CASE NO.: Appeal (crl.) 555 of 1999 PETITIONER: RAKESH KUMAR JAIN Vs. RESPONDENT: STATE THROUGH CBI DATE OF JUDGMENT: 08/08/2000 BENCH: K.T. Thomas & R.P. Sethi. JUDGMENT:
SETHI,J.
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The criminal complaint under Section 5(4) read with
Sections 5(2) & (3) of the Official Secrets Act, 1923
(hereinafter called “the Act”) was filed against the
petitioner in the Court of Chief Metropolitan Magistrate,
Delhi by the Union of India through Deputy Superintendent of
Police, Central Bureau of Investigation, SPE, Anti
Corruption Unit, New Delhi. The petitioner filed an
application under Section 245 of the Code of Criminal
Procedure in the Trial Court for being discharged on the
grounds that the order of the prosecution had not been
passed by an appropriate authority and that the cognizance
could not have been taken as according to him the complaint
was barred by limitation. The Magistrate rejected the
application by his order dated 17.3.1995 and the revision
filed in the High Court was dismissed vide the order
impugned in this appeal. Relying on the provisions of
Section 13(3) of the Act, the Trial Magistrate as well as
the High Court held that Section 13(3) of the Act provided
the taking of previous consent or sanction of the
appropriate Government and the time required for obtaining
such consent or sanction was to be excluded in terms of
Section 470(3) of the Code of Criminal Procedure. It may be
noticed at this stage that limitation in the instant case is
stated to have started from 24th April, 1985 and the
complaint was filed in the Court on 19th May, 1988
apparently beyond 25 days of the period of limitation
prescribed. The plea of the complainant was that period of
79 days required for obtaining the sanction order should be
excluded in computing the period of limitation. Pointed
reference was made to the order of sanction dated 21st
April, 1988, copy of which has been placed on the paperbook
of this appeal. Accepting the plea of the complainant, the
complaint filed against the petitioner was held to be within
time.
Mr.Vijay Bahuguna, Senior Advocate appearing for the
petitioner submitted that as no sanction or consent was
provided to be taken from the Government under Section 13(3)
of the Act, the complaint admittedly filed after the period
of limitation was required to be dismissed and the accused
discharged in terms of Section 245 of the Code of Criminal
Procedure. He did not urge any other point. In support of
his contention he has relied upon the judgment of this Court
in Electrical Manufacturing Co. Ltd. v. D.D. Bhargava
[1968 (1) SCR 394]. Shri Kirit N. Rawal, learned
Additional Solicitor General, defending the impugned
judgment has submitted that the judgment relied upon is
distinguishable as the mandate of Section 13(3) is clear and
unambiguous providing the obtaining of sanction before
filing the complaint. He drew our attention towards the
averments made in the petition and the order of sanction to
urge that even if no sanction was required, the complaint be
deemed to have been filed within time as the complainant and
the other officials bonafidely believed that such a sanction
was necessary before the filing of the complaint.
In order to appreciate the rival submissions of the
learned counsel appearing in the case, a cursory look at
some of the provisions of the Act is necessary. The Act has
been enacted to consolidate the law relating to official
secrets. Section 5(2) provides that if any person
voluntarily receives any secret official code or pass word
or any sketch, plan, model, article, note, document or
information knowing or having reasonable ground to believe,
at the time when he receives it, that the code, pass word,
sketch, plan, model, article, note, document or information
is communicated in contravention of the Act, he shall be
guilty of an offence under the section for which punishment
as provided under sub-section (4). Section 6 deals with and
provides punishment for unauthorised use of uniforms,
falsification of reports, forgery, personation and false
documents. Section 11 authorises a Presidency Magistrate,
Magistrate of first class or Sub-divisional Magistrate to
issue such warrants under the circumstances as specified
therein. Section 13 provides that no court other than that
of the Magistrate of First Class specially empowered in that
behalf, shall try any offence under the Act. Sub-section
(3) of Section 13, reads:
“No court shall take cognizance of any offence under
this Act unless upon complaint made by order of, or under
authority from, the Appropriate Government or some officer
empowered by the Appropriate Government in this behalf”
Sub-section (3) provides that cognizance of offence
under the Act can be taken only upon complaint which is (a)@@
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filed by order of appropriate government; or (b) filed@@
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under authority from the appropriate government; or (c) by
some officer empowered by the appropriate government. No
consent or sanction of the Government or any authority, as
contemplated by Explanation to Sub-section (3) of Section
470 Cr.P.C., is required for filing the complaint under the
Act. ‘Consent’ or ‘sanction’ envisaged under Section 470
Cr.P.C. cannot be equated with the ‘order’ or ‘authority’
for the purposes of filing the complaint as envisaged by
Sub-section (3) of Section 13 of the Act. Specific
provisions have been made in various statutes requiring
previous consent or sanction for the purposes of launching
of prosecution against the accused under those enactments.
Explanation to Sub-section (3) of Section 470 Cr.P.C.
obviously refers to such consents and sanctions and not the
order or authority as required under the Act. Consent or
sanction as are referred to in the Prevention of Corruption
Act, Prevention of Food Adulteration Act, various Foodgrains
Control Orders, and other similar enactments envisage the
application of mind before the grant of such consent or
sanction which is a quasi-judicial function, whereas the
passing of order, individual or general, or conferment of
authority individually or generally, or empowering a person
for the purposes of filing a complaint is only an
administrative action facilitating in identifying the
complainant before the court for the purposes of filing and
prosecuting the case under the Act. The Legislature, in its
wisdom, thought it appropriate to exclude only such period
which is required for obtaining the previous consent or
sanction of the Government for institution of any
prosecution of an offence and not obtaining of orders or
authority or naming a person for the purpose of filing the
complaint.
