MOHD. HASIM Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard the learned Counsel for the applicant and also the learned A.G.A. and perused the materials on record. This Second Bail Application has been moved on behalf of the accused Mohd. Hasim alleged to be involved in the offence under Sec. 3 of the Official Secrets Act, 1923 (which is hereinafter referred " to as 'the Act'). It has been contended by the learned Counsel for the applicant that the entire case has been fabricated against the accused-applicant and the provisions as contended under Sec. 13 (3) of the Act have not been complied with, in stead the charge-sheet has been submitted against the accused-applicant. Further the investigation was carried out by an officer below to the rank of the officer who has lodged the report. Thirdly, the co-accused Mamur has already been admitted on bail.

(2.) In this regard it shall be useful to refer that Sec. 13 (3) of the Act provides that no Court shall take cognizance of the offence falling under the Act unless complaint is made by order of, or under authority from, the appropriate Government, or some officer empowered by the appropriate Government in this behalf. The charge-sheet in this case has been submitted by the Police on 9th June, 2002. The cognizance of the offence was also taken by the learned Magistrate on 26th June, 2002 of the offence, indicated above. On behalf of the State, it has been urged that the Government of India, Ministry of Home Affairs vide letter dated 16th Oct., 2002 communicated the sanction of the Government of India for making the prosecution of the accused-applicant and his other accomplice. Further Sri Anand Kumar, the Circle Officer, Syiana, district Bulandshahr was also directed to lodge a complaint against the accused applicant and others. On the strength of this sanction, accorded by the Government of India, much emphasis has been laid that formal requirement of lodging prosecution is complete but on the point of filing of the complaint, there is constant silence. Argument was advanced that the nature of the offence is serious and on such technicalities, the accused cannot be let off at liberty by admitting him on bail. In such a serious offence indifferent attitude and apathy has been shown by the authority concerned by not lodging a complaint against accused-applicant-pursuant to the decision of Government of India. The cognizance of the offence was taken by the learned Magistrate on the charge sheet submitted by the Police which itself would be hit by Sec. 13 (3) of the Act. It has further been mentioned that Honourable the Apex Court in the case of K. Chandrashekhar Vs. State of Kerala and others, 1998 (37) ACC 136 (SC) has also observed that there is no dispute or the point that the prosecution for the offence under the Act can be made only by filing of the complaint on the strength of sanction of the Government of India under Sec. 13 (3) of the Act. To the contrary, the learned AGA referred the judgment given by the Rajasthan High Court on the principles of law laid down in the case of Kutubuddin Vs. State of Rajasthan, AIR 1967 Raj 2241 . The principles of law laid down in the case of Kutubuddin (supra) does not give up the statutory requirement of Sec. 13 (3) of the Act. However, it has also been mentioned that the charge-sheet submitted by the Police may also be treated as complaint. Such points may well be taken by the State at the stage when the prosecution commences and what procedure the learned Magistrate adopts. It has further been argued that in the second bail application only new point can be raised which has cropped up subsequently. Here all such points were available at the earlier occasion when the first bail application was taken. The refusal of the bail at the first instance would imply that all such points were taken in the first bail application and the bail was refused on those points also. Needless to emphasis that there is no legal bar or estoppel against the statute. It has further been mentioned that the accused-applicant is in jail for the last twenty months. Co-accused has already been admitted on bail.

(3.) In the given circumstances, the application is allowed. Let the accused Sri Mohd. Hasim be admitted on bail in Crime No. 176 of 2002, under Sec. 3 of the Official Secrets Act, Police Station Syiana, district Bulandshahr, subject to his furnishing a personal bond with two sureties each of the like amount to the satisfaction of the learned Magistrate concerned and also other conditions so desired to be imposed by the learned Magistrate.