{"id":50119,"date":"1981-01-15T00:00:00","date_gmt":"1981-01-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/superintendent-remembrancer-of-vs-satyen-bhowmick-and-ors-on-15-january-1981"},"modified":"2015-12-15T10:49:44","modified_gmt":"2015-12-15T05:19:44","slug":"superintendent-remembrancer-of-vs-satyen-bhowmick-and-ors-on-15-january-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/superintendent-remembrancer-of-vs-satyen-bhowmick-and-ors-on-15-january-1981","title":{"rendered":"Superintendent & Remembrancer Of … vs Satyen Bhowmick And Ors on 15 January, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Superintendent & Remembrancer Of … vs Satyen Bhowmick And Ors on 15 January, 1981<\/div>\n
Equivalent citations: 1981 AIR 917, \t\t 1981 SCR (2) 661<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nSUPERINTENDENT & REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL\n\n\tVs.\n\nRESPONDENT:\nSATYEN BHOWMICK AND ORS.\n\nDATE OF JUDGMENT15\/01\/1981\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nVARADARAJAN, A. (J)\n\nCITATION:\n 1981 AIR  917\t\t  1981 SCR  (2) 661\n 1981 SCC  (2) 109\t  1981 SCALE  (1)179\n\n\nACT:\n     Official  Secrets\t Act-Section  14-Scope\t of-Advocate\ntaking\tnotes\ton  evidence  of  witnesses  in\t respect  of\nproceedings held  in camera-Court,  if could prohibit taking\nnotes-Court if\tcould compel  the advocate  to\tproduce\t his\nnotes for inspection-Advocate if could claim privilege under\nsection 126 of Evidence Act.\n\n\n\nHEADNOTE:\n     Section 14 of the Official Secrets Act provides that in\naddition to  and without  prejudice to\tany powers  which  a\nCourt may  possess to order the exclusion of the public from\nany proceedings\t if, in\t the course  of proceedings before a\nCourt against  any person for an offence under this Act, the\nprosecution makes  an application  that publication  of\t any\nevidence to  be given  would be prejudicial to the safety of\nthe State.  The Court  may make\t an  order  prohibiting\t the\npublication of\tevidence to  be given or of any statement to\nbe made\t in the\t course of  proceedings if  it is of opinion\nthat the  proceedings would  be prejudicial to the safety of\nthe State.\n     On the  allegation that  the accused had passed on some\nmilitary secrets to the enemy resulting in serious detriment\nto the\tsafety and  security of the country the accused were\ncharge-sheeted under sections 3, 9 and 10 of the Act.\n     During the\t commitment inquiry  the prosecution  prayed\nthat the  accused should not be allowed to have access to or\nbe given  copies of  statements of witnesses recorded by the\nMagistrate. The\t defence lawyers  were allowed to take notes\nof the\tstatements of  witnesses. When\tthe Magistrate asked\nthe defence lawyers to produce their note-books for perusal,\nthey claimed privilege under section 126 of the Evidence Act\non the ground that they contained certain instructions given\nto  them   by  the  accused  which  amounted  to  privileged\ncommunication and  that for  this reason  they could  not be\nlooked\tinto   by  the\tCourt.\tThe  Magistrate\t upheld\t the\nobjection.\n     Purporting to  follow one\tof its earlier decisions the\nHigh Court  in a  revision filed  by the State held that the\nMagistrate should have taken legal action against the lawyer\nfor flouting  its order\t by not\t producing the note-books on\nthe ground  of privilege.  It also  held that in view of the\nprovisions of  section 14  of the  Act not  only  could\t the\npublic be  excluded from the hearing but even the statements\nof witnesses  recorded\tby  the\t Court\tcould  not  be\tmade\navailable to the accused or his counsel.\n     In appeal\tto this\t Court it  was\tcontended  that\t the\nopening words  of section  14  really  amounted\t to  a\tnon-\nobstante  clause  overriding  the  provisions  of  all\tActs\nincluding the  Code of\tCriminal Procedure  and the  mode of\ntrial contemplated  by section 14 would take precedence over\nthe mode of trial provided by s. 251-A\n662\nor s.  252 of the Code and (2) the Magistrate could not only\nhold the proceedings in camera but could exclude publication\nof any evidence, including the right of accused to get notes\nof the\tstatements recorded  during the police investigation\nor during inquiry or trial.\n^\n     HELD: The\topening words of section 14 \"in addition and\nwithout prejudice  to any  powers which a Court may possess\"\nclearly reveal\tthat the intention of the legislature was to\ngive  only   an\t enabling  additional  power  to  the  Court\nregarding  holding   of\t the   proceedings  in\tcamera.\t The\nlegislature  never   intended  that   the  inherent   powers\npossessed by  the Court to hold the proceedings in camera in\nsuitable cases\tshould in any way be affected by section 14.\nThe intention  was merely  to give  an additional  power  to\nstrengthen  the\t  hands\t of   the  Court   for\tholding\t the\nproceedings in camera where the necessities of the situation\ndemanded. [669F-H]\n     It is  well settled  that a non-obstante clause has the\neffect of  overriding the  provisions of a law or of the law\nin which  the said  clause  is\tinserted.  The\tnon-obstante\nclause cannot  reasonably be  read  as\toverriding  anything\ncontained in any relevant existing law which is inconsistent\nwith the  new enactment.  Normally a  non-obstante clause is\nalways expressed  in a negative form i.e. by using the words\n\"notwithstanding anything  contained\" or \"anything contained\nin previous  law  shall\t not  affect  the  provisions  of  a\nparticular Act\" and so on.\n\t\t\t\t\t\t    [670B-E]\n     In the  instant case the words \"in addition and without\nprejudice to  any powers\"  cannot be  construed to be a non-\nobstante clause at all so as to override other provisions of\nthe Act or those of the Code of Criminal Procedure.\n\t\t\t\t\t\t      [670E]\n     Aswini Kumar  Ghosh &  Anr. v.  Arabinda  Bose  &\tAnr.<\/a>\n[1953] S.C.R. 1 referred to.\n     Interpretation of\tStatutes, Vepa\tP. Sarathi, 2nd Edn.\nreferred to.\n     Section 14\t not only  confers powers  on  a  Court\t for\nholding the  proceedings  in  camera  but  also\t to  exclude\npublication of\tany evidence which includes the right of the\naccused to  get copies\tof the\tstatements  recorded  during\npolice investigation  or during the inquiry or during trial.\n[670G]\n     The right\tto obtain  copies of statements of witnesses\nrecorded by  the police\t is a  very valuable  right  because\nwithout having\tthose statements in his possession, it would\nbe difficult  for the accused to defend himself effectively.\nIf an accused is not supplied either the statements recorded\nby the police or the statements of witnesses recorded at the\ninquiry or  the trial  he cannot defend himself and instruct\nhis lawyer  to cross-examine  the witnesses successfully and\neffectively so as to disprove the prosecution case. [671D-E]\n     Section 14,  therefore. could  never have\tintended  to\ntake away or deprive an accused of this valuable right which\nhas been  conferred on\thim by the Criminal Law of the land.\nThe first  part of  the section does not prohibit or exclude\ngiving to  an accused  person copies  of the  statements  of\nwitnesses either during police investigation or in court but\nis mentioned  merely as\t a  motive  or\treason\tfor  holding\nproceedings in\tcamera. The  entire sentence  starting\tfrom\n\"application is\t made by  the prosecution on the ground that\nthe publication\t of any\t evidence to  be  given\t or  of\t any\nstatement to be made in the course of the\n663\nproceedings would be prejudicial to the safety of the State\"\nthat all  or any  portion of  the public  should be excluded\nduring any  part of the hearing has to be read conjunctively\nas one\tcomposite sentence  and\t there\tis  no\twarrant\t for\ntruncating it into two separate parts dealing with different\nsubject matters.  The words 'publication of any evidence' do\nnot indicate  that the\taccused should not be allowed access\nto the\tevidence recorded by the Court: they are merely made\nto highlight  the ground  for  holding\tthe  proceedings  in\ncamera because\tif public  are allowed\tto be present during\nthe hearing the evidence which is recorded in their presence\nwill amount  to publication  and it  is in  that sense alone\nthat the  word publication  has been  used  in\tsection\t 14.\n[671F-H]\n     If it  is held  that section  14,\tby  using  the\tword\n'publication' deprives\tan accused  of getting any copies of\nthe statement  of witnesses or of the judgment under section\n548 of\tthe Code  of Criminal Procedure or Criminal Rules of\nPractice framed by the High Court then it would be difficult\nto uphold  the constitutional validity of section 14 because\nin  that   event  the\tprocedure  would   become  extremely\nunreasonable, harsh  and prejudicial  to the  accused  as  a\nresult of  which the case would have been tried according to\na procedure  which was not in consonance with the provisions\nof article 21 of the Constitution. [672G-H]\n     The apprehension that if the accused was allowed access\nto copies  of statements  recorded  by\tthe  police  or\t the\nMagistrate it  would amount  to\t publication,  is  not\twell\nfounded. Under\tthe provisions\tof section 5 of the Act, any\nperson who is found in possession or control of any document\nor information\tand makes  it public would also be deemed to\nhave committed\tan offence  under that\tsection and would be\nprosecuted and\tliable to  a heavy  penalty. This  prohibits\neven the  lawyers from\tdisclosing the\tevidence outside the\nCourt.\n\t\t\t\t\t\t    [673B-C]\n     In the  instant case the Magistrate was fully justified\nin not compelling the lawyer to surrender his register which\ncontained a part of the privileged communication and even if\nthe lawyer  had taken  down the\t evidence in extenso for the\nlimited purpose\t of using it to defend the accused or cross-\nexamine the  witnesses, he could not be prevented from doing\nso, nor\t does section  14 contemplate  or  envisage  such  a\ncourse of action. [673E-F]\n     The Superintendent\t and Remembrancer  of Legal Affairs,\nWest Bengal  v. Satyen\tBhowmik & Ors., A.I.R.<\/a> 1970 Calcutta\n535, overruled.\n     Anthony Allen  Fletcher v.\t State\t78  Calcutta  Weekly\nNotes 313 approved.\n     Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra\nJUDGMENT<\/a>:\n<\/pre>\n
&
\n     CRIMINAL APPELLATE\t JURISDICTION: Criminal\t Appeal\t No.
\n368 of 1975
\n     Appeal by\tspecial leave  from the\t Judgment and  Order
\ndated 5-4-1974\tof the Calcutta High Court in Crl. Revn. No.
\n193 of 1971.\n<\/p>\n
     D. N.  Mukherjee, M.  M. Kshtriya, A. K. Ganguli and G.
\nS. Chatterjee for the appellant.\n<\/p>\n
     T. S. Arora for RR 1,3 to 17.\n<\/p>\n
664<\/span><\/p>\n
     Uma Dutta for Respondent No. 2.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J. This appeal by special leave is directed
\nagainst a  judgment dated April 5, 1974 of the Calcutta High
\nCourt by  which the  order of  the trial court was set aside
\nand the\t case was remitted for fresh hearing in the light of
\nthe directions\tgiven by  the High  Court.  The\t High  Court
\nfurther directed  that the Commitment Inquiry held by Mr. R.
