RAKESH KUMAR JAIN Vs. STATE

JUDGEMENT

(1.) The criminal complaint under S. 5(4) read with S. 5(2) and (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 S. 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 congnizance 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 S. 13(3) of the Act, the Trial Magistrate as well as the High Court held that S. 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 S. 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 paper book of this appeal. Accepting the plea of the complainant, the complaint filed against the petitioner was held to be within time.

(2.) Mr. Vijay Bahuguna, Senior Advocate appearing for the petitioner submitted that as no sanction or consent was provided to be taken from the Government u/S. 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 S. 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 S. 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 bona fidely believed that such a sanction was necessary before the filing of the complaint.

(3.) 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: