PETITIONER:
SUPERINTENDENT & REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL
Vs.
RESPONDENT:
SATYEN BHOWMICK AND ORS.
DATE OF JUDGMENT15/01/1981
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION:
1981 AIR 917 1981 SCR (2) 661
1981 SCC (2) 109 1981 SCALE (1)179
ACT:
Official Secrets Act-Section 14-Scope of-Advocate
taking notes on evidence of witnesses in respect of
proceedings held in camera-Court, if could prohibit taking
notes-Court if could compel the advocate to produce his
notes for inspection-Advocate if could claim privilege under
section 126 of Evidence Act.
HEADNOTE:
Section 14 of the Official Secrets Act provides that in
addition to and without prejudice to any powers which a
Court may possess to order the exclusion of the public from
any proceedings if, in the course of proceedings before a
Court against any person for an offence under this Act, the
prosecution makes an application that publication of any
evidence to be given would be prejudicial to the safety of
the State. The Court may make an order prohibiting the
publication of evidence to be given or of any statement to
be made in the course of proceedings if it is of opinion
that the proceedings would be prejudicial to the safety of
the State.
On the allegation that the accused had passed on some
military secrets to the enemy resulting in serious detriment
to the safety and security of the country the accused were
charge-sheeted under sections 3, 9 and 10 of the Act.
During the commitment inquiry the prosecution prayed
that the accused should not be allowed to have access to or
be given copies of statements of witnesses recorded by the
Magistrate. The defence lawyers were allowed to take notes
of the statements of witnesses. When the Magistrate asked
the defence lawyers to produce their note-books for perusal,
they claimed privilege under section 126 of the Evidence Act
on the ground that they contained certain instructions given
to them by the accused which amounted to privileged
communication and that for this reason they could not be
looked into by the Court. The Magistrate upheld the
objection.
Purporting to follow one of its earlier decisions the
High Court in a revision filed by the State held that the
Magistrate should have taken legal action against the lawyer
for flouting its order by not producing the note-books on
the ground of privilege. It also held that in view of the
provisions of section 14 of the Act not only could the
public be excluded from the hearing but even the statements
of witnesses recorded by the Court could not be made
available to the accused or his counsel.
In appeal to this Court it was contended that the
opening words of section 14 really amounted to a non-
obstante clause overriding the provisions of all Acts
including the Code of Criminal Procedure and the mode of
trial contemplated by section 14 would take precedence over
the mode of trial provided by s. 251-A
662
or s. 252 of the Code and (2) the Magistrate could not only
hold the proceedings in camera but could exclude publication
of any evidence, including the right of accused to get notes
of the statements recorded during the police investigation
or during inquiry or trial.
^
HELD: The opening words of section 14 "in addition and
without prejudice to any powers which a Court may possess"
clearly reveal that the intention of the legislature was to
give only an enabling additional power to the Court
regarding holding of the proceedings in camera. The
legislature never intended that the inherent powers
possessed by the Court to hold the proceedings in camera in
suitable cases should in any way be affected by section 14.
The intention was merely to give an additional power to
strengthen the hands of the Court for holding the
proceedings in camera where the necessities of the situation
demanded. [669F-H]
It is well settled that a non-obstante clause has the
effect of overriding the provisions of a law or of the law
in which the said clause is inserted. The non-obstante
clause cannot reasonably be read as overriding anything
contained in any relevant existing law which is inconsistent
with the new enactment. Normally a non-obstante clause is
always expressed in a negative form i.e. by using the words
"notwithstanding anything contained" or "anything contained
in previous law shall not affect the provisions of a
particular Act" and so on.
[670B-E]
In the instant case the words "in addition and without
prejudice to any powers" cannot be construed to be a non-
obstante clause at all so as to override other provisions of
the Act or those of the Code of Criminal Procedure.
[670E]
Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr.
[1953] S.C.R. 1 referred to.
Interpretation of Statutes, Vepa P. Sarathi, 2nd Edn.
referred to.
Section 14 not only confers powers on a Court for
holding the proceedings in camera but also to exclude
publication of any evidence which includes the right of the
accused to get copies of the statements recorded during
police investigation or during the inquiry or during trial.
[670G]
The right to obtain copies of statements of witnesses
recorded by the police is a very valuable right because
without having those statements in his possession, it would
be difficult for the accused to defend himself effectively.