\nP. Roy\tChowdhury who  was the\tTrial Magistrate,  should be
\nheld by some other Magistrate.\n<\/p>\n
     The facts\tof the case lie within a very narrow compass
\nand the central controversy turns upon the interpretation of
\ns. 14  of  the\tOfficial  Secrets  Act.,  1923\t(hereinafter
\nreferred to  as the  ‘Act’). It appears that a complaint was
\nfiled on  the 20th  March 1969\tagainst 38  accused  persons
\nunder s.  120B of the Indian Penal Code read with sections 3
\n9, and\t10 of  the Act. The charges against the accused were
\nno doubt  very serious\tand concerned  the security  of\t the
\nState, as  the accused persons are alleged to have passed on
\nsome military  secrets to  the enemy  resulting\t in  serious
\ndetriment to  the safety and security of our country. Of the
\n38 accused persons named in the chargesheet, only 17 were in
\ncustody and  a commitment  inquiry into the charges was held
\nagainst them by the trial Magistrate.\n<\/p>\n
     During  the  commitment  inquiry  the  State  filed  an
\napplication  under  s.\t14  of\tthe  Act  praying  that\t the
\nproceedings be\theld in camera and public should be excluded
\nfrom  attending\t  the  hearings\t of  the  case\tbecause\t the
\nstatements made\t in the\t course of  the proceedings would be
\nprejudicial to\tthe safety  of the State. It was also prayed
\nthat apart  from excluding  the public\tfrom the hearings of
\nthe proceeding,\t the accused  should not  be allowed to have
\naccess to,  or be  given copies\t of, the  statements of\t the
\nwitnesses recorded  by\tthe  Magistrate\t or  those  recorded
\nearlier during\tpolice investigation.  The Magistrate partly
\nallowed the  application but permitted the defence lawyer to
\ntake copious  notes of\tthe statements of witnesses in order
\nto  be\t in  a\tposition  to  cross-examine  the  witnesses.
\nSubsequently, the  Magistrate directed the lawyer to produce
\nhis notebook  so that  the Magistrate  may examine if only a
\nsummary of  the evidence had been taken by the lawyer or the
\nstatements had\tbeen taken in extenso in which case it would
\namount to  publication and, therefore, would be barred by s.
\n14 of  the Act.\t The lawyer  of the defence appearing before
\nthe Magistrate\tfirst agreed to show his note-book but later
\nclaimed privilege  under s.  126 of  the Evidence Act on the
\nground that  the register  in which  he had  taken down\t the
\nnotes of  the evidence\talso contained\tcertain instructions
\ngiven
\n665<\/span>
\nto him\twhich amounted\tto a  privileged  communication\t and
\ncould not  be looked  into by the Court. In this view of the
\nmatter the  Magistrate found  himself helpless and proceeded
\nwith the  inquiry. As the prosecution was not satisfied with
\nthe procedure  adopted by  the Magistrate, the State filed a
\nrevision before\t the High Court for quashing of the order of
\nthe Magistrate\tin allowing  the lawyer to cross-examine the
\nwitnesses  without   impounding\t the  notes  comprising\t the
\nstatements of  the witnesses  taken down  in extenso  by the
\nlawyer.\n<\/p>\n
     The High  Court  after  hearing  the  counsel  for\t the
\nparties\t thoroughly   examined\tthe   entire  position\t and
\nultimately came to a finding that the Magistrate should have
\ntaken legal  action against  the  lawyer  for  flouting\t the
\norders of  the Court  by not  producing the  notebook on the
\nplea of\t privilege which  did not  hold any  water. The High
\nCourt was  further of  the  opinion  that  in  view  of\t the
\nprovisions of  s. 14 of the Act not only could the public be
\nexcluded from  taking part  at\tthe  hearing  but  even\t the
\nstatements of  witnesses recorded  by  the  court  or  other
\ndocuments could\t not be made available to the accused or his
\ncounsel nor  could copies  of the said documents be given to
\nthe accused.  In this  view of\tthe matter  the\t High  Court
\nquashed the order of the Magistrate and remitted the case to
\nthe trial court to be heard by some other Magistrate in view
\nof the\tdirections given  by it.  Hence, this appeal to this
\nCourt.\n<\/p>\n
     We have  been taken  through the entire judgment of the
\nHigh Court  by the  learned counsel for the parties. The two
\nJudges who  decided the\t case agreed  in the  conclusion but
\nhave given  separate reasons  for coming  to the  conclusion
\narrived at by them.\n<\/p>\n
     The only  question that  is to  be\t determined  in\t the
\npresent appeal\tis as to the scope and ambit of s. 14 of the
\nAct.  Mr.  Mukherjee,  appearing  for  the  State,  however,
\nsubmitted that\ton a close scrutiny of the language employed
\nin s.  14, it  would appear that the statute contains a two-
\nfold bar-(1)  that publication\tof any\tevidence  cannot  be
