of Examinations, Tamil Nadu Public Service

Commission, filed a complaint before the Crime Branch, C.I.D. Madras and the same was registered as Cr. No. 7/83. Investigation was taken up

by the Inspector of Police, C.B.C.I.D. Madras and the aforesaid persons have been chargesheeted before the Chief Metropolitan Magistrate,

Egmore, Madras.

Under those circumstances, Nagabooshanam the fourth accused filed M.P. 1654 of 1985 and the other accused persons filed M.P. 1709 of

1985 before the Chief Metropolitan Magistrate''s Court to discharge them on the ground that a proper complaint, as contemplated under S. 13 of

the Act, has not been filed. The learned Chief Metropolitan Magistrate passed a common order dt. 12-9-1985 dismissing the above M.Ps.

Accused 1 and 3 (Petitioners in Crl.M.P. 789/86 preferred Crl.R.C. 144 of 1985 accused 2 and 5 preferred Crl.R.C. 145 of 1985 and the fourth

accused preferred Crl.R.C. 146/1985 before the Principal Sessions Judge, Madras against the order of dismissal.

Learned Principal Sessions Judge Madras concurred with the orders passed by the trial court and dismissed the criminal revisions. It is under

those circumstances that these two petitions have been filed by the accused 5 and 1 and 3 respectively to quash the proceedings in C.C. 14911/83

on the ground that proper complaint has not been filed as contemplated under S. 13 of the Act and as a result they were deprived of the benefit

that will accrue to them under the provisions of the Act if the procedure as provided under the Act has been followed.

In support of his contention, learned counsel for the petitioners drew my attention to S.13 of the Act which reads as follows:

(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 Governments 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 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

Sub-S.(3) of S. 13 contemplates a complaint under the orders of appropriate Government. In pursuance of sub-S.(3) though the State

Government has passed a Government Order dated 25-10-1983 and authorised the Inspector of Police, Crime Branch, C.I.D. Madras to make a

complaint against the petitioners and Ors. no complaint has been filed by the said Inspector as provided under the Section. Instead a police case

has been registered on the complaint given by the controller of Examinations on 12-2-1983, as provided under S. 173 Criminal Procedure Code,

and the case has been registered as Crime No.7/83. The procedure that has to be followed in this case is that of a warrant case. Under sub-S.(2)

of S. 13 an option is given to the accused to elect a forum either the Court of Session or the Magistrate framing the charge, in case if he does not

discharge the accused. In case the accused elects to be tried by Court of Session, not withstanding the fact that the case is not a case exclusively

triable by a Court of Session, the Magistrate should commit the case for trial before a Court of Session. This is a valuable right given to the

accused persons and that right has been taken away by not filing a complaint in pursuance of the Government Order passed by the Government.

Instead, the Magistrate framed charges and examined as many as 51 witnesses and at that time it was felt that the complaint has been laid contrary

to the Government Order and petitions have been filed to discharge the accused persons. As the petitions were dismissed by the trial court and

were confirmed by the learned Principal Sessions Judge, Madras before whom revisions have been preferred against the orders passed by the trial

court these petitions have been filed to quash the proceedings.

I find the prosecution should not take advantage of its own wrong. The intention of the Government is to lay a complaint as per S. 13(3) of the

Act. The Government Order is very clear about this. For convenience sake, paragraph 13 of the Government Order is extracted below:--

Now, therefore, in exercise of the powers conferred by Sub-S (3) of the S. 13 of the Official Secrets Act 1923 (Central Act 19 of 1923) the

Government of Tamil Nadu hereby empowers the Inspector of Police, Crime Branch, C.I.D. Madras to make a complaint against the said (Tvl.

(1) Sheriff (2) Natesan (3) Nazir Hussain (4) Nagabooshanam and (5) Krishnan, for having committed the offence punishable under S. 120-B

Indian Penal Code and Ss. 5(1)(a), 5(2), 5(4) of the Official Secrets Act, 1923 (Central Act 19 of 1923) and against the said Thiru Krishnan for

having abetted the commission of an offence punishable under S. 5(2) read with S. 5(4) of the Official Secrets Act 1923 (Central Act 19 of 1923)

in a Court of competent jurisdiction.

That being the case, I find that registering the F.I.R. as provided under S. 173, Code of Criminal Procedure and conducting the trial contrary to

the provisions of sub-S.(2) of S. 13 of the Act, would work hardship to the accused. The fact that 51 witnesses have been examined and the fact

that the accused persons have taken part in the prosecution is not an answer to the question raised by the learned counsel for the petitioners. I find

that the framing of the charge in pursuance of the F.I.R. without giving an opportunity for the accused persons, whether they elect to be tried by the

Magistrate in case the Magistrate does not discharge the accused persons or to be tried by a Court of Session is not in conformity with the G.O.

passed by the Government and there had been no proper compliance of S. 13 of the Act. The ratio decidendi of the decision of the Supreme

Court reported in Bholanath Amritlal Purohit Vs. State of Gujarat, with reference to the word ''complaint'' applies to the facts of the case in all

fours. The fact that the offences committed under the Indian Penal Code also are included in the charge along with the offences under the Act will

not cure the defect. The offences under the Indian Penal Code contemplated in the Government Order can also be tried on a private complaint. As

such, I find the proceeding with reference to the offences arising under the Act is contrary to S. 13 of the Act and as such I quash the proceedings

in so far as it relates to the offences arising under the Act. However, the trial Court may proceed to complete the examination of witnesses with

reference to the charges connected with the offences arising under the Indian Penal Code, since those offences can legitimately be tried even on a

police report.

For the reasons stated above, the proceedings in so far as it relates to the provisions of the Official Secrets Act are concerned are quashed

and the papers are remitted back to the trial court to proceed with the trial of the case with reference to the offences arising under the Indian Penal

Code, These petitions are ordered accordingly.