If an accused is not supplied either the statements recorded
by the police or the statements of witnesses recorded at the
inquiry or the trial he cannot defend himself and instruct
his lawyer to cross-examine the witnesses successfully and
effectively so as to disprove the prosecution case. [671D-E]
Section 14, therefore. could never have intended to
take away or deprive an accused of this valuable right which
has been conferred on him by the Criminal Law of the land.
The first part of the section does not prohibit or exclude
giving to an accused person copies of the statements of
witnesses either during police investigation or in court but
is mentioned merely as a motive or reason for holding
proceedings in camera. The entire sentence starting from
"application is made by the prosecution on the ground that
the publication of any evidence to be given or of any
statement to be made in the course of the
663
proceedings would be prejudicial to the safety of the State"
that all or any portion of the public should be excluded
during any part of the hearing has to be read conjunctively
as one composite sentence and there is no warrant for
truncating it into two separate parts dealing with different
subject matters. The words 'publication of any evidence' do
not indicate that the accused should not be allowed access
to the evidence recorded by the Court: they are merely made
to highlight the ground for holding the proceedings in
camera because if public are allowed to be present during
the hearing the evidence which is recorded in their presence
will amount to publication and it is in that sense alone
that the word publication has been used in section 14.
[671F-H]
If it is held that section 14, by using the word
'publication' deprives an accused of getting any copies of
the statement of witnesses or of the judgment under section
548 of the Code of Criminal Procedure or Criminal Rules of
Practice framed by the High Court then it would be difficult
to uphold the constitutional validity of section 14 because
in that event the procedure would become extremely
unreasonable, harsh and prejudicial to the accused as a
result of which the case would have been tried according to
a procedure which was not in consonance with the provisions
of article 21 of the Constitution. [672G-H]
The apprehension that if the accused was allowed access
to copies of statements recorded by the police or the
Magistrate it would amount to publication, is not well
founded. Under the provisions of section 5 of the Act, any
person who is found in possession or control of any document
or information and makes it public would also be deemed to
have committed an offence under that section and would be
prosecuted and liable to a heavy penalty. This prohibits
even the lawyers from disclosing the evidence outside the
Court.
[673B-C]
In the instant case the Magistrate was fully justified
in not compelling the lawyer to surrender his register which
contained a part of the privileged communication and even if
the lawyer had taken down the evidence in extenso for the
limited purpose of using it to defend the accused or cross-
examine the witnesses, he could not be prevented from doing
so, nor does section 14 contemplate or envisage such a
course of action. [673E-F]
The Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Satyen Bhowmik & Ors., A.I.R. 1970 Calcutta
535, overruled.
Anthony Allen Fletcher v. State 78 Calcutta Weekly
Notes 313 approved.
Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra
JUDGMENT:
&
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
368 of 1975
Appeal by special leave from the Judgment and Order
dated 5-4-1974 of the Calcutta High Court in Crl. Revn. No.
193 of 1971.
D. N. Mukherjee, M. M. Kshtriya, A. K. Ganguli and G.
S. Chatterjee for the appellant.
T. S. Arora for RR 1,3 to 17.
664
Uma Dutta for Respondent No. 2.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed
against a judgment dated April 5, 1974 of the Calcutta High
Court by which the order of the trial court was set aside
and the case was remitted for fresh hearing in the light of
the directions given by the High Court. The High Court
further directed that the Commitment Inquiry held by Mr. R.
P. Roy Chowdhury who was the Trial Magistrate, should be
held by some other Magistrate.
The facts of the case lie within a very narrow compass
and the central controversy turns upon the interpretation of
s. 14 of the Official Secrets Act., 1923 (hereinafter
referred to as the ‘Act’). It appears that a complaint was
filed on the 20th March 1969 against 38 accused persons
under s. 120B of the Indian Penal Code read with sections 3
9, and 10 of the Act. The charges against the accused were
no doubt very serious and concerned the security of the
State, as the accused persons are alleged to have passed on
some military secrets to the enemy resulting in serious
detriment to the safety and security of our country. Of the
38 accused persons named in the chargesheet, only 17 were in
custody and a commitment inquiry into the charges was held
against them by the trial Magistrate.