\ngiven, and (2) that public should be excluded from attending
\nthe  hearing   of  the\t proceedings.  The  learned  counsel
\nappearing for  the respondent  submitted that s. 14 does not
\nin any\tway deprive the valuable right of the accused to get
\ncopies of  the statements  of witnesses\t recorded during the
\ncommitment inquiry  or the  documents or statements recorded
\nby the\tpolice which  is a  statutory right conferred on the
\naccused\t under\tthe  Code  of  Criminal\t Procedure  and\t the
\nCriminal rules framed thereunder by various High Courts. All
\nthat s.\t 14 prohibits  is that\tthe public  be excluded from
\nattending the  hearings of the inquiry. Since the Magistrate
\nhad already acceded to this prayer of the accused, there was
\nnothing more that could be done by him.\n<\/p>\n
666<\/span><\/p>\n
     It appears\t that  the  Calcutta  High  Court  has\tbeen
\nconsistently taking  the view  as adumbrated  by the learned
\ncounsel for  the appellant,  viz.,  that  the  court  has  a
\ndiscretion under  s. 14\t of the\t Act not  only to  hold\t the
\nproceedings in\tcamera by  excluding the public but also has
\nthe discretion to prohibit publication of any evidence given
\nin the course of the proceedings.\n<\/p>\n
     In Ramendra  Singh v. Mohit Choudhary & Ors. a Division
\nBench of  the Calcutta\tHigh Court  went to  the  extent  of
\nholding that  the Act  prescribes a  special procedure\tand,
\ntherefore, overrides  the procedure  for trial under s. 251A
\nor 252\tof the\tCode of Criminal Procedure as amended by the
\nAct of\t1955. In this connection, the High Court observed as
\nfollows:-\n<\/p>\n
\t  “The prosecution is under the Official Secrets Act
\n     and it  is unlikely  that the Legislature would provide
\n     for a  camera trial  and at  the same  time provide for
\n     giving copies of all documents under section 173 to the
\n     accused. This  strikes at\tthe root of secrecy and goes
\n     counter to\t the provisions\t of trial in camera and this
\n     is\t why   the  Legislature\t  purposely  used  the\tword
\n     ‘complaint’  and\tprovided  for  a  special  procedure
\n     regarding cognizance.  This view finds support from the
\n     provisions of  Section 14\tof  the\t Act  providing\t for
\n     camera trial.\n<\/p><\/blockquote>\n
\t  The Official\tSecrets Act  provides for  a special
\n     procedure of  complaint and  if it was upon a complaint
\n     by a  person authorised  under the\t Act, cognizance was
\n     taken under  Section 190(1)  (a) and  not under Section
\n     190(1) (b). The procedure for trial would therefore, be
\n     under Section 252 of the Code of Criminal Procedure and
\n     not under Section 251A. In respect of prosecution under
\n     Section 252  of the Code of Criminal Procedure there is
\n     no compulsory  provision for giving copies of documents
\n     referred to  under Section 173 and the opposite parties
\n     are not, therefore, entitled to copies as of right.”<\/p><\/blockquote>\n
     The  decision   under  appeal   follows  the  aforesaid
\ndecision and has taken the same view. In a later decision in
\nIn Re  Anthony Allen  Fletcher v.  State, the  Calcutta High
\nCourt seems  to have  struck a\tslightly different  note. In
\nthat case,  the court  was considering\tthe question of bail
\nand the\t exclusion of  the public from attending the hearing
\nof the case, where the following observations were made:\n<\/p>\n
667<\/span><\/p>\n
\t  “On a\t Consideration\tof  the\t provisions  of\t the
\n     Statute  as   also\t the   imprimatur  of  the  judicial
\n     decisions, we  ultimately hold  that  in  view  of\t the
\n     specific provisions  contained in\tSection\t 14  of\t the
\n     Official Secrets  Act, 1923  when it reasonably appears
\n     to the Court that a trial eatiis apertis would have the
\n     risk of  any publication of any evidence to be given or
\n     any statements  to be made in course of the proceedings
\n     would be  prejudicial to  the safety  of the State, the
\n     Court in  exercise of  its discretion  can exclude\t the
\n     public from  such proceedings and that this power is in
\n     addition to  the inherent\tpower exercised by the Court
\n     to do justice.”<\/p><\/blockquote>\n
     It may be noticed that the High Court did not go to the
\nextreme of  holding that  even the  statements\tor  evidence
\nrecorded by  the Magistrate in the course of the proceedings
\nwould have  to be excluded under s. 14. All that was held by
\nthe High  Court was  that the  Court  has  a  discretion  to
\nexclude the  public from the proceedings and that this power
\nof exclusion  was available  to the  court  apart  from\t the
\ninherent power\twhich every  Court possessed in this matter.
