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PETITIONER: DR. BUDDHI KOTA SUBBARAO

       Vs.

RESPONDENT: MR. K. PARASARAN & ORS.

DATE OF JUDGMENT:       13/08/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) THOMAS K.T. (J)

CITATION:  JT 1996 (7)   265        1996 SCALE  (5)797

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      DR. ANAND, J.      We have  heard the applicant who has appeared in person at length.      The applicant took voluntary retirement from the Indian Navy while  holding the  rank of  a Captain on 27th October, 1987. While  on his  way to  USA on  May 30,  1988,  he  was detained at  the Sahar  International Airport,  Bombay.  His suitcase was  taken away  from him  and he  was taken to the Sahar police  station and  locked up.  He was  alleged to be carrying atomic and defence secrets with him. His successive applications for  release  on  bail  were  rejected  by  the Metropolitan Magistrate,  the  Sessions  Court  and  by  the Bombay High  Court. An  order granting  him bail on "medical grounds"  was  cancelled  by  this  Court.  After  obtaining consent of  the  then  Attorney  General  of  India,  Mr  K. Parasaran (respondent  No. 1  herein) under Section 26(2) of the Atomic Energy Act, 1962 and authorisation from the Chief Vigilance Officer of the Department of Atomic Energy Mr S.K. Bhandarkar (respondent  No 2  herein) for proceeding against the applicant  and prosecuting  him for the various offences alleged  against   him  he  was  committed  by  the  learned committing Magistrate  to stand  his trial  in the  court of Sessions. Charges  for offences including the offences under section 3/6  Official Secrets  Act and Sections 18/19 of the Atomic Energy Act, 1962 were framed against him. Against the order for  framing of  charges, the applicant unsuccessfully approached  the   Bombay   High   Court   through   revision application  No.96/89.  The  applicant  thereafter  filed  a criminal writ  petition in  the High  Court once again inter alia calling  in question  the order  for framing of charges and during  the pendency  of the  writ petition,  he filed a criminal miscellaneous  petition  in  the  High  court  also alleging that  the charges  against  him  were  vitiated  by ’fraud’  on  the  basis  of  the  allegations  made  in  the application,  committed   by  the   State  and   the  Public

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Prosecutor. While  matters rested  thus, on  26.4  1991  the learned Sessions  Judge trying  the  case,  found  that  the prosecution had  not obtained  any sanction to prosecute the applicant and  concluded that  in the  absence  of  sanction under Section  197   Cr. C.P.C.  the trial  was vitiated and accordingly discharged the applicant The High Court while considering the  criminal revision  petition  filed  by  the State against  the order  of discharge declined to interfere hut found that since the case had travelled beyond the stage cf Section 227/228 Cr.P.C. an order of acquittal and not one of discharge  was warranted  and  converting  the  order  of discharge into an order of acquittal, dismissed the petition filed by  the State  on 12.10.1991.  Though, technically the criminal writ  petition filed by the applicant had thus been rendered  infructuous,   a  learned   Single  Judge,   after dismissal of the revision petition filed by the State, heard the writ petition and the miscellaneous petition and made an order  passing  strictures  against  the  State  and  Public Prosecutor virtually  accepting various  pleas raised by the applicant alleging  commission of  ’frauds  by  the  special prosecutor and  the State The State of Maharashtra aggrieved by that  order of  the High  Court,  filed  SLP  (Crl.)  No. 4178/91 (criminal  appeal No. 275 of 1993) in this Court. On March 16,1993,  a Bench of this Court allowed the appeal and set aside  the order dated 28.10.1991 passed in the criminal miscellaneous petition  and the  criminal writ  petition and directed that  in view  of the  order of  discharge made  in favour of  the applicant  by the  trial court, criminal writ petition would  stand dismissed  as infructuous. The remarks made by  the learned  Single Judge of the High Court against the State and the Public Prosecutor were also directed to be expunged. This Court expressed its disapproval of the manner in which the High Court had proceeded with the case.      The order  of discharge  made by  the learned  Sessions Judge and confirmed by the High Court also challenged by the State through  SLP (Crl ) 996/92 (criminal appeal appeal No. 276/93). A Division Bench of this Court dismissed the appeal against the  order of  discharge  of  the  applicants  being criminal appeal No. 276 of 1993. This Court, however, opined that the  order of  discharge made  by the  trial court  was sound and that the High Court fill in error in converting it into an  order of  acquittal. The  order  of  acquittal  was consequently converted  into  an  order  of  discharge.  The applicant was  awarded costs  of Rs.  25,000/-  taking  into consideration  the   mental  suffering  and  financial  loss suffered by him. While dismissing the appeal it was observed that since  the appeal  fails for  non-compliance of Section 197 and  the order  discharging the accused has to be upheld we do  not propose  to examine  the finding if authorisation under O.S Act and A.E Act to prosecute the accused was valid or not."  It  transpires  from  the  record  that  a  review petition filed  by the  applicant  inter-alia  to  invite  a finding on  the validity   of  consent and  authorisation to prosecute him  and against  the order ‘findings’ as recorded by this Court has also been since dismissed by this Court.      In criminal  appeal No. 277 of 1993, arising out of SLP (Crl.) No.  987/92, this  Court set  aside the  order of the High  Court  dated  14th  October,  1991  made  in  criminal miscellaneous  application  No.  2260  of  1991.  The  short question which  was considered  by this Court in that appeal was whether  the High  Court was  justified in  allowing the application filed  by the  respondent for declaring that the charges framed  by the Additional Sessions Judge against him by the  order dated  24-27th July,  1990 were null and void" and obtained  by ’fraud"  practised by  the  State  and  the

