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PETITIONER: SUPERINTENDENT & REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL

       Vs.

RESPONDENT: SATYEN BHOWMICK AND ORS.

DATE OF JUDGMENT15/01/1981

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1981 AIR  917            1981 SCR  (2) 661  1981 SCC  (2) 109        1981 SCALE  (1)179

ACT:      Official  Secrets   Act-Section  14-Scope   of-Advocate taking  notes   on  evidence  of  witnesses  in  respect  of proceedings held  in camera-Court,  if could prohibit taking notes-Court if  could compel  the advocate  to  produce  his notes for inspection-Advocate if could claim privilege under section 126 of Evidence Act.

HEADNOTE:      Section 14 of the Official Secrets Act provides that in addition to  and without  prejudice to  any powers  which  a Court may  possess to order the exclusion of the public from any proceedings  if, in  the course  of proceedings before a Court against  any person for an offence under this Act, the prosecution makes  an application  that publication  of  any evidence to  be given  would be prejudicial to the safety of the State.  The Court  may make  an  order  prohibiting  the publication of  evidence to  be given or of any statement to be made  in the  course of  proceedings if  it is of opinion that the  proceedings would  be prejudicial to the safety of the State.      On the  allegation that  the accused had passed on some military secrets to the enemy resulting in serious detriment to the  safety and  security of the country the accused were charge-sheeted under sections 3, 9 and 10 of the Act.      During the  commitment inquiry  the prosecution  prayed that the  accused should not be allowed to have access to or be given  copies of  statements of witnesses recorded by the Magistrate. The  defence lawyers  were allowed to take notes of the  statements of  witnesses. When  the Magistrate asked the defence lawyers to produce their note-books for perusal, they claimed privilege under section 126 of the Evidence Act on the ground that they contained certain instructions given to  them   by  the  accused  which  amounted  to  privileged communication and  that for  this reason  they could  not be looked  into   by  the  Court.  The  Magistrate  upheld  the objection.      Purporting to  follow one  of its earlier decisions the High Court  in a  revision filed  by the State held that the Magistrate should have taken legal action against the lawyer for flouting  its order  by not  producing the note-books on the ground  of privilege.  It also  held that in view of the

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provisions of  section 14  of the  Act not  only  could  the public be  excluded from the hearing but even the statements of witnesses  recorded  by  the  Court  could  not  be  made available to the accused or his counsel.      In appeal  to this  Court it  was  contended  that  the opening words  of section  14  really  amounted  to  a  non- obstante  clause  overriding  the  provisions  of  all  Acts including the  Code of  Criminal Procedure  and the  mode of trial contemplated  by section 14 would take precedence over the mode of trial provided by s. 251-A 662 or s.  252 of the Code and (2) the Magistrate could not only hold the proceedings in camera but could exclude publication of any evidence, including the right of accused to get notes of the  statements recorded  during the police investigation or during inquiry or trial. ^      HELD: The  opening words of section 14 "in addition and without prejudice  to any  powers which a Court may possess" clearly reveal  that the intention of the legislature was to give  only   an  enabling  additional  power  to  the  Court regarding  holding   of  the   proceedings  in  camera.  The legislature  never   intended  that   the  inherent   powers possessed by  the Court to hold the proceedings in camera in suitable cases  should in any way be affected by section 14. The intention  was merely  to give  an additional  power  to strengthen  the   hands  of   the  Court   for  holding  the proceedings in camera where the necessities of the situation demanded. [669F-H]      It is  well settled  that a non-obstante clause has the effect of  overriding the  provisions of a law or of the law in which  the said  clause  is  inserted.  The  non-obstante clause cannot  reasonably be  read  as  overriding  anything contained in any relevant existing law which is inconsistent with the  new enactment.  Normally a  non-obstante clause is always expressed  in a negative form i.e. by using the words "notwithstanding anything  contained" or "anything contained in previous  law  shall  not  affect  the  provisions  of  a particular Act" and so on.                                                     [670B-E]      In the  instant case the words "in addition and without prejudice to  any powers"  cannot be  construed to be a non- obstante clause at all so as to override other provisions of the Act or those of the Code of Criminal Procedure.                                                       [670E]      Aswini Kumar  Ghosh &  Anr. v.  Arabinda  Bose  &  Anr. [1953] S.C.R. 1 referred to.      Interpretation of  Statutes, Vepa  P. Sarathi, 2nd Edn. referred to.      Section 14  not only  confers powers  on  a  Court  for holding the  proceedings  in  camera  but  also  to  exclude publication of  any evidence which includes the right of the accused to  get copies  of the  statements  recorded  during police investigation  or during the inquiry or during trial. [670G]      The right  to obtain  copies of statements of witnesses recorded by  the police  is a  very valuable  right  because without having  those statements in his possession, it would be difficult  for the accused to defend himself effectively. If an accused is not supplied either the statements recorded by the police or the statements of witnesses recorded at the inquiry or  the trial  he cannot defend himself and instruct his lawyer  to cross-examine  the witnesses successfully and effectively so as to disprove the prosecution case. [671D-E]      Section 14,  therefore. could  never have  intended  to