\nWith due  respect we  find ourselves  in agreement  with the
\nview taken  by the  Calcutta High  Court in  Fletcher’s case
\n(supra) as  mentioned  above.  However,\t we  find  ourselves
\nunable to agree with the view taken by the High Court in the
\njudgment under\tappeal for  the reasons\t that we  shall give
\nhereafter.\n<\/p>\n
     We might  also mention  that s.  14 was  interpreted by
\nthis Court  in Naresh  Shridhar Mirajkar  & Ors. v. State of
\nMaharashtra &  Anr.,<\/a> where this Court while dealing with the
\nquestion  of  holding  proceedings  in\tcamera\tobserved  as
\nfollows:-\n<\/p>\n
\t  “Having thus\tenunciated the\tuniversally accepted
\n     proposition in  favour of\topen trials, it is necessary
\n     to consider  whether this rule admits of any exceptions
\n     or not.  Cases may\t occur where  the requirement of the
\n     administration of\tjustice itself may make it necessary
\n     for  the  court  to  hold\ta  trial  in  camera.  While
\n     emphasising the  importance of  public trial, we cannot
\n     overlook the  fact that  the primary  function  of\t the
\n     Judiciary is  to do  justice between  the\tparties\t who
\n     bring their  causes before it. If a Judge trying a case
\n     is satisfied  that the very purpose of finding truth in
\n     the  case\twould  be  retarded,  or  even\tdefeated  if
\n     witnesses are  required to\t give  evidence\t subject  to
\n     public gaze  is it or is it not open to him in exercise
\n     of his  inherent power  to hold  the  trial  in  camera
\n     either partly or fully? ……..That is why we
\n668<\/span>
\n     feel no  hesitation in  holding that the High Court has
\n     inherent jurisdiction  to hold a trial in camera if the
\n     ends of  justice clearly  and necessarily\trequire\t the
\n     adoption  of   such  a   course…..  It  is  the\tfair
\n     administration of\tjustice which is the end of judicial
\n     process, and so, if ever a real conflict arises between
\n     fair administration  of justice itself on the one hand,
\n     and public trial on the other, inevitably, public trial
\n     may have  to be regulated or controlled in the interest
\n     of administration of justice.”<\/p><\/blockquote>\n
     While interpreting\t the scope  and ambit  of s. 14 this
\nCourt in  Naresh Shridhar Mirajkars case (supra) observed as
\nfollows:-\n<\/p>\n
\t  “It would  be noticed that while making a specific
\n     provision authorising  the court  to exclude all or any
\n     portion of\t the public  from a  trial, s.\t14 in  terms
\n     recognises the existence of such inherent powers by its
\n     opening clause.”<\/p><\/blockquote>\n
     It may  be pertinent  to note that while this Court was
\nfully alive  to the  contents of s. 14, it neither held that
\nthe opening  part of  the section amounted to a non obstante
\nclause nor  that the section in any way deprived the accused
\nof  the\t right\tof  getting  copies  of\t the  statements  of
\nwitnesses recorded by the court or before the police. In the
\naforesaid case,\t the Supreme  Court  was  concerned  with  a
\ndefamation case\t but the  observations made  by\t this  Court
\nfully apply  to the  facts of  the present  case also on the
\nview that  we take  on the  scope and  ambit of s. 14 of the
\nAct.\n<\/p>\n
     There can be no doubt that an open trial held in public
\nis the\tgeneral rule and seems to be the very concomitant of
\na fair\tand reasonable trial, yet the public can be excluded
\nfrom the  hearings of  the trial  and the proceedings can be
\nheld in\t camera only under very exceptional circumstances as
\npointed out  by this Court in the aforesaid case. This being
\nthe position,  section 14  must be interpreted so as to fall
\nin line with the observations made and the test laid down by
\nthis Court  regarding the doctrine of holding proceedings in
\ncamera. A  close and  careful scrutiny of s. 14 would itself
\nclearly show  that the section does not contemplate the type
\nof exclusion that the High Court seems to think.\n<\/p>\n
     It is true that offences under the Act are very serious
\noffences and  maintenance of  secrecy is of the very essence
\nof the\tmatter but  that by  itself  will  not\tjustify\t the
\nlegislature to\tpass an\t Act so\t as to deprive an accused of
\nthe valuable  right to\tdefend or  for that matter to stifle
\nthe defence  itself. The  importance  of  holding  trial  in
\ncamera in  cases under\tthe Official  Secrets Act  has\tbeen
\nemphasised in R.V. Socialist
\n669<\/span>
\nWorker Printers\t and Publishers\t Ltd.  &  Anr.,\t where\tLord
\nWidgery, C. J., observed as follows:-\n<\/p>\n
\t  “When one  has an  order for\ttrial in camera, all
\n     the public\t and all  the press  are evicted at one fell
\n     swoop and\tthe entire  supervision\t by  the  public  is
\n     gone.. The\t actual conduct of the trial, the success or
\n     otherwise of  the defendant, does not turn on this kind
\n     of\t thing,\t and  very  often  the\tonly  value  of\t the
\n     witness’s name  being given  as  opposed  to  it  being
\n     withheld is  that if  it is  published up\tand down the
\n     country other witnesses may discover that they can help
\n     in regard to the case and come forward.”<\/p><\/blockquote>\n
     With this\tbackground we  shall now  proceed to examine
\nthe language  of section  14 of\t the Act itself which may be
\nextracted thus:-\n<\/p>\n
     “14. Exclusion of public from proceedings.
\n\t  In addition  and without  prejudice to  any powers
\n     which a Court may possess to order the exclusion of the
\n     public from  any  proceedings  if,\t in  the  course  of
\n     proceedings before\t a Court  against any  person for an
\n     offence under this Act or the proceedings on appeal, or
\n     in the  course of the trial of a person under this Act,
\n     application is  made by  the prosecution, on the ground
\n     that the  publication of any evidence to be given or of
\n     any  statement   to  be  made  in\tthe  course  of\t the
\n     proceedings would\tbe prejudicial\tto the safety of the
\n     State, that  all or  any portion of the public shall be
\n     excluded during  any part of the hearing, the Court may
\n     make an  order to\tthat  effect,  but  the\t passing  of
\n     sentence shall in any case take place in public.”<\/p><\/blockquote>\n
     To begin  with,  the  opening  words  of  the  section,
\nnamely, ‘In  addition and  without prejudice  to any  powers
\nwhich a Court may possess’ clearly reveal that the intention
\nof the\tlegislature was\t to give only an enabling additional
\npower to  the court  regarding holding\tthe  proceedings  in
\ncamera. In  other words, the legislature never intended that
\nthe inherent  powers possessed\tby the\tcourt  to  hold\t the
\nproceeding in  camera in  suitable cases would be in any way
\naffected by  section 14 but the intention was merely to give
\nan additional power to strengthen the hands of the court for
\nholding the  proceedings in  camera where the necessities of
\nthe situation  demanded. Thus,\tto begin with, section 14 is
\nmerely\tan   enabling  and  not\t a  barring  provision.\t Mr.
