STATE OF MAHARASHTRA Vs. BUDHIKOTA SUBBARAO

JUDGEMENT

(1.) The principal question of law, and, an important one, that arises for consideration in Appeal No. 276 of 1993 [arising out of Special Leave Petition (Cri.) No. 986 of 1992], which shall reflect on Appeal No. 277 of 1993 [arising out of Special Leave Petition (Cri.) No. 987 of 1992], as well, filed by the State of Maharashtra against the Judgement and order of the Bombay High court, affirming the order of the trial Judge discharging the accused, is if the absence of sanction, by the appropriate authority, under Section 197 Criminal Procedure Code (in short 'the Code') for prosecuting a retired public servant, vitiates the proceedings.

(2.) Although facts are brief and simple too, but the High court, unfortunately, instead of confining itself to the legality of discharge, either for lack of the sanction under Section 197 of the Code or for the improper authorisation under the Official Secrets Act, 1923 (in brief 'the O.S. Act') and Atomic Energy Act, 1962 (referred to as 'A.E. Act') the two statutes for violation of which the accused was charged, was led away to record findings as if the accused was deliberately subjected to undue harassment by the State aided by the alleged unreasonable attitude of the public prosecutor. So much so that the learned Judge allowed an application of the accused, in the revision filed by the State against his discharge, and set aside the order of Additional Sessions Judge (in brief 'ASJ') framing charges against him as it was vitiated by fraud, merely because the State did not file any counter-affidavit and insisted that the argument being same as were advanced in the revision it was not necessary to file any reply, even though the learned Judge was aware that the accused had earlier approached the High court against the order rejecting his application that no charge was liable to be framed against him without any success. Not only that the learned Judge did not spare, even, this court, for cancelling bail of the accused at earlier stage. Needless to say that the first was unnecessary, the second illegal and is subject-matter of appeal No. 277 of 1993 [arising out of Special Leave Petition (Cri.) No. 987 of 1992] and the third improper.

(3.) Since the accused was discharged by the trial Judge, mainly, due to technical defects and the decision was rendered as a preliminary issue on direction of the High court, suffice it to say that the accused, an ex-Naval captain who achieved notable success in the field of computer science and software during the period he was attached with Bhabha Atomic Research Centre, (in short B.A.R.C.) had voluntarily opted out of service in 1987, was arrested on 30.05.1988, just when he was about to board a plane for New York. His residence was searched on the next day. From the documents recovered, from search of the hand bag on 30th and residence on 31st and his interrogation, it appeared that he was guilty of violating provisions of O.S. Act and A.E. Act, therefore, a complaint was filed, against him after obtaining permission, under Section 3(1)(c), read with sec. 9, 6(2)(a) and 6(2)(b)of the O.S. Act and sec. 24(1)(d)read with 18(2 and 24(2)(d)read with Section 19(b) of the A.E. Act before the Metropolitan Magistrate who being prima facie satisfied of the offences and their gravity committed the accused to stand trial before the court of Sessions. Effort was made by the accused to assail the framing of charge, as according to him, on facts, no offence under either of the statutes was made out. And offence if any for which he could be charge-sheeted could be under Section 5 only. The trial Judge turned down the plea by order dated February 24/27, 1989 and fixed date for framing the charge. A revision, against this order, was dismissed by the High court, on 6.06.1989. It was challenged by way of special leave petition in this court. But it was permitted to be withdrawn. The accused however invoked inherent jurisdiction of the High court seeking review of the order dated 6.06.1989. Although the application was rejected, on 18.09.1989 but an observation was made that there was no impediment in way of the trial Judge in altering or modifying or reviewing any of the charges or even framing new or additional charge. This provided an occasion to the accused for starting proceedings, afresh, for his discharge and claim in the alternative to frame charge under Section 5 of O.S. Act instead of under Section 3. The application was allowed by the trial Judge on 15.01.1990, and the charges under A.E. Act were dropped. The charge under the O.S. Act was altered to one under Section 5 of the Act. The order was set aside on 3.04.1990 by a learned Single Judge and the trial Judge was directed to frame charges both u/s. 3 and 5 of the O.S. Act. Against this order the accused approached the division bench, by what is described as, speaking to the minutes for clarification of the order passed by the High court on 3.04.1990 as the learned Single Judge who passed the order on 3.04.1990 did not appreciate the observations made by the division bench, but it was rejected on 24.07.1990 as there was no system of speaking to the minutes by doing which the order could be reviewed in criminal proceedings. The bench however observed that remedy of the accused was to approach the court in proper forum. Therefore when the matter was taken up for framing the charge the accused, once again, claimed that he was entitled to be heard at stage of Section 227 of the Code and he was entitled to be discharged. The trial Judge by order dated 6.08.1990 rejected the application, restored the earlier charges and framed a charge under Section 5 as well. Validity of the charges, thus, framed was challenged by way of writ petition (criminal) under Articles 226 and 227 of the Constitution and it was claimed that entire proceedings, being violative of Art. 21 of the Constitution, were liable to be quashed. The High court did not find any substance in it but it directed the ASJ by its order dated 24.03.1991 to decide if sanction under Section 197 of the Code was required and also to determine if authorisation under S. of O.S. Act and A.E. Act was in accordance with law.