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public  prosecutor.   While  elaborately  dealing  with  the submissions made at the bar, this Court observed:      "Merits   or   otherwise   of   the      application, alleging fraud against      the State,  apart, what has left us      completely surprised is not so much      the entertaining of the application      filed   by    the    accused    for      declaration that the charges framed      against  him  were  nullity  having      been  procured   by  fraud  as  the      procedure adopted  by  the  learned      Single Judge of granting the prayer      merely for  failure of the State to      file any  reply by  way of  counter      affidavit  than  by  recording  any      finding that  the State  was guilty      of procuring  the order framing the      charges  by   fraud.  One   of  the      objections raised  by the State was      that since  the High  Court by  its      order passed  on 25/26th March 1991      in Criminal  Writ Petition  No. 966      of 1990  had specifically held that      the question  of framing charge had      become final,  therefore, it  could      not be re-opened, cannot be said to      be   without   substance   as   the      Division  Bench  had  clearly  held      that it  was not open to go  behind      the order  passed  by  the  learned      Single Judge  on 3rd/4th April 1990      directing  that   the  charges   be      framed against the accused not only      under Section 3 but under Section 5      as well.  Nor can  any exception be      taken to  the finding  of the Bench      that the  said order  could not  be      said to  have been  passed  without      jurisdiction  in  as  much  as  the      learned    Single     Judge     had      jurisdiction to decide the revision      application  preferred   under  the      provisions of  the Code.  Even  the      question of  fraud  raised  by  the      accused  was   negatived   by   the      Division Bench and it was held that      it was  not capable  of being  gone      into as it did not form part of the      substratum  of   the  case  of  the      prosecution and  was not germane to      the  question  of  deciding  as  to      whether  he   was  entitled  to  be      discharged or not."      The Court  then opined  that the  allegation  that  the framing of  charge was  procured by "fraud" was made without necessary foundation  for the  charge of  fraud having  been laid in  the  petition.  The  Bench  also  noticed  that  in paragraphs 4  to 8  (of his  application) the  applicant had culled out  sentences from  one or  the other order rendered for or against him by different courts and on that basis had claimed that  State either  knowingly did  not place correct facts to  substantiate  the  observations  made  therein  or deliberately  concealed   the  truth   and  made  fraudulent submissions thereby  inducing the  trial court  to frame the