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take away or deprive an accused of this valuable right which has been  conferred on  him by the Criminal Law of the land. The first  part of  the section does not prohibit or exclude giving to  an accused  person copies  of the  statements  of witnesses either during police investigation or in court but is mentioned  merely as  a  motive  or  reason  for  holding proceedings in  camera. The  entire sentence  starting  from "application is  made by  the prosecution on the ground that the publication  of any  evidence to  be  given  or  of  any statement to be made in the course of the 663 proceedings would be prejudicial to the safety of the State" that all  or any  portion of  the public  should be excluded during any  part of the hearing has to be read conjunctively as one  composite sentence  and  there  is  no  warrant  for truncating it into two separate parts dealing with different subject matters.  The words ’publication of any evidence’ do not indicate  that the  accused should not be allowed access to the  evidence recorded by the Court: they are merely made to highlight  the ground  for  holding  the  proceedings  in camera because  if public  are allowed  to be present during the hearing the evidence which is recorded in their presence will amount  to publication  and it  is in  that sense alone that the  word publication  has been  used  in  section  14. [671F-H]      If it  is held  that section  14,  by  using  the  word ’publication’ deprives  an accused  of getting any copies of the statement  of witnesses or of the judgment under section 548 of  the Code  of Criminal Procedure or Criminal Rules of Practice framed by the High Court then it would be difficult to uphold  the constitutional validity of section 14 because in  that   event  the   procedure  would   become  extremely unreasonable, harsh  and prejudicial  to the  accused  as  a result of  which the case would have been tried according to a procedure  which was not in consonance with the provisions of article 21 of the Constitution. [672G-H]      The apprehension that if the accused was allowed access to copies  of statements  recorded  by  the  police  or  the Magistrate it  would amount  to  publication,  is  not  well founded. Under  the provisions  of section 5 of the Act, any person who is found in possession or control of any document or information  and makes  it public would also be deemed to have committed  an offence  under that  section and would be prosecuted and  liable to  a heavy  penalty. This  prohibits even the  lawyers from  disclosing the  evidence outside the Court.                                                     [673B-C]      In the  instant case the Magistrate was fully justified in not compelling the lawyer to surrender his register which contained a part of the privileged communication and even if the lawyer  had taken  down the  evidence in extenso for the limited purpose  of using it to defend the accused or cross- examine the  witnesses, he could not be prevented from doing so, nor  does section  14 contemplate  or  envisage  such  a course of action. [673E-F]      The Superintendent  and Remembrancer  of Legal Affairs, West Bengal  v. Satyen  Bhowmik & Ors., A.I.R. 1970 Calcutta 535, overruled.      Anthony Allen  Fletcher v.  State  78  Calcutta  Weekly Notes 313 approved.      Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra JUDGMENT:

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&      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 368 of 1975      Appeal by  special leave  from the  Judgment and  Order dated 5-4-1974  of the Calcutta High Court in Crl. Revn. No. 193 of 1971.      D. N.  Mukherjee, M.  M. Kshtriya, A. K. Ganguli and G. S. Chatterjee for the appellant.      T. S. Arora for RR 1,3 to 17. 664      Uma Dutta for Respondent No. 2.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against a  judgment dated April 5, 1974 of the Calcutta High Court by  which the  order of  the trial court was set aside and the  case was remitted for fresh hearing in the light of the directions  given by  the High  Court.  The  High  Court further directed  that the Commitment Inquiry held by Mr. R. P. Roy  Chowdhury who  was the  Trial Magistrate,  should be held by some other Magistrate.      The facts  of the case lie within a very narrow compass and the central controversy turns upon the interpretation of s. 14  of  the  Official  Secrets  Act.,  1923  (hereinafter referred to  as the  ’Act’). It appears that a complaint was filed on  the 20th  March 1969  against 38  accused  persons under s.  120B of the Indian Penal Code read with sections 3 9, and  10 of  the Act. The charges against the accused were no doubt  very serious  and concerned  the security  of  the State, as  the accused persons are alleged to have passed on some military  secrets to  the enemy  resulting  in  serious detriment to  the safety and security of our country. Of the 38 accused persons named in the chargesheet, only 17 were in custody and  a commitment  inquiry into the charges was held against them by the trial Magistrate.      During  the  commitment  inquiry  the  State  filed  an application  under  s.  14  of  the  Act  praying  that  the proceedings be  held in camera and public should be excluded from  attending   the  hearings  of  the  case  because  the statements made  in the  course of  the proceedings would be prejudicial to  the safety  of the State. It was also prayed that apart  from excluding  the public  from the hearings of the proceeding,  the accused  should not  be allowed to have access to,  or be  given copies  of, the  statements of  the witnesses recorded  by  the  Magistrate  or  those  recorded earlier during  police investigation.  The Magistrate partly allowed the  application but permitted the defence lawyer to take copious  notes of  the statements of witnesses in order to  be   in  a  position  to  cross-examine  the  witnesses. Subsequently, the  Magistrate directed the lawyer to produce his notebook  so that  the Magistrate  may examine if only a summary of  the evidence had been taken by the lawyer or the statements had  been taken in extenso in which case it would amount to  publication and, therefore, would be barred by s. 14 of  the Act.  The lawyer  of the defence appearing before the Magistrate  first agreed to show his note-book but later claimed privilege  under s.  126 of  the Evidence Act on the ground that  the register  in which  he had  taken down  the notes of  the evidence  also contained  certain instructions given 665 to him  which amounted  to a  privileged  communication  and could not  be looked  into by the Court. In this view of the matter the  Magistrate found  himself helpless and proceeded with the  inquiry. As the prosecution was not satisfied with the procedure  adopted by  the Magistrate, the State filed a

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revision before  the High Court for quashing of the order of the Magistrate  in allowing  the lawyer to cross-examine the witnesses  without   impounding  the  notes  comprising  the statements of  the witnesses  taken down  in extenso  by the lawyer.      The High  Court  after  hearing  the  counsel  for  the parties  thoroughly   examined  the   entire  position   and ultimately came to a finding that the Magistrate should have taken legal  action against  the  lawyer  for  flouting  the orders of  the Court  by not  producing the  notebook on the plea of  privilege which  did not  hold any  water. The High Court was  further of  the  opinion  that  in  view  of  the provisions of  s. 14 of the Act not only could the public be excluded from  taking part  at  the  hearing  but  even  the statements of  witnesses recorded  by  the  court  or  other documents could  not be made available to the accused or his counsel nor  could copies  of the said documents be given to the accused.  In this  view of  the matter  the  High  Court quashed the order of the Magistrate and remitted the case to the trial court to be heard by some other Magistrate in view of the  directions given  by it.  Hence, this appeal to this Court.      We have  been taken  through the entire judgment of the High Court  by the  learned counsel for the parties. The two Judges who  decided the  case agreed  in the  conclusion but have given  separate reasons  for coming  to the  conclusion arrived at by them.      The only  question that  is to  be  determined  in  the present appeal  is as to the scope and ambit of s. 14 of the Act.  Mr.  Mukherjee,  appearing  for  the  State,  however, submitted that  on a close scrutiny of the language employed in s.  14, it  would appear that the statute contains a two- fold bar-(1)  that publication  of any  evidence  cannot  be given, and (2) that public should be excluded from attending the  hearing   of  the   proceedings.  The  learned  counsel appearing for  the respondent  submitted that s. 14 does not in any  way deprive the valuable right of the accused to get copies of  the statements  of witnesses  recorded during the commitment inquiry  or the  documents or statements recorded by the  police which  is a  statutory right conferred on the accused  under  the  Code  of  Criminal  Procedure  and  the Criminal rules framed thereunder by various High Courts. All that s.  14 prohibits  is that  the public  be excluded from attending the  hearings of the inquiry. Since the Magistrate had already acceded to this prayer of the accused, there was nothing more that could be done by him. 666      It appears  that  the  Calcutta  High  Court  has  been consistently taking  the view  as adumbrated  by the learned counsel for  the appellant,  viz.,  that  the  court  has  a discretion under  s. 14  of the  Act not  only to  hold  the proceedings in  camera by  excluding the public but also has the discretion to prohibit publication of any evidence given in the course of the proceedings.      In Ramendra  Singh v. Mohit Choudhary & Ors. a Division Bench of  the Calcutta  High Court  went to  the  extent  of holding that  the Act  prescribes a  special procedure  and, therefore, overrides  the procedure  for trial under s. 251A or 252  of the  Code of Criminal Procedure as amended by the Act of  1955. In this connection, the High Court observed as follows:-           "The prosecution is under the Official Secrets Act      and it  is unlikely  that the Legislature would provide      for a  camera trial  and at  the same  time provide for      giving copies of all documents under section 173 to the