During the commitment inquiry the State filed an
application under s. 14 of the Act praying that the
proceedings be held in camera and public should be excluded
from attending the hearings of the case because the
statements made in the course of the proceedings would be
prejudicial to the safety of the State. It was also prayed
that apart from excluding the public from the hearings of
the proceeding, the accused should not be allowed to have
access to, or be given copies of, the statements of the
witnesses recorded by the Magistrate or those recorded
earlier during police investigation. The Magistrate partly
allowed the application but permitted the defence lawyer to
take copious notes of the statements of witnesses in order
to be in a position to cross-examine the witnesses.
Subsequently, the Magistrate directed the lawyer to produce
his notebook so that the Magistrate may examine if only a
summary of the evidence had been taken by the lawyer or the
statements had been taken in extenso in which case it would
amount to publication and, therefore, would be barred by s.
14 of the Act. The lawyer of the defence appearing before
the Magistrate first agreed to show his note-book but later
claimed privilege under s. 126 of the Evidence Act on the
ground that the register in which he had taken down the
notes of the evidence also contained certain instructions
given
665
to him which amounted to a privileged communication and
could not be looked into by the Court. In this view of the
matter the Magistrate found himself helpless and proceeded
with the inquiry. As the prosecution was not satisfied with
the procedure adopted by the Magistrate, the State filed a
revision before the High Court for quashing of the order of
the Magistrate in allowing the lawyer to cross-examine the
witnesses without impounding the notes comprising the
statements of the witnesses taken down in extenso by the
lawyer.
The High Court after hearing the counsel for the
parties thoroughly examined the entire position and
ultimately came to a finding that the Magistrate should have
taken legal action against the lawyer for flouting the
orders of the Court by not producing the notebook on the
plea of privilege which did not hold any water. The High
Court was further of the opinion that in view of the
provisions of s. 14 of the Act not only could the public be
excluded from taking part at the hearing but even the
statements of witnesses recorded by the court or other
documents could not be made available to the accused or his
counsel nor could copies of the said documents be given to
the accused. In this view of the matter the High Court
quashed the order of the Magistrate and remitted the case to
the trial court to be heard by some other Magistrate in view
of the directions given by it. Hence, this appeal to this
Court.
We have been taken through the entire judgment of the
High Court by the learned counsel for the parties. The two
Judges who decided the case agreed in the conclusion but
have given separate reasons for coming to the conclusion
arrived at by them.
The only question that is to be determined in the
present appeal is as to the scope and ambit of s. 14 of the
Act. Mr. Mukherjee, appearing for the State, however,
submitted that on a close scrutiny of the language employed
in s. 14, it would appear that the statute contains a two-
fold bar-(1) that publication of any evidence cannot be
given, and (2) that public should be excluded from attending
the hearing of the proceedings. The learned counsel
appearing for the respondent submitted that s. 14 does not
in any way deprive the valuable right of the accused to get
copies of the statements of witnesses recorded during the
commitment inquiry or the documents or statements recorded
by the police which is a statutory right conferred on the
accused under the Code of Criminal Procedure and the
Criminal rules framed thereunder by various High Courts. All
that s. 14 prohibits is that the public be excluded from
attending the hearings of the inquiry. Since the Magistrate
had already acceded to this prayer of the accused, there was
nothing more that could be done by him.
666
It appears that the Calcutta High Court has been
consistently taking the view as adumbrated by the learned
counsel for the appellant, viz., that the court has a
discretion under s. 14 of the Act not only to hold the
proceedings in camera by excluding the public but also has
the discretion to prohibit publication of any evidence given
in the course of the proceedings.
In Ramendra Singh v. Mohit Choudhary & Ors. a Division
Bench of the Calcutta High Court went to the extent of
holding that the Act prescribes a special procedure and,
therefore, overrides the procedure for trial under s. 251A
or 252 of the Code of Criminal Procedure as amended by the
Act of 1955. In this connection, the High Court observed as
follows:-
“The prosecution is under the Official Secrets Act
and it is unlikely that the Legislature would provide
for a camera trial and at the same time provide for
giving copies of all documents under section 173 to the
accused. This strikes at the root of secrecy and goes
counter to the provisions of trial in camera and this
is why the Legislature purposely used the word
‘complaint’ and provided for a special procedure
regarding cognizance. This view finds support from the
provisions of Section 14 of the Act providing for
camera trial.
