NARAYAN WAMAN NERURKAR Vs. STATE

JUDGEMENT

(1.) Dr. Narayan Waman Nerurkar was advisor in the Department of Electronics, Government of India. On 17th April, 1987 a criminal case was registered by the Special Investigation Cell, Central Bureau of Investigation (in short CBI) under Section 120B of the Indian Penal Code read with Sections 3 and 5 of the Official Secrets Act, 1923. The said case was registered on the basis of a complaint filed by the Regional Manager of a courier company, M/s. Trident Express. As per the complaint on 4th April, 1987 a letter addressed to one Mr. Marc De Saint Deis, M/s. Coprint Paris was received by the said courier company for despatch. Another letter addressed to Mr. J.W.H. Weavers, Netherlands was received on 13th April, 1987. These letters were picked up by the couriers from M/s. William Jacks and the particulars of the sender were given on the Airway Bills. The courier company got suspicious and opened the letter and inside the covers addressed to the person in Paris was xerox copy of User Evaluation Trial Report on RATAC-S Battlefield Surveillance Radar BFSR Phase-1. The other cover addressed to 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. Matter was reported. Accordingly the raids were conducted in the premises of various officers including that of the petitioner. During the search conducted on 25th October, 1988 nothing incriminating was found from the premises of the petitioner. However, he was arrested on ll th November, 1988. Case by the CBI was registered in 1987. On 7th February, 1989 CBI filed a complaint in the Court of Chief Metropolitan Magistrate, Delhi. Learned Chief Metropolitan Magistrate took cognizance under Section 120B,Indian Penal Code read with Sections 3/5 of the Official Secrets Act, 1923 (hereinafter called the Act) against the petitioner and other accused persons. Proceedings continued. On llth July, 1995 petitioner and other accused persons were discharged on the ground of lack of sanction under Section 197, Criminal Procedure Code. On 17th December, 1996 CBI again filed a complaint before the learned Chief Metropolitan Magistrate, Delhi under the same provisions as quoted above. The learned Chief Metropolitan Magistrate took cognizance and after appearance of the accused persons committed the case to the Court of Sessions on 1st February, 1997. Second time also the petitioner and other accused persons were discharged for lack of valid sanction. The Magistrate, however, while discharging the accused persons gave liberty to the CBI to file the complaint third time after complying the requirement of law. The said order was passed on 30th May, 1998. On 1st July, 1999 fresh complaint was filed by the CBI before .the learned Chief Metropolitan Magistrate. When third time the complaint was filed the petitioner filed an application that he should be heard before cognizance is taken. The grievance of the petitioner was that proceedings had been pending for a period of over 12 years and that there was bleak possibility of his conviction; That the sanction which had been granted third time was not by any independent assessment but a bye-product of a direction by the learned Chief Metropolitan Magistrate. The said application was rejected vide order dated 16th August, 1999 and cognizance was taken by the Magistrate by issuing summons to the accused persons on 23rd September, 1999.

(2.) It is in this backdrop that this writ petition has been preferred seeking quashing of the order dated 16th August, 1999 by which the cognizance had been taken, and also on the ground that due to delay in proceedings the fundamental right of the petitioner as provided under Article 21 of the Constitution of India has been infringed. Furthermore the reports of trial of a proto-type (pre-production mode) wasincomplete, non-militarised and non-rugged version. Documentrelated to part of a trial conducted by the manufacturers of the equipment. The information, if any, relates to "munition of war" which is covered by Section 5(3) of the Official Secrets Act, 1923 (hereinafter called the Act). Maximum punishment for that offence is 3 years whereas petitioner has suffered the agony of proceeding for more than 12 years. He is more than 70 years old.

(3.) First objection taken by the petitioner is with regard to the delay of the proceedings which according to him resulted in deprivation of his fundamental right. In order to determine the delay and the consequential impact of the same on the proceedings, we have first to determine whether the case of the petitioner is covered under Section 5(3) of the Act or under Section 3 of the Act. If it is under Section 5(3) of the Act then maximum punishment is 3 years. But if it is covered under Section 3 of the Act then the punishment is 14 years. To us it appears to be a relevant consideration in the facts of this case to determine the impact of the delay in proceedings.