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    accused. This  strikes at  the root of secrecy and goes      counter to  the provisions  of trial in camera and this      is  why   the  Legislature   purposely  used  the  word      ’complaint’  and   provided  for  a  special  procedure      regarding cognizance.  This view finds support from the      provisions of  Section 14  of  the  Act  providing  for      camera trial.           The Official  Secrets Act  provides for  a special      procedure of  complaint and  if it was upon a complaint      by a  person authorised  under the  Act, cognizance was      taken under  Section 190(1)  (a) and  not under Section      190(1) (b). The procedure for trial would therefore, be      under Section 252 of the Code of Criminal Procedure and      not under Section 251A. In respect of prosecution under      Section 252  of the Code of Criminal Procedure there is      no compulsory  provision for giving copies of documents      referred to  under Section 173 and the opposite parties      are not, therefore, entitled to copies as of right."      The  decision   under  appeal   follows  the  aforesaid decision and has taken the same view. In a later decision in In Re  Anthony Allen  Fletcher v.  State, the  Calcutta High Court seems  to have  struck a  slightly different  note. In that case,  the court  was considering  the question of bail and the  exclusion of  the public from attending the hearing of the case, where the following observations were made: 667           "On a  Consideration  of  the  provisions  of  the      Statute  as   also  the   imprimatur  of  the  judicial      decisions, we  ultimately hold  that  in  view  of  the      specific provisions  contained in  Section  14  of  the      Official Secrets  Act, 1923  when it reasonably appears      to the Court that a trial eatiis apertis would have the      risk of  any publication of any evidence to be given or      any statements  to be made in course of the proceedings      would be  prejudicial to  the safety  of the State, the      Court in  exercise of  its discretion  can exclude  the      public from  such proceedings and that this power is in      addition to  the inherent  power exercised by the Court      to do justice."      It may be noticed that the High Court did not go to the extreme of  holding that  even the  statements  or  evidence recorded by  the Magistrate in the course of the proceedings would have  to be excluded under s. 14. All that was held by the High  Court was  that the  Court  has  a  discretion  to exclude the  public from the proceedings and that this power of exclusion  was available  to the  court  apart  from  the inherent power  which every  Court possessed in this matter. With due  respect we  find ourselves  in agreement  with the view taken  by the  Calcutta High  Court in  Fletcher’s case (supra) as  mentioned  above.  However,  we  find  ourselves unable to agree with the view taken by the High Court in the judgment under  appeal for  the reasons  that we  shall give hereafter.      We might  also mention  that s.  14 was  interpreted by this Court  in Naresh  Shridhar Mirajkar  & Ors. v. State of Maharashtra &  Anr., where this Court while dealing with the question  of  holding  proceedings  in  camera  observed  as follows:-           "Having thus  enunciated the  universally accepted      proposition in  favour of  open trials, it is necessary      to consider  whether this rule admits of any exceptions      or not.  Cases may  occur where  the requirement of the      administration of  justice itself may make it necessary      for  the  court  to  hold  a  trial  in  camera.  While      emphasising the  importance of  public trial, we cannot

