VIJAYAN Vs. FAUZIYA HASSAN

JUDGEMENT

(1.) Crime No. 246 of 1994 was registered by the Vanchiyoor Police Station, Thiruvananthapuram under S.3, 4 of the Official Secrets Act, 1923 r/w S.34 IPC. The case was registered against 6 persons alleging that they committed espionage activities in Kerala and tried to smuggle out certain secret documents from the Indian Space Research Organisation (ISRO). Two of the accused are nationals of Maldives. Originally Vanchiyoor Police Station had registered another crime viz. 225 of 1994 alleging that one of the accused herein, who is a Maldives national, overstayed in Kerala. The revision petitioner herein was the then Special Branch Inspector, Trivandrum City. He questioned the Maldive national and, according to him, he came to know of the espionage activities conducted by that Maldive national along with the accused person in Crime No. 246/94. The revision petitioner then arrested that Maldive national and filed a report before the Station House Officer, Vanchiyoor Police Station. Thus, Crime No. 246/94 was registered and the Special Branch Inspector, who gave the report, was shown as the first informant.

(2.) Investigation in Crime No. 246/94 was taken over by a special team of officers under the charge of a Deputy Inspector General of Police. The DIG of Police gave a report to the Director General of Police that since the extent of the case was spread over to other States of India and foreign locations and in view of the nature of the crimes alleged to have been committed by the accused it was necessary that the Central Bureau of Investigation (CBI) was better equipped for further investigation in the crime. The Government of Kerala by notification dated 2.12.94 accorded consent to the extension of powers and jurisdiction to the members of the Delhi Special Police Establishment (CBI) in the whole of State of Kerala for investigation of Crime No. 246 of 1994. The Central Government thereafter issued another notification under S.5 and 6 of the Delhi Special Police Establishment Act, 1946 and further investigation of Crime No. 246/94 was thus conducted by the CBI. The CBI submitted a final report before the Chief Judicial Magistrate, Ernakulam under S.173(2) of the Cr.PC. In the final report, CBI expressed the opinion that no evidence was forth coming to prove that the accused had committed the offence punishable under S.120B IPC r/w 3, 4, 5 of the Official Secrets Act read with S.34 IPC. This final report was filed by the CBI on 30.4.96. At the time when the case stood posted to 14th May, 1996 the learned Magistrate advanced the case suo motu and posted to 2.5.96 with a direction to verify and put up. The matter was taken up on 2.5.96 and, by a brief order, the learned Chief Judicial Magistrate discharged all the accused persons. The revision petitioner challenges the order passed by the Magistrate on various grounds.

(3.) The contention of the revision petitioner is that he is the first informant in Crime No. 246/94 and when the investigating officer filed a report under S.173(2) Cr.PC, it was the bounden duty of the Magistrate to issue notice to the revision petitioner, he being the first informant, and that the Magistrate should not have discharged the accused without hearing him. The revision petitioner has also contended that the report filed by the CBI itself would show that there are several incriminating materials against the accused persons and that the CBI should have filed a charge sheet instead of filing a "closure" report. The revision petitioner claimed privilege of notice on the basis of the decision reported in Bhagwant Singh v. Commissioner of Police ( 1985 (2) SCC 537 ).