\nMukherjee argued  that the  opening  words  of\tsection\t 14,
\nreferred to  above, really  amount to  a non-obstante clause
\noverriding the provisions
\n670<\/span>
\nof all Acts including the Code of Criminal Procedure and the
\nmode of\t trial contemplated  by s.  14 would take precedence
\nover the  mode of  trial provided  by s.  251A or 252 of the
\nCode of Criminal Procedure. We are, however, unable to agree
\nwith this extreme argument which in fact overstates the law.
\nIt is  well settled that a non-obstante clause has doubtless
\nthe effect  of overriding  the provisions of a law or of the
\nlaw in\twhich  the  said  clause  is  inserted.\t Sarathi  in
\n‘Interpretation of  Statutes’ defines  a non-obstante clause
\nthus:-\n<\/p>\n
\t  “A  section\tsometimes  begins  with\t the  phrase
\n     ‘notwithstanding  anything\t  contained  etc.’.  Such  a
\n     clause is\tcalled a non-obstante clause and its general
\n     purpose is\t to give the provision contained in the non-
\n     obstante clause  an overriding effect in the event of a
\n     conflict between it and the rest of the Section.”
\n     In Aswini\tKumar Ghosh  & Anr.  v. Arabinda Bose & Anr.\n<\/p><\/blockquote>\n
Sastri, C.J.,  held  that  the\tnon-obstante  clause  cannot
\nreasonably be  read as\toverriding anything contained in any
\nrelevant existing  law which  is inconsistent  with the\t new
\nenactment.   These   are   the\t well\tsettled\t  rules\t  of
\ninterpretation of  a non-obstante  clause. Normally,  a non-
\nobstante clause is always expressed in a negative form, that
\nis to  say, by\tusing the  words  ‘notwithstanding  anything
\ncontained’ or  ‘anything contained  in a  previous law shall
\nnot affect the provisions of a particular Act’ and so on. In
\nthe  instant  case,  the  words\t ‘in  addition\tand  without
\nprejudice to  any powers  cannot be  construed to  be a\t non
\nobstante clause at all so as to override other provisions of
\nthe Act or those of the Code of Criminal Procedure. In these
\ncircumstances, therefore, the argument of Mr. Mukherjee that
\nthe opening  words of  s. 14 amount to a non-obstante clause
\ncannot be  accepted on\ta simple and plain interpretation of
\nthe opening part of section 14.\n<\/p>\n
     This takes\t us to the substantive portion of the Act on
\nwhich reliance\twas placed  both by Mr. Mukherjee and by the
\nHigh Court so as to hold that the section not only conferred
\npowers on  a court for holding the proceedings in camera but
\nalso to\t exclude publication  of any evidence which includes
\nthe right  of the  accused to  get copies  of the statements
\nrecorded during\t police investigation  or during the inquiry
\nor during trial. With great respect to the learned Judges of
\nthe Calcutta  High Court,  we feel that the main part of the
\nsection has not been correctly interpreted by them. The High
\nCourt seems  to have  taken  for  granted  that\t section  14
\nconsists of  two separate  parts, one, providing for a trial
\nin camera, and the other prohibiting publication of
\n671<\/span>
\nevidence. By  the expression  ‘publication of  evidence’  is
\nmeant, according  to the High Court, the power to deprive an
\naccused of  the right to get copies of the evidence recorded
\nby the\tcourt or  the statements  recorded during the police
\ninvestigation. We might mention here that as s. 13(3) of the
\nAct clearly  provides that no court shall take cognizance of
\nany offence under the Act except upon a complaint made by or
\nunder  the   authority\tof  the\t Government  or\t any  person
\nempowered by  it, it is manifest that s. 251A of the Code of
\nCriminal Procedure,  as amended by the Act of 1955, will not
\napply because  the present  case was  not  instituted  on  a
\npolice report  but on  the basis  of  a\t complaint.  As\t the
\noccurrence  had\t  taken\t place\tbefore\tthe  Code  of  1973,
\ntherefore, the\tprovisions of  s. 207  of the  Code of\t1973
\nwould not apply to the present case.\n<\/p>\n
     The question, however, is: does the first part of s. 14
\nempower the  court to  take away  the valuable\tright of  an
\naccused of  getting copies of the statements recorded by the
\nMagistrate before  the Court  ? Even before the amending Act
\nof 1955,  under the  criminal rules  framed by\tvarious High
\nCourts, an  accused was\t undoubtedly entitled to have copies
\nof the\tstatements of witnesses recorded by the police. This
\nis  a\tvery  valuable\tright  because\twithout\t having\t the
\nstatements recorded  by the  police in\this  possession,  it
\nwould be  difficult, if\t not impossible,  for an  accused to
\ndefend himself\teffectively. It\t is well settled that fouler
\nthe crime  the higher  should be the proof. If an accused is
\nnot supplied either the statements recorded by the police or
\nthe statement  of witnesses  recorded at  the inquiry or the
\ntrial, how  can he  possibly defend himself and instruct his
\nlawyer\tto  cross-examine  the\twitnesses  successfully\t and
\neffectively so\tas to  disprove the  prosecution  case.\t We,
\ntherefore, think  that s.  14 could  never have\t intended to
\ntake away or deprive an accused of this valuable right which
\nhas been  conferred on\thim by the criminal law of the land.