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    overlook the  fact that  the primary  function  of  the      Judiciary is  to do  justice between  the  parties  who      bring their  causes before it. If a Judge trying a case      is satisfied  that the very purpose of finding truth in      the  case  would  be  retarded,  or  even  defeated  if      witnesses are  required to  give  evidence  subject  to      public gaze  is it or is it not open to him in exercise      of his  inherent power  to hold  the  trial  in  camera      either partly or fully? ........That is why we 668      feel no  hesitation in  holding that the High Court has      inherent jurisdiction  to hold a trial in camera if the      ends of  justice clearly  and necessarily  require  the      adoption  of   such  a   course.....  It  is  the  fair      administration of  justice which is the end of judicial      process, and so, if ever a real conflict arises between      fair administration  of justice itself on the one hand,      and public trial on the other, inevitably, public trial      may have  to be regulated or controlled in the interest      of administration of justice."      While interpreting  the scope  and ambit  of s. 14 this Court in  Naresh Shridhar Mirajkars case (supra) observed as follows:-           "It would  be noticed that while making a specific      provision authorising  the court  to exclude all or any      portion of  the public  from a  trial, s.  14 in  terms      recognises the existence of such inherent powers by its      opening clause."      It may  be pertinent  to note that while this Court was fully alive  to the  contents of s. 14, it neither held that the opening  part of  the section amounted to a non obstante clause nor  that the section in any way deprived the accused of  the  right  of  getting  copies  of  the  statements  of witnesses recorded by the court or before the police. In the aforesaid case,  the Supreme  Court  was  concerned  with  a defamation case  but the  observations made  by  this  Court fully apply  to the  facts of  the present  case also on the view that  we take  on the  scope and  ambit of s. 14 of the Act.      There can be no doubt that an open trial held in public is the  general rule and seems to be the very concomitant of a fair  and reasonable trial, yet the public can be excluded from the  hearings of  the trial  and the proceedings can be held in  camera only under very exceptional circumstances as pointed out  by this Court in the aforesaid case. This being the position,  section 14  must be interpreted so as to fall in line with the observations made and the test laid down by this Court  regarding the doctrine of holding proceedings in camera. A  close and  careful scrutiny of s. 14 would itself clearly show  that the section does not contemplate the type of exclusion that the High Court seems to think.      It is true that offences under the Act are very serious offences and  maintenance of  secrecy is of the very essence of the  matter but  that by  itself  will  not  justify  the legislature to  pass an  Act so  as to deprive an accused of the valuable  right to  defend or  for that matter to stifle the defence  itself. The  importance  of  holding  trial  in camera in  cases under  the Official  Secrets Act  has  been emphasised in R.V. Socialist 669 Worker Printers  and Publishers  Ltd.  &  Anr.,  where  Lord Widgery, C. J., observed as follows:-           "When one  has an  order for  trial in camera, all      the public  and all  the press  are evicted at one fell      swoop and  the entire  supervision  by  the  public  is

