SAIMUDDIN Vs. STATE OF DELHI

JUDGEMENT

(1.) BY this common order I shall be disposing off these three petitions preferred by the petitioners-accused under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "cr. P. C. ") since in all the three petitions the petitioners, who were being prosecuted in the court of Chief Metropolitan magistrate (CMM) for the commission of an offence punishable under Section 3 of the Official Secrets Act, 1923 ("the Act" for short), have impugned the order passed in their cases by the learned CMM, Delhi for the commitment of the cases to the Court of Sessions.

(2.) THE relevant facts which need to be noticed and about which there is no dispute between the parties are that the three petitioners herein are alleged to have committed an offence punishable under Section 3 (1) of the Act at different times. The punishment provided under Section 3 (1) of the Act is imprisonment upto fourteen years when an accused is found to have collected/obtained secret documents etc. pertaining to naval, military or air force and upto three years in other cases. Upto the year 1983 all complaints under the Act used to be filed and tried in the designated Courts of Magistrates of first Class/chief Metropolitan Magistrate/addl. Chief Metropolitan magistrates in Delhi relying upon the provisions of Section 13 (1) of the Act irrespective of the fact whether the punishment on conviction of the accused could be imprisonment upto fourteen years or three years. However, on 12/9/84 a Single Judge Bench of this Court in a judgement, which is reported as "frank dalton Larkins etc. vs State", 1985 Crl. Law Journal 377, while considering the provisions of Section 13 (1) of the Act held that if the offence alleged to have been committed by an accused could attract punishment of imprisonment upto fourteen years as provided under Section 3 (1) of the Act then the case could be tried exclusively by a Court of Session as provided under Part II of the first schedule to the Code of Criminal Procedure, 1973, which prescribes the forum for trial of offences under statutes other than the Indian Penal Code. That judgment does not appear to have been challenged in Supreme Court. So, thereafter the cases where the punishment could be imprisonment upto fourteen years the designated Magistrates/ CMM/acmm started committing the cases for trial to the Court of Session. That practice then continued to be followed by the Courts for more than thirteen years. However, on 6th March, 1998 the government of India in exercise of the powers conferred under Section 13 (1) of the Act issued a notification empowering the Chief Metropolitan Magistrate, delhi to try offences punishable under the Act. After the issuance of that notification the position once again changed and the Chief Metropolitan magistrate once again started trying even those cases where the accused could be awarded imprisonment upto fourteen years on being convicted and committal those category of cases to the Court of Session was stopped. That was the understanding of the CMM as well as the State about the notification dated 6th march,1998 which appeared to have been issued to overcome the effect of the judgement of this Court in Larkin"s case (supra) which had held that section 13 (1) of the Act was silent about the trial of cases where punishment could be upto fourteen years of imprisonment and so in respect of that category of cases part II of the first schedule to the Code of Criminal Procedure was to be applied and accordingly those cases were triable exclusively by the Court of session.

(3.) THE allegations levelled against each of the petitioners in these three petitions in the complaints filed against them were that they had obtained/collected illegally documents pertaining to defence secrets which could be useful for the enemies of India and thereby put to risk the sovereignty, integrity and security of the country. It was not disputed before me on behalf of any the petitioners that the allegations against them were of such a nature which could attract punishment of imprisonment upto fourteen years on their being found guilty. Since the complaints against the petitioners herein were filed in the Court of Chief Metropolitan Magistrate after the issuance of the aforesaid notification dated 6th March,1998 the learned CMM after taking cognizance proceeded further in the cases without committing them to the Court of Session. That even according to the prosecution was the correct approach to be adopted by the CMM. During the pendency of the cases against the present petitioners, however, the Central Government in exercise of the powers conferred upon it by Section 13 (1) of the Act read with Section 21 of the General Clauses act came out with another notification on 21st June,2006 whereby the above-referred earlier notification dated 06. 03. 1998 empowering the CMM, Delhi to try the offences under the Act was rescinded. It was, however, clarified in the notification that such rescission shall not affect anything done or omitted to be done under the earlier notification dated 6th March. 1998 before its rescission. In view of the rescission of the notification dated 6th March, 1998 applications were moved on behalf of the State in all the three cases against the present petitioners praying for the commitment of the cases to the Court of Session. The learned Chief Metropolitan Magistrate vide separate orders passed in all the three cases accepted the prayer of the prosecution and committed the matters to the Court of Session. At that stage trial in the case of Saimuddin etc. had already been concluded and the matter was fixed for final arguments while in the case of petitioner Dalip Singh Chandrawat prosecution evidence was going on. In the case of Brig. Deol the CMM was still recording pre-charge evidence.