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charges. The Bench quoted in extenso paragraphs 4,5 and 7 of the application in that behalf and observed :      "We must  confess our  inability to      appreciate  the   worth   of   such      averments to establish fraud. Legal      submissions cannot  be  equated  to      misrepresentation. In  our  opinion      the pleadings  fell short  of legal      requirements  to  establish  fraud.      Various  sentences  extracted  from      different  judgments   between  the      accused  and   State   in   various      proceedings could  not give rise to      an inference  either in law or fact      that the State was guilty of fraud.      Suffice  it  to  say  that  it  was      complete   misapprehension    under      which the accused was labouring and      it was  indeed unfortunate that the      High  Court  not  only  entertained      such  application   but  adopted  a      course which  amounted to reviewing      and setting  aside  orders  of  his      predecessor   without    sufficient      material and  accept the claim that      all earlier  judgments were  liable      to be  ignored under  Section 44 of      the Evidence Act as the proceedings      were   vitiated by  fraud.  We  are      constrained to say that the learned      Judge not  only committed  an error      of  procedure  but  misapplied  the      law." (Emphasis supplied)      The appeal  filed by  the State (criminal appeal 277/93 arising out  of  SLP  (Crl.)  No.  987/92)  was  allowed  on 16.3.1993 and the order made by the High Court on 14.10.1991 in Criminal  Miscellaneous Application  No. 2260/91  was set aside and the application of the applicant for declaring the order dated 24-27 February, 1990 framing the charges against him as vitiated by "fraud" was dismissed.      We have  referred to  the history  of the  case only to show how  the applicant has, thanks to the permissiveness of the judicial  system, filed  one petition  after another  to question the validity of the charges framed against him even after an  order of  discharge came to be made in his favour. The present  petition under Section 340 Cr. P.C. against the then Attorney  General of  India  and  the  Chief  Vigilance Officer of  the Department  of Atomic Energy also appears to be an attempt to carry on with the ’litigation’ undaunted by the orders  made by  this Court in Criminal Appeal Nos. 275- 277 of 1993 on 16.3.1993.      The main  grounds on  which this petition under Section 340 Cr. P.C. is founded are that according to the applicant, the "consent"  given by  the then  Attorney General of India (Respondent No. 1) and the ‘authorisation’ given by the then chief Vigilance  Officer  (Respondent  No.  2)  were  "false statements" as  there was,  according to  him,  no  material before either  of the two respondents, on the basis of which they could  have given  their "consent:  and ’authorisation’ for  his   prosecution.  The  applicant,  has  alleged  that respondent No.  1  without  "due  care  and  attention"  and without ‘sufficient  and proper  application of  his  mind’, made  ‘false’  statement  of  the  effect  that  the  record concerning  technical   material  placed   before  him,  had ‘satisfied’ him that the provisions of Section 18 of the

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Atomic Energy  Act 1962 were attracted against the applicant and since  the  document  dated  9.8.1988  (order  conveying consent) containing  the  said  ’false  statement’  made  by respondent No.  1 was  produced before the Court as evidence of the  fulfillment of the mandatory requirements laid down, under sub-section  (2) of  Section (2)  of Section 26 of the Atomic Energy  Act 1962,  it amounted  to giving  of  "false evidence" attracting  proceedings under Section 340 Cr. P.C. against respondent  No. 1. It is also alleged that by giving his "consent"  respondent No.1 had "created falsity" for the department  of   Atomic  Energy   to   give   its   "illegal authorisation"  on behalf of the Central Government and that these  actions   of  respondent   No.  1  also  amounted  to fabricating  "   false  evidence"   and   producing   "false documents" before  the Court.  So far as the ‘authorisation’ given by  the  Chief  Vigilance  Officer  is  concerned  the applicant  alleges   that  the   Chief   Vigilance   Officer (respondent No.  2) ‘without  due care  and attention’,  and ‘without any  authority’ had  signed and  issued letter  No. JS(B)/CVO/16/88 dated  16.8.1988 giving  ‘authorisation‘  on behalf of  the Central Government to prosecute the applicant ’in camera’ for the alleged contravention of Sections 18 and 19 of  the Atomic  Energy Act  and since the ’authorisation’ issued by  respondent No.  2 to  prosecute him was ‘illegal’ and made  ’without due care and  attention’ and ’without any authority’ respondent  No. 2  had committed  "perjury".  The applicant then  states  that  the  document  containing  the illegal ’authorisation’  issued  by  respondent  No.  2  was produced as  evidence of  the fulfillment  of the  mandatory requirement prescribed  under clause  (b) of sub-section (1) of Section  26 of  the Atomic  Energy Act,  it had  caused a "circumstance" for the Magistrate to entertain the erroneous opinion that  the bar for taking cognizance placed by clause (b) of  sub-section (1)  of Section  26  had  been  overcome thereby making  him to  take cognizance  and  issue  process against the  applicant, which  action had ’deprived the life and liberty’ of the applicant.      The appellant  also alleges  that his ’prosecution’ was ’illegal and  unjustified’ and that respondent No. 1 and No. 2 also  committed an  offence of  criminal conspiracy  under Section 120A of the Indian Penal Code. The  applicant   has  made  the  following  prayers  in  his application:      (1) That  this Hon’ble Court may be      pleased to:      (i) record  a finding  that  it  is      expedient  in   the  interests   of      justice that  an inquiry  should be      made into  the offences  punishable      under Section  193, 195 and 196 and      also Section  120B  of  the  Indian      Penal Code and the abetment thereof      which appear to have been committed      by the  respondents No.1  and No. 2      above named;      (ii) make  a complaint  thereof  in      writing; and      (iii) send  it. to  a Magistrate of      the     first      class     having      jurisdiction.      (2) That  this Hon’ble Court may be      pleased to  direct  the  Magistrate      who is to act upon the complaint of      this  Court,  that  it  during  the      inquiry it  is found that there are