\nThe legislature\t when it passed the Act in 1923 was aware of
\nthe provisions\tof the\tCode of Criminal Procedure which had
\nconferred the  valuable right  on an  accused  in  order  to
\ndefend himself.\t Indeed, if  any of  these rights were to be
\ntaken away,  we should\thave expected  a  clearer  and\tmore
\nspecific language  used in  section 14\tto connote  such  an
\nintention. Our\treading of  s. 14  is merely  this: that the
\nfirst part  of the  section does  not  prohibit\t or  exclude
\ngiving to  an accused  copies of the statements of witnesses
\neither during  police  investigation  or  in  court  but  is
\nmentioned merely  as a\tmotive or  reason  for\tholding\t the
\nproceedings in\tcamera. The  entire sentence  starting\tfrom
\n‘application is\t made by the prosecution, on the ground that
\nthe publication\t of any\t evidence to  be  given\t or  of\t any
\nstatement to  be made in the course of the proceedings would
\nbe prejudicial\tto the\tsafety of the State, that all or any
\nportion of the
\n672<\/span>
\npublic shall be excluded during any part of the hearing’ has
\nto be read conjunctively as one composite sentence and there
\nis no  warrant for  truncating it  into two  separate  parts
\ndealing\t with\tdifferent   subject   matters.\t The   words
\n‘publication of any evidence’ on which great stress has been
\nlaid by\t Mr. Mukherjee\tand the\t High Court  do not indicate
\nthat the  accused  should  not\tbe  allowed  access  to\t the
\nevidence recorded by the court, are merely made to highlight
\nthe ground  for holding the proceedings in camera because if
\npublic are  allowed to\tbe present  during the\thearing\t the
\nevidence which\tis recorded in their presence it will amount
\nto publication\tand it\tis in that sense alone that the word
\n‘publication’ has been used in section 14.\n<\/p>\n
     Indeed, if\t the interpretation put by the High Court or
\nby Mr.\tMukherjee is accepted then the provisions of section
\n14 will\t have to  be struck down as being violative of Arts.
\n14 and 21 of the Constitution of India.\n<\/p>\n
     This Court\t has now  widened the horizon of the concept
\nof liberty,  as contained  in Art. 21 so as to give the word
\n‘procedure’ a  very wide  connotation. In  Maneka Gandhi  v.
\nUnion of  India<\/a> while  detailing the  attributes of  a\tfair
\ntrial as  contemplated in  Art. 21  this Court\tobserved  as
\nfollows:-\n<\/p>\n
\t  “The principle of reasonableness, which legally as
\n     well as  philosophically, is  an essential\t element  of
\n     equality or  non arbitrariness pervades Article 14 like
\n     a brooding\t omnipresence and the procedure contemplated
\n     by Article 21 must answer the best of reasonableness in
\n     order to  be in  conformity with Article 14. It must be
\n     “right and\t just and  fair” and not arbitrary, fanciful
\n     or oppressive;  otherwise, it  would be no procedure at
\n     all and  the requirement  of Article  21 would  not  be
\n     satisfied.”<\/p><\/blockquote>\n
     Thus,  if\twe  hold  that\ts.  14\tby  using  the\tword
\n‘publication’ deprives\tan accused  of getting any copies of
\nthe statement  of witnesses  or of the judgment under s. 548
\nof the\tCode of Criminal Procedure or Criminal Rules 308 and
\n310 framed  by the  Calcutta High  Court, then\tit would  be
\ndifficult to  uphold the  constitutional validity  of s.  14
\nbecause\t then\tthe   procedure\t  would\t  become   extremely
\nunreasonable harsh  and prejudicial  to\t the  accused  as  a
\nresult of  which the case would have been tried according to
\na procedure  which was not in consonance with the provisions
\nof Art.\t 21 of\tthe Constitution.  This aspect of the matter
\ndoes not  appear to  have been\tconsidered by the High Court
\nperhaps because\t Maneka\t Gandhi’s  case\t (supra)  came\tmuch
\nlater.\n<\/p>\n
673<\/span><\/p>\n
     Mr. Mukherjee  submitted that if the accused is allowed
\nto have\t access to  the statements recorded by the police or
\nis given a copy of the statement recorded by the Magistrate,
\nthen it\t will amount  to publication  and will\tendanger the
\nsafety and  security of\t the country  because the accused or
\nthe lawyer  who is  defending the  accused may\tpublish\t the
\nstatements or  disclose the  same  to  other  persons.\tThis
\napprehension, in  our opinion,\tis not well founded. The Act
\nitself takes  particular care  of such\ta situation  because
\nunder the  provisions of  s. 5\tof the Act any person who is
\nfound  in   possession\tor   control  of   any\tdocument  or
\ninformation and makes it public would also be deemed to have
\ncommitted  an  offence\tunder  that  section  and  would  be
\nprosecuted and entitled to a heavy penalty. This, therefore,
\nprohibits even\tthe lawyers  from  disclosing  the  evidence
\noutside\t the   court.  So  far\tas  the\t arguments  and\t the
\ndiscussion of the evidence inside the court is concerned, so
\nlong  as  the  proceedings  are\t in  camera  the  danger  of
\npublication is completely excluded.\n<\/p>\n
     The High  Court had  been rather  bitter on  the  trial
\nMagistrate when\t it observed that he could compel the lawyer
\nto submit  his register.  The observations  made by the High
\nCourt on the conduct of the Magistrate or on the lawyer were
\nnot at\tall called for because both of them were doing their
\nduties according to law. On the view that we have taken, the
\nMagistrate was\tfully justified in not compelling the lawyer
\nto surrender his register which undoubtedly contained a part
\nof the\tprivileged communication  and even if the lawyer had
\ntaken down  the evidence  in extenso for the limited purpose
\nof using  it to\t defend the  accused  or  cross-examine\t the