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    gone.. The  actual conduct of the trial, the success or      otherwise of  the defendant, does not turn on this kind      of  thing,  and  very  often  the  only  value  of  the      witness’s name  being given  as  opposed  to  it  being      withheld is  that if  it is  published up  and down the      country other witnesses may discover that they can help      in regard to the case and come forward."      With this  background we  shall now  proceed to examine the language  of section  14 of  the Act itself which may be extracted thus:-      "14. Exclusion of public from proceedings.           In addition  and without  prejudice to  any powers      which a Court may possess to order the exclusion of the      public from  any  proceedings  if,  in  the  course  of      proceedings before  a Court  against any  person for an      offence under this Act or the proceedings on appeal, or      in the  course of the trial of a person under this Act,      application is  made by  the prosecution, on the ground      that the  publication of any evidence to be given or of      any  statement   to  be  made  in  the  course  of  the      proceedings would  be prejudicial  to the safety of the      State, that  all or  any portion of the public shall be      excluded during  any part of the hearing, the Court may      make an  order to  that  effect,  but  the  passing  of      sentence shall in any case take place in public."      To begin  with,  the  opening  words  of  the  section, namely, ’In  addition and  without prejudice  to any  powers which a Court may possess’ clearly reveal that the intention of the  legislature was  to give only an enabling additional power to  the court  regarding holding  the  proceedings  in camera. In  other words, the legislature never intended that the inherent  powers possessed  by the  court  to  hold  the proceeding in  camera in  suitable cases would be in any way affected by  section 14 but the intention was merely to give an additional power to strengthen the hands of the court for holding the  proceedings in  camera where the necessities of the situation  demanded. Thus,  to begin with, section 14 is merely  an   enabling  and  not  a  barring  provision.  Mr. Mukherjee argued  that the  opening  words  of  section  14, referred to  above, really  amount to  a non-obstante clause overriding the provisions 670 of all Acts including the Code of Criminal Procedure and the mode of  trial contemplated  by s.  14 would take precedence over the  mode of  trial provided  by s.  251A or 252 of the Code of Criminal Procedure. We are, however, unable to agree with this extreme argument which in fact overstates the law. It is  well settled that a non-obstante clause has doubtless the effect  of overriding  the provisions of a law or of the law in  which  the  said  clause  is  inserted.  Sarathi  in ’Interpretation of  Statutes’ defines  a non-obstante clause thus:-           "A  section   sometimes  begins  with  the  phrase      ’notwithstanding  anything   contained  etc.’.  Such  a      clause is  called a non-obstante clause and its general      purpose is  to give the provision contained in the non-      obstante clause  an overriding effect in the event of a      conflict between it and the rest of the Section."      In Aswini  Kumar Ghosh  & Anr.  v. Arabinda Bose & Anr. Sastri, C.J.,  held  that  the  non-obstante  clause  cannot reasonably be  read as  overriding anything contained in any relevant existing  law which  is inconsistent  with the  new enactment.   These   are   the   well   settled   rules   of interpretation of  a non-obstante  clause. Normally,  a non- obstante clause is always expressed in a negative form, that

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is to  say, by  using the  words  ’notwithstanding  anything contained’ or  ’anything contained  in a  previous law shall not affect the provisions of a particular Act’ and so on. In the  instant  case,  the  words  ’in  addition  and  without prejudice to  any powers  cannot be  construed to  be a  non obstante clause at all so as to override other provisions of the Act or those of the Code of Criminal Procedure. In these circumstances, therefore, the argument of Mr. Mukherjee that the opening  words of  s. 14 amount to a non-obstante clause cannot be  accepted on  a simple and plain interpretation of the opening part of section 14.      This takes  us to the substantive portion of the Act on which reliance  was placed  both by Mr. Mukherjee and by the High Court so as to hold that the section not only conferred powers on  a court for holding the proceedings in camera but also to  exclude publication  of any evidence which includes the right  of the  accused to  get copies  of the statements recorded during  police investigation  or during the inquiry or during trial. With great respect to the learned Judges of the Calcutta  High Court,  we feel that the main part of the section has not been correctly interpreted by them. The High Court seems  to have  taken  for  granted  that  section  14 consists of  two separate  parts, one, providing for a trial in camera, and the other prohibiting publication of 671 evidence. By  the expression  ’publication of  evidence’  is meant, according  to the High Court, the power to deprive an accused of  the right to get copies of the evidence recorded by the  court or  the statements  recorded during the police investigation. We might mention here that as s. 13(3) of the Act clearly  provides that no court shall take cognizance of any offence under the Act except upon a complaint made by or under  the   authority  of  the  Government  or  any  person empowered by  it, it is manifest that s. 251A of the Code of Criminal Procedure,  as amended by the Act of 1955, will not apply because  the present  case was  not  instituted  on  a police report  but on  the basis  of  a  complaint.  As  the occurrence  had   taken  place  before  the  Code  of  1973, therefore, the  provisions of  s. 207  of the  Code of  1973 would not apply to the present case.      The question, however, is: does the first part of s. 14 empower the  court to  take away  the valuable  right of  an accused of  getting copies of the statements recorded by the Magistrate before  the Court  ? Even before the amending Act of 1955,  under the  criminal rules  framed by  various High Courts, an  accused was  undoubtedly entitled to have copies of the  statements of witnesses recorded by the police. This is  a   very  valuable  right  because  without  having  the statements recorded  by the  police in  his  possession,  it would be  difficult, if  not impossible,  for an  accused to defend himself  effectively. It  is well settled that fouler the crime  the higher  should be the proof. If an accused is not supplied either the statements recorded by the police or the statement  of witnesses  recorded at  the inquiry or the trial, how  can he  possibly defend himself and instruct his lawyer  to  cross-examine  the  witnesses  successfully  and effectively so  as to  disprove the  prosecution  case.  We, therefore, think  that s.  14 could  never have  intended to take away or deprive an accused of this valuable right which has been  conferred on  him by the criminal law of the land. The legislature  when it passed the Act in 1923 was aware of the provisions  of the  Code of Criminal Procedure which had conferred the  valuable right  on an  accused  in  order  to defend himself.  Indeed, if  any of  these rights were to be taken away,  we should  have expected  a  clearer  and  more