The Official Secrets Act provides for a special
procedure of complaint and if it was upon a complaint
by a person authorised under the Act, cognizance was
taken under Section 190(1) (a) and not under Section
190(1) (b). The procedure for trial would therefore, be
under Section 252 of the Code of Criminal Procedure and
not under Section 251A. In respect of prosecution under
Section 252 of the Code of Criminal Procedure there is
no compulsory provision for giving copies of documents
referred to under Section 173 and the opposite parties
are not, therefore, entitled to copies as of right.”
The decision under appeal follows the aforesaid
decision and has taken the same view. In a later decision in
In Re Anthony Allen Fletcher v. State, the Calcutta High
Court seems to have struck a slightly different note. In
that case, the court was considering the question of bail
and the exclusion of the public from attending the hearing
of the case, where the following observations were made:
667
“On a Consideration of the provisions of the
Statute as also the imprimatur of the judicial
decisions, we ultimately hold that in view of the
specific provisions contained in Section 14 of the
Official Secrets Act, 1923 when it reasonably appears
to the Court that a trial eatiis apertis would have the
risk of any publication of any evidence to be given or
any statements to be made in course of the proceedings
would be prejudicial to the safety of the State, the
Court in exercise of its discretion can exclude the
public from such proceedings and that this power is in
addition to the inherent power exercised by the Court
to do justice.”
It may be noticed that the High Court did not go to the
extreme of holding that even the statements or evidence
recorded by the Magistrate in the course of the proceedings
would have to be excluded under s. 14. All that was held by
the High Court was that the Court has a discretion to
exclude the public from the proceedings and that this power
of exclusion was available to the court apart from the
inherent power which every Court possessed in this matter.
With due respect we find ourselves in agreement with the
view taken by the Calcutta High Court in Fletcher’s case
(supra) as mentioned above. However, we find ourselves
unable to agree with the view taken by the High Court in the
judgment under appeal for the reasons that we shall give
hereafter.
We might also mention that s. 14 was interpreted by
this Court in Naresh Shridhar Mirajkar & Ors. v. State of
Maharashtra & Anr., where this Court while dealing with the
question of holding proceedings in camera observed as
follows:-
“Having thus enunciated the universally accepted
proposition in favour of open trials, it is necessary
to consider whether this rule admits of any exceptions
or not. Cases may occur where the requirement of the
administration of justice itself may make it necessary
for the court to hold a trial in camera. While
emphasising the importance of public trial, we cannot
overlook the fact that the primary function of the
Judiciary is to do justice between the parties who
bring their causes before it. If a Judge trying a case
is satisfied that the very purpose of finding truth in
the case would be retarded, or even defeated if
witnesses are required to give evidence subject to
public gaze is it or is it not open to him in exercise
of his inherent power to hold the trial in camera
either partly or fully? ……..That is why we
668
feel no hesitation in holding that the High Court has
inherent jurisdiction to hold a trial in camera if the
ends of justice clearly and necessarily require the
adoption of such a course….. It is the fair
administration of justice which is the end of judicial
process, and so, if ever a real conflict arises between
fair administration of justice itself on the one hand,
and public trial on the other, inevitably, public trial
may have to be regulated or controlled in the interest
of administration of justice.”
While interpreting the scope and ambit of s. 14 this
Court in Naresh Shridhar Mirajkars case (supra) observed as
follows:-
“It would be noticed that while making a specific
provision authorising the court to exclude all or any
portion of the public from a trial, s. 14 in terms
recognises the existence of such inherent powers by its
opening clause.”
It may be pertinent to note that while this Court was
fully alive to the contents of s. 14, it neither held that
the opening part of the section amounted to a non obstante
clause nor that the section in any way deprived the accused
of the right of getting copies of the statements of
witnesses recorded by the court or before the police. In the
aforesaid case, the Supreme Court was concerned with a
defamation case but the observations made by this Court
fully apply to the facts of the present case also on the
view that we take on the scope and ambit of s. 14 of the
Act.
There can be no doubt that an open trial held in public
is the general rule and seems to be the very concomitant of
a fair and reasonable trial, yet the public can be excluded
from the hearings of the trial and the proceedings can be
held in camera only under very exceptional circumstances as
pointed out by this Court in the aforesaid case. This being
the position, section 14 must be interpreted so as to fall
in line with the observations made and the test laid down by
this Court regarding the doctrine of holding proceedings in
camera. A close and careful scrutiny of s. 14 would itself
clearly show that the section does not contemplate the type
of exclusion that the High Court seems to think.