This Court in Electrical Manufacturing Co. Ltd.’s case
(Supra) while dealing with Section 6 of the Import and@@
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Export (Control) Act, 1947 which provided that no Court@@
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shall take cognizance of any offence punishable under the
Act except upon complaint in writing made by an officer
authorised in that behalf by the Central Government, by
general or special order, held that the principles
applicable to cases requiring sanction have no application
to filing of complaints under the Act. Section 6 of that
Act only insisted that complaint was to be made in writing
and must have been filed by an officer authorised in that
behalf. In that case the Court relied upon the observations
made in S.A. Venkataraman v. The State [1958 SCR 1037]
wherein it was held:
“In construing the provisions of a statute it is
essential for a court, in the first instance, to give effect
to the natural meaning of the words used therein, if those
words are clear enough. It is only in the case of any
ambiguity that a court is entitled to ascertain the
intention of the legislature by construing the provisions of
the statute as a whole and taking into consideration other
matters and the circumstances which led to the enactment of
the statute.”
Though Sub-Section (3) of Section 13 of the Act is not
pari materia to Section 6 of the Import and Export (Control)
Act, 1947, yet we find that the insistence of the order or
authority is intended to ascertain the filing of the
complaint under the Act without requiring giving consent or
sanction to prosecute. Learned Additional Solicitor General
wanted to impress upon us that Sub-section (3) was in two
parts – one dealing with the passing of the order which
necessarily meant consent or sanction and the second dealing
with the person authorised to file the complaint. On
critical examination of the plain words of the sub-section
and the object underlying it, we do not agree that the
aforesaid sub-section has two parts, as argued. We conceive
no doubt that sub-section (3) of Section 13 envisages only
the filing of the complaint, by order of or under authority
from the appropriate government or by an officer empowered
by such Government. If the intention of the Legislature was
to have the section in two parts, one dealing with the grant
of consent or sanction by way of order and the other part
dealing with the authority of the person to file the
complaint, in that case after the words “made by order of”,
there should not have been a “comma” and the word “or”. In
that event for the word “or” the Legislature must have used
the word “and” and omitted the comma. The High Court was
not justified in reading between the lines to hold:@@
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“….that the requirement in Section 13(3) of the Official
Secrets Act amounts to taking of previous consent or
sanction of the appropriate Government. One should not go
by the actual words used. What should be seen is the
intention of the legislature. The purpose of providing for
previous consent, sanction or authorisation from the
appropriate government or other authority before launching
prosecution is for the protection of the alleged offender so
that irresponsible prosecution is not launched.”
We, therefore, agree with the submissions made by
Mr.Bahuguna that no sanction or consent is provided to be
taken from the Government under Section 13(3) of the Act and
the period spent in obtaining the orders for filing the
complaint cannot be excluded under Explanation to Sub-
section (3) of Section 470 Cr.P.C.
The mere fact that the complaint was filed 25 days after
the expiry of the period of limitation, did not entitle the
accused to seek his discharge under Section 245 Cr.P.C.
because the complainant has, under law, a right to seek for
extension of time under Section 473 Cr.P.C. The complainant
could satisfy the Magistrate on the facts and circumstances
of the case that the delay was explainable which was
occasioned on account of their bonafide belief to obtain the
sanction for the purpose of filing the complaint. After
noticing the averments made in the complaint and perusing
the record particularly order of the Government of India
dated 21st April, 1988, authorising Sh.K.N. Tiwari, Deputy
Superintendent of Police, Central Bureau of Investigation,
New Delhi to lodge the complaint, it can be safely held that
the complainant was entitled to extension of period of
limitation under Section 473 Cr.P.C. No useful purpose
would be served by again directing the complainant to
approach the Trial Magistrate for the purposes of seeking
extension of period of limitation. The complainant is held
to have explained the delay in filing the complaint which
required extension. The complaint is, therefore, held to be
within time and the petitioner is not entitled to be
discharged on this ground.
During the arguments it was pointed out that as various
complaints filed after obtaining sanction from the Central@@
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Government and the courts having given the exclusion of the@@
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period in terms of Explanation to sub-section (3) of Section
470 Cr.P.C., this judgment of ours may amount to upsetting
all such orders and affect the pending on-going proceedings
under the Act. The accused in those cases, in such event,
may be lured to raise similar pleas as have been raised in
this case for the purposes of quashing the proceeding on the
basis of this judgment. Though the apprehension appears to
be misconceived, yet we make it clear that the present
judgment would not, in any way, affect the continuing
proceedings in any court wherein the complaints, under the
Act, have been filed after obtaining sanction and the courts
have given remission of the period in terms of Explanation
to Sub-Section (3) of Section 470 Cr.P.C. All such
extensions shall be deemed to be valid even under Section
473 Cr.P.C.
There is no merit in this appeal which is dismissed with
the direction to the Trial Magistrate to deal with the case
in accordance with law and expedite the disposal of the
complaint.