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    others whose  actions or  omissions      would amount  to an of the offences      mentioned in  Section 195(1)(b)  of      the Criminal  Procedure Code or any      other offences,  to proceed against      them also according to law.      (3) That  this Hon’ble Court may be      pleased to  direct the Registrar of      the Supreme Court to take necessary      action and ensure that the sanction      under Section  197 of  the Criminal      Procedure  Code  from  the  Central      Government  is   forwarded  to  the      concerned Magistrate  to  prosecute      the respondents No. 1 and No. 2, as      per  the  complaint  made  by  this      Court  under  Section  340  of  the      Criminal Procedure Code.      Leaving out.  unnecessary and  repetitive  submissions, what can  be culled  out from  the  averments  made  by  the applicant in  the memorandum  of the present application, is that respondent  No. 1  and respondent  No 2 had given their "consent" and  "authorisation" for his prosecution on behalf of the  Central Government, "without due care and attention" and ’without  proper application  of mind’  and had  thereby given "false  evidence", and "fabricated false evidence" for use in judicial proceedings, which evidence became the basis of his prosecution.      The applicant,  it appears  to us  is  labouring  under grave misconception both of law and facts and has filed this petition unmindful of the scope of the provisions of Section 340 Cr.P.C. as will as of Sections 191, 192 and 193 IPC.  By no stretch  of imagination  on the  basis of the allegations made  in  this  application  can  it  be  said  that  either respondent No.  1 or  respondent No. 2 had ’fabricated false evidence or  had given false evidence while giving ’consent’ and ’authorisation’  as required  by law for the prosecution of the  applicant in  discharge of  their official duties. A bare look  at Sections  191 192  and 193 IPC would show that the said provisions have no application to the case. Neither Respondent No.  1 nor  Respondent No.  2 can be said to have given  ’false   evidence  while   giving  the  "consent  and "authorisation"   unless   the   expressions   ’false’   and ’fabricated are  used as an "abuse" rather than in the legal sense as  defined in  Section 191/192 IPC. How the applicant can allege  that the  recording  of  ’satisfaction"  by  the Attorney General  was a  "false statement"  defies logic and sense? The  accusation is reckless and bereft of any factual foundation. It  deserves notice that neither the trial court nor even  the High  Court in  its various orders made for or against the  applicant or  this Court while dealing with the orders arising  in  the  case  against  the,  applicant  has returned any finding even prima facie, that the ’consent’ or the ’authorisation’ given by respondents No.1 and 2 amounted to the  giving of  ’false evidence’ or ’fabricating of false evidence’. According  to the  applicant, the  ’consent’  was given by  the then  Attorney General  of India  ’without due care and  attention and  even if this submission is, for the sake of  arguments, accepted  (though there  is no basis for accepting the  same), we  are of  the opinion that it cannot lead to,  an inference  that the  document conveying consent was a  ’false document’ or that giving of ’consent’ amounted to  giving   of  ’false   evidence’  or  ’fabricating  false evidence’ at  any stage  of judicial proceeding. There is no ’prima  facie’   material  on  the  record  from  which  any

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inference may  be  drawn  that  either  Respondent  No.1  or Respondent  No.  2  gave  ’false  evidence’  in  the  Court. Considering the  submissions of  the applicant,  stripped to their  bare   essentials,  the   factual  matrix   on  which allegations have  been made against respondents Nos. 1 and 2 do not  attract the  provisions of  Sections 191, 192 or 193 IPC. The filling of the present application appears to us to be an  effort to  get ’reopened’  the case  even after  this Court  decided  criminal  appeal  No.  275-277  of  1993  on 16.3.1993 and  dismissed the  review petition also more than three years  ago. Finality  must attach  to  some  stage  of judicial proceedings. The course adopted by the applicant is impermissible and  his application is based on misconception of law  and facts.  No litigant  has a  right  to  unlimited drought on  the court  time and public money in order to get his affairs  settled in the manner as he wishes. Easy access to justice  should not  be misused  as  a  licence  to  file misconceived  or   frivolous  petitions.  After  giving  our careful consideration  to the submissions made at the bar as well  as   those  contained   in  the   memorandum  of   the application, we are of the opinion that this application is misconceived, untenable and has no merits whatsoever. It is accordingly dismissed.