It is true that offences under the Act are very serious
offences and maintenance of secrecy is of the very essence
of the matter but that by itself will not justify the
legislature to pass an Act so as to deprive an accused of
the valuable right to defend or for that matter to stifle
the defence itself. The importance of holding trial in
camera in cases under the Official Secrets Act has been
emphasised in R.V. Socialist
669
Worker Printers and Publishers Ltd. & Anr., where Lord
Widgery, C. J., observed as follows:-
“When one has an order for trial in camera, all
the public and all the press are evicted at one fell
swoop and the entire supervision by the public is
gone.. The actual conduct of the trial, the success or
otherwise of the defendant, does not turn on this kind
of thing, and very often the only value of the
witness’s name being given as opposed to it being
withheld is that if it is published up and down the
country other witnesses may discover that they can help
in regard to the case and come forward.”
With this background we shall now proceed to examine
the language of section 14 of the Act itself which may be
extracted thus:-
“14. Exclusion of public from proceedings.
In addition and without prejudice to any powers
which a Court may possess to order the exclusion of the
public from any proceedings if, in the course of
proceedings before a Court against any person for an
offence under this Act or the proceedings on appeal, or
in the course of the trial of a person under this Act,
application is made by the prosecution, on the ground
that the publication of any evidence to be given or of
any statement to be made in the course of the
proceedings would be prejudicial to the safety of the
State, that all or any portion of the public shall be
excluded during any part of the hearing, the Court may
make an order to that effect, but the passing of
sentence shall in any case take place in public.”
To begin with, the opening words of the section,
namely, ‘In addition and without prejudice to any powers
which a Court may possess’ clearly reveal that the intention
of the legislature was to give only an enabling additional
power to the court regarding holding the proceedings in
camera. In other words, the legislature never intended that
the inherent powers possessed by the court to hold the
proceeding in camera in suitable cases would be in any way
affected by section 14 but the intention was merely to give
an additional power to strengthen the hands of the court for
holding the proceedings in camera where the necessities of
the situation demanded. Thus, to begin with, section 14 is
merely an enabling and not a barring provision. Mr.
Mukherjee argued that the opening words of section 14,
referred to above, really amount to a non-obstante clause
overriding the provisions
670
of all Acts including the Code of Criminal Procedure and the
mode of trial contemplated by s. 14 would take precedence
over the mode of trial provided by s. 251A or 252 of the
Code of Criminal Procedure. We are, however, unable to agree
with this extreme argument which in fact overstates the law.
It is well settled that a non-obstante clause has doubtless
the effect of overriding the provisions of a law or of the
law in which the said clause is inserted. Sarathi in
‘Interpretation of Statutes’ defines a non-obstante clause
thus:-
“A section sometimes begins with the phrase
‘notwithstanding anything contained etc.’. Such a
clause is called a non-obstante clause and its general
purpose is to give the provision contained in the non-
obstante clause an overriding effect in the event of a
conflict between it and the rest of the Section.”
In Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr.
Sastri, C.J., held that the non-obstante clause cannot
reasonably be read as overriding anything contained in any
relevant existing law which is inconsistent with the new
enactment. These are the well settled rules of
interpretation of a non-obstante clause. Normally, a non-
obstante clause is always expressed in a negative form, that
is to say, by using the words ‘notwithstanding anything
contained’ or ‘anything contained in a previous law shall
not affect the provisions of a particular Act’ and so on. In
the instant case, the words ‘in addition and without
prejudice to any powers cannot be construed to be a non
obstante clause at all so as to override other provisions of
the Act or those of the Code of Criminal Procedure. In these
circumstances, therefore, the argument of Mr. Mukherjee that
the opening words of s. 14 amount to a non-obstante clause
cannot be accepted on a simple and plain interpretation of
the opening part of section 14.
This takes us to the substantive portion of the Act on
which reliance was placed both by Mr. Mukherjee and by the
High Court so as to hold that the section not only conferred
powers on a court for holding the proceedings in camera but
also to exclude publication of any evidence which includes
the right of the accused to get copies of the statements
recorded during police investigation or during the inquiry
or during trial. With great respect to the learned Judges of
the Calcutta High Court, we feel that the main part of the
section has not been correctly interpreted by them. The High
Court seems to have taken for granted that section 14
consists of two separate parts, one, providing for a trial
in camera, and the other prohibiting publication of
671
evidence. By the expression ‘publication of evidence’ is
meant, according to the High Court, the power to deprive an
accused of the right to get copies of the evidence recorded
by the court or the statements recorded during the police
investigation. We might mention here that as s. 13(3) of the
Act clearly provides that no court shall take cognizance of
any offence under the Act except upon a complaint made by or
under the authority of the Government or any person
empowered by it, it is manifest that s. 251A of the Code of
Criminal Procedure, as amended by the Act of 1955, will not
apply because the present case was not instituted on a
police report but on the basis of a complaint. As the
occurrence had taken place before the Code of 1973,
therefore, the provisions of s. 207 of the Code of 1973
would not apply to the present case.
