A K JAJODIA Vs. STATE
LAWS(DLH)-2009-5-188
HIGH COURT OF DELHI
Decided on May 27,2009

A K Jajodia Appellant
VERSUS
STATE Respondents


Referred Judgements :-

AND ANR. VS. STATE OF KERALA AND ORS [REFERRED TO]
ROSY VS. STATE OF KERALA [REFERRED TO]


JUDGEMENT

MOOL CHAND GARG, J. - (1.)THIS order shall dispose of the aforesaid petition filed under Section 397/401 of the Code of Criminal Procedure challenging the correctness legality and propriety of the order dated 16.11.2007 passed by the learned Special Judge CBI Delhi dismissing the application filed by the petitioner (one of the accused) with a prayer to remand the Sessions case No. 5/2006 titled CBI through Chanda Rani Vs. K.K. Jajodia and Ors.), arising out of a Complainant under Section 3/5 of the Official Secrets Act (hereinafter referred to as O.S. Act) read with Section 120B IPC, to the Chief Metropolitan Magistrate for complying with the provisions of proviso to Sub Section (2) of Section 202 and Section 208 of the Cr.P.C before committing the case to the sessions.
(2.)BRIEFLY stating the facts giving rise to the filing of the present petition are:
i) Complaint dated 15.04.1987 was filed by one Mr. Navin Sikand, Regional Manager of a Courier Company viz. M/s. Trident Express, Trident Travels and Tours (P) Ltd., on or about 17.04.1987 to the Central Beurue of Investigation (CBI) which resulted in the registeration of an FIR/Criminal Case being RC 4(S)/87 -SIU -1 by its Special Investigating Cell under Section 120B IPC read with Sections 3 and 5 of the OS Act, against the Partners/Proprietors/Directors of M/s. William Jacks (Pvt.) Ltd. In the said complaint inter alia it was alleged; -

(a) That a letter addressed to one Mr. Marc De Saint Denis, M/s. Coprint, Paris was received by the aforementioned Courier Company for dispatch on 04.04.1987 as per Airway Bill No. 236 dated 04.04.1987. Another letter addressed to Mr. J.W.H. Weavers, Netherlands was also received on 13.04.1987 vide Airway Bill No. 893 dated 13.04.1987 by the same Courier Company for dispatch. Both these covers were picked up by the courier boys of the aforesaid Courier Company from M/s. William Jacks and the particulars of the sender on Airway Bills were given as one Mr. K.C. Das, Kiran Bhawan, Barakhamba Lane,New Delhi and Mr. Kashyap, Kiran Building, Barakhamba Road, New Delhi respectively and the charges were paid in cash.

(b) That on suspicion, the covers were opened and inside the covers addressed to the person in Paris was a Xerox copy of User Evaluation Trial Report on R.A.T.A.C.S. battlefield Surveillance Radar BFSR Phase -I pertaining to the Army, Ministry of Defence and the other cover, addressed to the person in Netherlands, contained draft letters in 13 pages containing details of some radars Fly Catchers for detection and tracking of low level enemy aircrafts.

ii) In view of that after the FIR was registered, the CBI investigated the matter and thereafter, Shri R.S. Dwivedi, Deputy Superintendent of Police, CBI filed a complaint on 07.02.1989 in the Court of the Chief Metropolitan Magistrate (CMM), Delhi who took the cognizance of offences under Section 120B IPC read with Sections 3 and 5 of the OS Act and Sections 3 and 5 of the OS Act against the accused persons including the petitioner and transferred the case to Addl. Chief Metropolitan Magistrate (ACMM). Subsequently vide order dated 19.09.1989, the ACMM to where the case was transferred by CMM committed the case to the Court of Sessions since the offence under Section 3 of the OS Act was exclusively triable by the Court of Sessions.

iii) That vide order dated 22.07.1995 Shri Dinesh Dayal, Learned Special Judge, Delhi discharged the accused persons as prior sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) to prosecute two of the accused persons viz. Dr. W.N. Nerurkar and Brig. R.S. Deol was not obtained.

iv) That after a year Shri S.S. Sandhu, Inspector, CBI filed a Second Complaint dated 17.12.1996 in the Court of the CMM based on similar allegations after the Sanction was given under Section 197 Cr.P.C. The CMM again took cognizance of the offences and issued process. Subsequent to the appearance of the accused persons, the case was again committed to the Court of Session on 01.12.1997. Preliminary Objection was raised on behalf of some of the accused that the Sanction was accorded without application of mind and Shri Dinesh Dayal, Learned Special Judge, Delhi by his judgment and order dated 30.05.1998 discharged the accused persons again.

v) Again after a period of fourteen months, a third Complaint on the same allegations was filed in the Court of the Learned CMM on 22.06.1999 along with the requisite sanction under Section 197 of the Cr.P.C. This time also the CMM issued process against all the accused persons.