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specific language  used in  section 14  to connote  such  an intention. Our  reading of  s. 14  is merely  this: that the first part  of the  section does  not  prohibit  or  exclude giving to  an accused  copies of the statements of witnesses either during  police  investigation  or  in  court  but  is mentioned merely  as a  motive or  reason  for  holding  the proceedings in  camera. The  entire sentence  starting  from ’application is  made by the prosecution, on the ground that the publication  of any  evidence to  be  given  or  of  any statement to  be made in the course of the proceedings would be prejudicial  to the  safety of the State, that all or any portion of the 672 public shall be excluded during any part of the hearing’ has to be read conjunctively as one composite sentence and there is no  warrant for  truncating it  into two  separate  parts dealing  with   different   subject   matters.   The   words ’publication of any evidence’ on which great stress has been laid by  Mr. Mukherjee  and the  High Court  do not indicate that the  accused  should  not  be  allowed  access  to  the evidence recorded by the court, are merely made to highlight the ground  for holding the proceedings in camera because if public are  allowed to  be present  during the  hearing  the evidence which  is recorded in their presence it will amount to publication  and it  is in that sense alone that the word ’publication’ has been used in section 14.      Indeed, if  the interpretation put by the High Court or by Mr.  Mukherjee is accepted then the provisions of section 14 will  have to  be struck down as being violative of Arts. 14 and 21 of the Constitution of India.      This Court  has now  widened the horizon of the concept of liberty,  as contained  in Art. 21 so as to give the word ’procedure’ a  very wide  connotation. In  Maneka Gandhi  v. Union of  India while  detailing the  attributes of  a  fair trial as  contemplated in  Art. 21  this Court  observed  as follows:-           "The principle of reasonableness, which legally as      well as  philosophically, is  an essential  element  of      equality or  non arbitrariness pervades Article 14 like      a brooding  omnipresence and the procedure contemplated      by Article 21 must answer the best of reasonableness in      order to  be in  conformity with Article 14. It must be      "right and  just and  fair" and not arbitrary, fanciful      or oppressive;  otherwise, it  would be no procedure at      all and  the requirement  of Article  21 would  not  be      satisfied."      Thus,  if  we  hold  that  s.  14  by  using  the  word ’publication’ deprives  an accused  of getting any copies of the statement  of witnesses  or of the judgment under s. 548 of the  Code of Criminal Procedure or Criminal Rules 308 and 310 framed  by the  Calcutta High  Court, then  it would  be difficult to  uphold the  constitutional validity  of s.  14 because  then   the   procedure   would   become   extremely unreasonable harsh  and prejudicial  to  the  accused  as  a result of  which the case would have been tried according to a procedure  which was not in consonance with the provisions of Art.  21 of  the Constitution.  This aspect of the matter does not  appear to  have been  considered by the High Court perhaps because  Maneka  Gandhi’s  case  (supra)  came  much later. 673      Mr. Mukherjee  submitted that if the accused is allowed to have  access to  the statements recorded by the police or is given a copy of the statement recorded by the Magistrate, then it  will amount  to publication  and will  endanger the