The question, however, is: does the first part of s. 14
empower the court to take away the valuable right of an
accused of getting copies of the statements recorded by the
Magistrate before the Court ? Even before the amending Act
of 1955, under the criminal rules framed by various High
Courts, an accused was undoubtedly entitled to have copies
of the statements of witnesses recorded by the police. This
is a very valuable right because without having the
statements recorded by the police in his possession, it
would be difficult, if not impossible, for an accused to
defend himself effectively. It is well settled that fouler
the crime the higher should be the proof. If an accused is
not supplied either the statements recorded by the police or
the statement of witnesses recorded at the inquiry or the
trial, how can he possibly defend himself and instruct his
lawyer to cross-examine the witnesses successfully and
effectively so as to disprove the prosecution case. We,
therefore, think that s. 14 could never have intended to
take away or deprive an accused of this valuable right which
has been conferred on him by the criminal law of the land.
The legislature when it passed the Act in 1923 was aware of
the provisions of the Code of Criminal Procedure which had
conferred the valuable right on an accused in order to
defend himself. Indeed, if any of these rights were to be
taken away, we should have expected a clearer and more
specific language used in section 14 to connote such an
intention. Our reading of s. 14 is merely this: that the
first part of the section does not prohibit or exclude
giving to an accused copies of the statements of witnesses
either during police investigation or in court but is
mentioned merely as a motive or reason for holding the
proceedings in camera. The entire sentence starting from
‘application is made by the prosecution, on the ground that
the publication of any evidence to be given or of any
statement to be made in the course of the proceedings would
be prejudicial to the safety of the State, that all or any
portion of the
672
public shall be excluded during any part of the hearing’ has
to be read conjunctively as one composite sentence and there
is no warrant for truncating it into two separate parts
dealing with different subject matters. The words
‘publication of any evidence’ on which great stress has been
laid by Mr. Mukherjee and the High Court do not indicate
that the accused should not be allowed access to the
evidence recorded by the court, are merely made to highlight
the ground for holding the proceedings in camera because if
public are allowed to be present during the hearing the
evidence which is recorded in their presence it will amount
to publication and it is in that sense alone that the word
‘publication’ has been used in section 14.
Indeed, if the interpretation put by the High Court or
by Mr. Mukherjee is accepted then the provisions of section
14 will have to be struck down as being violative of Arts.
14 and 21 of the Constitution of India.
This Court has now widened the horizon of the concept
of liberty, as contained in Art. 21 so as to give the word
‘procedure’ a very wide connotation. In Maneka Gandhi v.
Union of India while detailing the attributes of a fair
trial as contemplated in Art. 21 this Court observed as
follows:-
“The principle of reasonableness, which legally as
well as philosophically, is an essential element of
equality or non arbitrariness pervades Article 14 like
a brooding omnipresence and the procedure contemplated
by Article 21 must answer the best of reasonableness in
order to be in conformity with Article 14. It must be
“right and just and fair” and not arbitrary, fanciful
or oppressive; otherwise, it would be no procedure at
all and the requirement of Article 21 would not be
satisfied.”
Thus, if we hold that s. 14 by using the word
‘publication’ deprives an accused of getting any copies of
the statement of witnesses or of the judgment under s. 548
of the Code of Criminal Procedure or Criminal Rules 308 and
310 framed by the Calcutta High Court, then it would be
difficult to uphold the constitutional validity of s. 14
because then the procedure would become extremely
unreasonable harsh and prejudicial to the accused as a
result of which the case would have been tried according to
a procedure which was not in consonance with the provisions
of Art. 21 of the Constitution. This aspect of the matter
does not appear to have been considered by the High Court
perhaps because Maneka Gandhi’s case (supra) came much
later.