vi) It may be observed here that the complaint filed by the CBI was also accompanied with the report of investigation carried out by it on the basis of the FIR registered at the instance of M/s Trident Express. The investigation report was accompanied with copy of the statement of the witness recorded under Section 161 Cr.P.C. as well as the documents seized by the prosecution during the course of investigation. It may be observed here before that, in exercise of powers conferred under Section 13(1) of the OS Act, 1923 (Act No. 19 of 1923), the Central Government vide Notification No. G.S.R. 126 (E) dated 06.03.1998 published in the Gazette of India, Part II, Section 3, Sub - Section (i), conferred jurisdiction/power upon this Learned Court viz. the Court of the Learned CMM Delhi, to try offences punishable under the OS Act, 1923.

vii) On 9.10.2000, the petitioner filed an application before the Learned CMM for recalling the summoning order dated 16.08.1999 on the grounds mentioned therein and to follow the procedure laid down in the proviso to Section 202 (2) Cr.P.C.

viii) The aforesaid application was disposed off vide order dated 11.02.2004, with the following observation: -

"It may be mentioned that vide notification No. 1/17017/16/91 -1 SUS (DII) dated 06.03.1998 issued under the signature of Joint Secretary of India Ministry of Home Affairs, CMM, Delhi has been empowered by the Central Government to try the offence punishable under Official Secret Act, 1923, notwithstanding the fact that under Section 3 of OS Act, offence is punishable up to 14 years. In Cr.P.C. offences under Section 377 IPC, 409 IPC and 467 IPC are punishable with imprisonment of life or custodial sentence of specified years. But still offences are M.M. triable one under the scheme of Cr.P.C. Moeover, vide 13(2) of the OS Act liberty has been given to the accused to claim for trial by the court of Sessions. It has been provided that Magistrate shall, if he is not discharging the accused, commit the case for trial to Sessions Court, although it is not a case exclusively triable by the Court. "In this case, still the stage of charge has not been reached. Prosecution would lead its precharge evidence and thereafter, it would be decided whether any charges are made out or not against the accused persons and at that stage accused shall also be at liberty to claim trials by the Sessions Court whereupon it shall be committed to Learned Sessions Court if there is no discharge by the CMM in this case. Ld. Predecessor took cognizance of the complaint after duly adverting to the earlier two complaints on the same set of facts, which on each committal was dismised by ld. Sessions Court for technical reasons."

ix) That after dismissal of the application the CMM fixed the case for recording pre -charge evidence on 22.03.2004. That thereafter, from time to time, the case was adjourned for recording pre -charge evidence.

x) When prosecution obtained summons against its witnesses and on certain occasions, though witnesses attended the Court to depose, they were not examined for various reasons. That in the meantime, by another Notification No. G.S.R. 373 (E) dated 21.06.2006 published in Gazette of India, Part -II, Section 3, Sub -Section (i), the Central Government, in exercise of the powers conferred by Sub - Section (1) of Section 13 of the OS Act, 1923, has rescinded the earlier Notification No. G.S.R. 126 (E) dated 06.03.1998 empowering CMM to try offences punishable under the OS Act, 1923. The said notification reads as under:

Miinistry of Home Affairs Notification New Delhi, the 21st June, 2006 G.S.R. 373 (E) ­ In exercise of the powers conferred by Sub Section (1) of Section 13 of the Official Secrets Act, 1923 (19 of 1923) read with Section 21 of the General Clauses Act, 1897 (10 of 1897), the Central Government hereby rescinds the Notification published in the Gazette of India, Part II Section 3, Sub Section (i), vide G.S.R. 126 (E) dated the 6th March, 1998, empowering the Chief Metropolitan Magistrate, Delhi under the said Act, with immediate effect, such recission shall not affect anything done or omitted to be done under the said Notification before such rescission.

It may be observed that before this, one of the co -accused namely Dr. N.W. Nerurkar had filed a writ petition for quashing of the proceedings against him on the ground of delay which was allowed by a Division Bench of this Court but the said order was reversed by the Apex Court in a SLP filed by the CBI with the following directions vide order dated 26.08.2002.

Accordingly the judgment of the High Court is quashed and the matter is remitted back to the High Court. The High Court shall hear the matter afresh, permit the parties to place materials which according to it will be relevant for the purpose of determination of the dispute before it, and take a fresh decision in accordance with law. As mentioned above, we are not expressing any opinion on the merits of the case."

(3.)THE writ petition of Dr. N W Nerurkar came up for hearing before a Division Bench of this Court subsequent to the order of remand by the Apex Court, which was disposed off as under:
In the facts and circumstances of this case, we direct learned CMM, Delhi, dealing with the matter to proceed with recording of the pre -charge evidence on a day -to - day and complete the same within 4 weeks of his taking up the case in the first instance.

With the above directions, this writ petition stands disposed of. Copy of this order be given dasti to the parties and sent to the CMM for compliance.



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