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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. L...I...T.......T.......T.......T.......T.......T.......T..J

   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)

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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)@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ filed  by  order  of appropriate government;  or  (b)  filed@@ JJJJJJJJJJJJJJJJJJJJ 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.

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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@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Export  (Control)  Act,  1947 which provided that  no  Court@@ JJJJJJJJJJJJJJJJJJJJJJJ 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

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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:@@                                                        JJJJJ "....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@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Government  and the courts having given the exclusion of the@@ JJJJJJJJJJJJJJJJJJJ 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

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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.