\nwitnesses, he could not be prevented from doing so, nor does
\ns. 14  contemplate or  envisage such a course of action. The
\nMagistrate  also   in  declining   to  give  copies  of\t the
\nstatements concerned  to the accused, took an erroneous view
\nof s.  14 of the Act which, as we have already held, did not
\ndebar the  Magistrate from  giving copies to the accused for
\nthe purpose  of his defence. Thus, we are satisfied that the
\njudgment of  the High  Court under  appeal is vitiated by an
\nerror of  law and  it has not correctly interpreted s. 14 of
\nthe Act. Similarly the earlier decision of the Calcutta High
\nCourt in  Superintendent and  Remembrancer of Legal Affairs,
\nWest Bengal  v. Satyen\tBhowmik &  Ors.<\/a> cannot be held to be
\ngood law and must be overruled.\n<\/p>\n
     Thus on  an overall  consideration\t of  the  facts\t and
\ncircumstances of  the case  and a true interpretation of the
\nlanguage employed  in  s.  14  of  the\tAct,  we  reach\t the
\nfollowing conclusions:-\n<\/p>\n
\t  1.   That s.\t14 apart  from\tproviding  that\t the
\n\t       proceedings of  the  Court  may\tbe  held  in
\n\t       camera under the circumstances men-\n<\/p><\/blockquote>\n
674<\/span><\/p>\n
\t       tioned in  the Section,\tdoes not  in any way
\n\t       affect or  override  the\t provisions  of\t the
\n\t       Criminal Procedure Code relating to enquiries
\n\t       or trials held thereunder.\n<\/p><\/blockquote>\n
\t  2.   That s.\t14 does\t not in\t any way deprive the
\n\t       valuable rights\tof the accused to get copies
\n\t       of the  statement recorded  by the Magistrate
\n\t       or statements  of witnesses  recorded by\t the
\n\t       police the  documents obtained  by the Police
\n\t       during  the  investigation  as  envisaged  by
\n\t       criminal Rules  308 and\t310 framed under the
\n\t       Code of\tCriminal Procedure  by various\tHigh
\n\t       Courts nor  does s.  14 in any way affect the
\n\t       right of\t the accused  to get copies under s.
\n\t       548 of the Code of Criminal Procedure.\n<\/p><\/blockquote>\n
\t  3.   That the opening words of s. 14 do not amount
\n\t       to a  non obstante  clause but  are merely in
\n\t       the nature of an enabling provision reserving
\n\t       the inherent  powers of\tthe Court to exclude
\n\t       the public  from the proceedings if the Court
\n\t       is  of  the  opinion  that  it  is  just\t and
\n\t       expedient to do so.\n<\/p><\/blockquote>\n
\t  4.   That there  was absolutely  no impropriety on
\n\t       the power  of the  Magistrate in\t not  taking
\n\t       action against  the defence  lawyer  for\t his
\n\t       refusal to  show\t his  register\tbecause\t the
\n\t       lawyer had rightly claimed privilege under s.
\n\t       126 of  the  Evidence  Act  as  the  register
\n\t       contained instructions  given by\t the  client
\n\t       which being privileged could not be disclosed
\n\t       to the  Court. On  a parity  of reasoning  we
\n\t       find no\timpropriety on\tthe conduct  of\t the
\n\t       lawyer in  refusing to  show the statement of
\n\t       witnesses recorded by the Court in extenso in
\n\t       order to\t prepare himself  for  an  effective
\n\t       cross-examination of the witnesses. Hence the
\n\t       strictures passed  by the  High Court  on the
\n\t       Magistrate as  also  on\tthe  lawyer  of\t the
\n\t       defence\twere,\tin  our\t  opinion,   totally
\n\t       unwarranted.\n<\/p><\/blockquote>\n
\t  5.   That if the lawyer of the defence or staff of
\n\t       the Court  or any  one who  was not  excluded
\n\t       from the hearing of the case made any attempt
\n\t       to disclose  the contents of the documents or
\n\t       the  statements\tof  the\t witnesses,  exposed
\n\t       himself to a prosecution on a charge under s.
\n\t       5 of the Act.<\/p><\/blockquote>\n
     For the  reasons given  above, we\toverrule the view of
\nthe High  Court and the reasons given therefor that s. 14 of
\nthe Act\t prohibits the\tgiving of  copies of  the  statement
\nconcerned to  the accused  or that  the lawyer is prohibited
\nfrom taking the statements in extenso and had a duty to show
\nthe same  to the  court. We  also overrule the view taken by
\nthe High  Court regarding the interpretation of s. 14 of the
\nAct.\n<\/p>\n
675<\/span><\/p>\n
We do  not agree with the High Court that the case should be
\ntried by  some other  Magistrate but  as  lot  of  time\t has
\nelapsed, surely the Magistrate against whose orders revision
\nwas taken  to the  High Court  must have been transferred by
\nthis time.  Therefore, the case will now be inquired into by
\na  Magistrate\twho  is\t  available  in\t the  light  of\t the
\nobservations  made   by\t us.   The  appeal  is\tdisposed  of
\naccordingly.\n<\/p>\n
N.K.A.\n<\/p>\n
676<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Superintendent & Remembrancer Of … vs Satyen Bhowmick And Ors on 15 January, 1981 Equivalent citations: 1981 AIR 917, 1981 SCR (2) 661 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: SUPERINTENDENT & REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL Vs. RESPONDENT: SATYEN BHOWMICK AND ORS. DATE OF JUDGMENT15\/01\/1981 BENCH: FAZALALI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-50119","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSuperintendent & Remembrancer Of ... vs Satyen Bhowmick And Ors on 15 January, 1981 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/superintendent-remembrancer-of-vs-satyen-bhowmick-and-ors-on-15-january-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Superintendent & Remembrancer Of ... vs Satyen Bhowmick And Ors on 15 January, 1981 - 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