673
Mr. Mukherjee submitted that if the accused is allowed
to have access to the statements recorded by the police or
is given a copy of the statement recorded by the Magistrate,
then it will amount to publication and will endanger the
safety and security of the country because the accused or
the lawyer who is defending the accused may publish the
statements or disclose the same to other persons. This
apprehension, in our opinion, is not well founded. The Act
itself takes particular care of such a situation because
under the provisions of s. 5 of the Act any person who is
found in possession or control of any document or
information and makes it public would also be deemed to have
committed an offence under that section and would be
prosecuted and entitled to a heavy penalty. This, therefore,
prohibits even the lawyers from disclosing the evidence
outside the court. So far as the arguments and the
discussion of the evidence inside the court is concerned, so
long as the proceedings are in camera the danger of
publication is completely excluded.
The High Court had been rather bitter on the trial
Magistrate when it observed that he could compel the lawyer
to submit his register. The observations made by the High
Court on the conduct of the Magistrate or on the lawyer were
not at all called for because both of them were doing their
duties according to law. On the view that we have taken, the
Magistrate was fully justified in not compelling the lawyer
to surrender his register which undoubtedly contained a part
of the privileged communication and even if the lawyer had
taken down the evidence in extenso for the limited purpose
of using it to defend the accused or cross-examine the
witnesses, he could not be prevented from doing so, nor does
s. 14 contemplate or envisage such a course of action. The
Magistrate also in declining to give copies of the
statements concerned to the accused, took an erroneous view
of s. 14 of the Act which, as we have already held, did not
debar the Magistrate from giving copies to the accused for
the purpose of his defence. Thus, we are satisfied that the
judgment of the High Court under appeal is vitiated by an
error of law and it has not correctly interpreted s. 14 of
the Act. Similarly the earlier decision of the Calcutta High
Court in Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Satyen Bhowmik & Ors. cannot be held to be
good law and must be overruled.
Thus on an overall consideration of the facts and
circumstances of the case and a true interpretation of the
language employed in s. 14 of the Act, we reach the
following conclusions:-
1. That s. 14 apart from providing that the
proceedings of the Court may be held in
camera under the circumstances men-
674
tioned in the Section, does not in any way
affect or override the provisions of the
Criminal Procedure Code relating to enquiries
or trials held thereunder.
2. That s. 14 does not in any way deprive the
valuable rights of the accused to get copies
of the statement recorded by the Magistrate
or statements of witnesses recorded by the
police the documents obtained by the Police
during the investigation as envisaged by
criminal Rules 308 and 310 framed under the
Code of Criminal Procedure by various High
Courts nor does s. 14 in any way affect the
right of the accused to get copies under s.
548 of the Code of Criminal Procedure.
3. That the opening words of s. 14 do not amount
to a non obstante clause but are merely in
the nature of an enabling provision reserving
the inherent powers of the Court to exclude
the public from the proceedings if the Court
is of the opinion that it is just and
expedient to do so.
4. That there was absolutely no impropriety on
the power of the Magistrate in not taking
action against the defence lawyer for his
refusal to show his register because the
lawyer had rightly claimed privilege under s.
126 of the Evidence Act as the register
contained instructions given by the client
which being privileged could not be disclosed
to the Court. On a parity of reasoning we
find no impropriety on the conduct of the
lawyer in refusing to show the statement of
witnesses recorded by the Court in extenso in
order to prepare himself for an effective
cross-examination of the witnesses. Hence the
strictures passed by the High Court on the
Magistrate as also on the lawyer of the
defence were, in our opinion, totally
unwarranted.
5. That if the lawyer of the defence or staff of
the Court or any one who was not excluded
from the hearing of the case made any attempt
to disclose the contents of the documents or
the statements of the witnesses, exposed
himself to a prosecution on a charge under s.
5 of the Act.
For the reasons given above, we overrule the view of
the High Court and the reasons given therefor that s. 14 of
the Act prohibits the giving of copies of the statement
concerned to the accused or that the lawyer is prohibited
from taking the statements in extenso and had a duty to show
the same to the court. We also overrule the view taken by
the High Court regarding the interpretation of s. 14 of the
Act.
675
We do not agree with the High Court that the case should be
tried by some other Magistrate but as lot of time has
elapsed, surely the Magistrate against whose orders revision
was taken to the High Court must have been transferred by
this time. Therefore, the case will now be inquired into by
a Magistrate who is available in the light of the
observations made by us. The appeal is disposed of
accordingly.
N.K.A.
676