STATE OF MAHARASHTRA Vs. B K SUBBARAO

JUDGEMENT

(1.) THIS petition/criminal revision application, presented by the State of Maharashtra, is directed against a judgment and order of the learned Additional Sessions Judge, Greater Bombay, dated 26-4-1991. Through this petition, the State of Maharashtra has assailed the correctness of the order of the learned Additional Sessions Judge whereby the respondent, whom I shall refer to as "the Accused", has been discharged of certain offences punishable under the Official Secrets act, 1923 and the Atomic Energy Act, 1962 a few facts that are relevant for the decision of this criminal revision application are alone being recounted by me. I need to prefix this judgment with the observations that this particular litigation has been preceded by a score of petitions addressed to the different Courts before which the prosecution was pending, to the High Court and, on more than one occasion, to the Supreme Court. The matter has been vigorously contested and it has been the contention of the Accused that the reason for this contest is because the prosecution was motivated and that the viciousness with which the proceedings continued right up to the present stage was because of an element of personal vendetta. I shall have occasion to make my observations with regard to these aspects of the case in the course of the judgment because they are relevant. Normally, there would have been no reference to this aspect at the initial stage of the judgment, but there appears a degree of justification in this charge and it is for this reason that it is being referred to by me.

(2.) COMING first to the background and the relevant facts. The Accused before me, Dr. B. K. Subbarao, is a senior member of the Armed Forces having joined the Indian Navy on 15-7-1962 as a Sub-Lieutenant and having finally parted company with the Navy on 27-10-1987 when he opted for premature retirement, at which time he was holding the rank of a Captain. There are references on record to indicate that the Accused followed up a brilliant academic career with an even more distinguished service record in the course of which his talents and expertise and proficiency in the field of computers and sophisticated fields of communication were commended and it was for this reason that he came to be associated with certain prestigious and important assignments. The Accused opted for premature retirement, as indicated by me, and it appears from the record that he was thereafter doing certain assignments for CEAT Tyres India ltd. and some other commercial organisations. On the night of 30th May, 1988, the Accused was leaving for New York by an Air India flight when it is alleged that the Customs Officers at the airport decided to check his baggage. It is further alleged that in the course of the baggage check, certain documents are alleged to have been found in his possession and these documents are supposed to have had certain nothings on them that they were secret documents. According to the Prosecution a Panchnama was drawn up and the Inspector of Police, Sahar Airport Police station, was requested to take over the matter because the Customs Authorities, prima facie, felt that the Accused ought not to have been in possession of these documents and that, consequently, the situation was actionable. The Police Authorities placed the Accused under arrest, and in the course of the investigations they are alleged to have searched the respondent-Accused and it is their case that several other documents of an equally confidential nature were found in the course of that search. The Investigating Officer thereupon obtained certain authorisation that were necessary from Central Government, completed the investigations and submitted a charge-sheet before the local Magistrate. The Investigating Officer also took note of the fact that the special statutes under which the Accused had been charged required a special procedure to be adopted and he, therefore, in compliance with the procedure, filed a complaint before the learned Magistrate. The learned Magistrate proceeded on the basis of the complaint and the charge-sheet that had been filed was tagged to the complaint, but admittedly it on the basis of the complaint filed by the investigation Officer, Mr. Sawant, that the Court took cognizance of the offences. Since it was pointed out to the learned Magistrate that the charges against the Accused were under the Official Secrets Act and the Atomic Energy Act and involved several secret and confidential documents and aspects, the proceedings were held in camera and the leaned Magistrate thereafter committed the case to the Court of Session.

(3.) THE Accused, when he was produced before the learned Magistrate on 31-5-1988 itself, made an application that he should be released on bail and it also appears that thereafter the Accused filed a detailed application before the Court on 13-6-1988 in which he contended that the authorities who had arrested him have wrongly proceeded against him on the assumption that he had committed infringements of the Official Secrets Act and the Atomic Energy Act; whereas, according to him whatever documents he is alleged to have been carrying, at their face value, could never justify such a charge. I need to mention one extremely curious aspect of this litigation which is that the documents, which I shall describe presently and which from the subject-matter of the charges, do bear a description which at first blush would give the impression that they are of an extremely secret and confidential nature connected with the armed Forces and the Atomic Energy installations and that, consequently, ipso facto they would be covered by these two statues. It is unfortunate that in the course of the litigation which started on 31-5-1988 and after a lapse of three years and four months has still not been concluded that the Prosecution repeatedly get away by describing to the Court the titles of these documents and creating the unmistakable impression on every single Court that these were, in fact, secret documents, any disclosure or possession of which would be dangerous and prejudicial to the interest of the State and, furthermore, that if these documents fell into the hands of foreign agents or spies that the security of the State/country would have been endangered. It is, undoubtedly, easy to make these statements, but in a prosecution of the present type where a very distinguished and very senior member of the Armed Forces was placed on trial and where allegations of a very grave nature were levelled against him and were relentlessly pursued before every forum before which the case came, that the learned Judges at least of the subordinate Court ought to have been afforded the opportunity by the Prosecution to carefully scrutinize the original documents, in the light of what has been repeated by the Accused possibly more than hundred times in the course of these proceedings, that the accusations against him required serious judicial examination and not mere acceptance on the basis of descriptive allegations. To my mind, had this been done, the course of this litigation would have been different. It is, therefore, a matter of deep regret that this exercise had not been gone through because it is an elementary requirement of criminal law that when an accused is produced before a Court by the investigating Authority who genuinely insists that serious offences relating to documents have been committed and who is certainly entitled to justify the allegations; that the judicial authority which under the scheme of the Constitution of this country is the only safeguard for the liberty and fair enforcement for the citizen's rights, must as a solemn legal duty scan and scrutinize the correctness of the charges on the basis of the material that is placed before it. Shockingly enough, neither the documents nor copies thereof where produced before the trial Court when the charges were framed. The ground given was that they were secret documents for which reason no copies were made and the originals were kept in a sealed cover, in which condition they continue to remain. That the Prosecution has got away with this is some achievement.