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safety and  security of  the country  because the accused or the lawyer  who is  defending the  accused may  publish  the statements or  disclose the  same  to  other  persons.  This apprehension, in  our opinion,  is not well founded. The Act itself takes  particular care  of such  a situation  because under the  provisions of  s. 5  of the Act any person who is found  in   possession  or   control  of   any  document  or information and makes it public would also be deemed to have committed  an  offence  under  that  section  and  would  be prosecuted and entitled to a heavy penalty. This, therefore, prohibits even  the lawyers  from  disclosing  the  evidence outside  the   court.  So  far  as  the  arguments  and  the discussion of the evidence inside the court is concerned, so long  as  the  proceedings  are  in  camera  the  danger  of publication is completely excluded.      The High  Court had  been rather  bitter on  the  trial Magistrate when  it observed that he could compel the lawyer to submit  his register.  The observations  made by the High Court on the conduct of the Magistrate or on the lawyer were not at  all called for because both of them were doing their duties according to law. On the view that we have taken, the Magistrate was  fully justified in not compelling the lawyer to surrender his register which undoubtedly contained a part of the  privileged communication  and even if the lawyer had taken down  the evidence  in extenso for the limited purpose of using  it to  defend the  accused  or  cross-examine  the witnesses, he could not be prevented from doing so, nor does s. 14  contemplate or  envisage such a course of action. The Magistrate  also   in  declining   to  give  copies  of  the statements concerned  to the accused, took an erroneous view of s.  14 of the Act which, as we have already held, did not debar the  Magistrate from  giving copies to the accused for the purpose  of his defence. Thus, we are satisfied that the judgment of  the High  Court under  appeal is vitiated by an error of  law and  it has not correctly interpreted s. 14 of the Act. Similarly the earlier decision of the Calcutta High Court in  Superintendent and  Remembrancer of Legal Affairs, West Bengal  v. Satyen  Bhowmik &  Ors. cannot be held to be good law and must be overruled.      Thus on  an overall  consideration  of  the  facts  and circumstances of  the case  and a true interpretation of the language employed  in  s.  14  of  the  Act,  we  reach  the following conclusions:-           1.   That s.  14 apart  from  providing  that  the                proceedings of  the  Court  may  be  held  in                camera under the circumstances men- 674                tioned in  the Section,  does not  in any way                affect or  override  the  provisions  of  the                Criminal Procedure Code relating to enquiries                or trials held thereunder.           2.   That s.  14 does  not in  any way deprive the                valuable rights  of the accused to get copies                of the  statement recorded  by the Magistrate                or statements  of witnesses  recorded by  the                police the  documents obtained  by the Police                during  the  investigation  as  envisaged  by                criminal Rules  308 and  310 framed under the                Code of  Criminal Procedure  by various  High                Courts nor  does s.  14 in any way affect the                right of  the accused  to get copies under s.                548 of the Code of Criminal Procedure.           3.   That the opening words of s. 14 do not amount                to a  non obstante  clause but  are merely in                the nature of an enabling provision reserving

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              the inherent  powers of  the Court to exclude                the public  from the proceedings if the Court                is  of  the  opinion  that  it  is  just  and                expedient to do so.           4.   That there  was absolutely  no impropriety on                the power  of the  Magistrate in  not  taking                action against  the defence  lawyer  for  his                refusal to  show  his  register  because  the                lawyer had rightly claimed privilege under s.                126 of  the  Evidence  Act  as  the  register                contained instructions  given by  the  client                which being privileged could not be disclosed                to the  Court. On  a parity  of reasoning  we                find no  impropriety on  the conduct  of  the                lawyer in  refusing to  show the statement of                witnesses recorded by the Court in extenso in                order to  prepare himself  for  an  effective                cross-examination of the witnesses. Hence the                strictures passed  by the  High Court  on the                Magistrate as  also  on  the  lawyer  of  the                defence  were,   in  our   opinion,   totally                unwarranted.           5.   That if the lawyer of the defence or staff of                the Court  or any  one who  was not  excluded                from the hearing of the case made any attempt                to disclose  the contents of the documents or                the  statements  of  the  witnesses,  exposed                himself to a prosecution on a charge under s.                5 of the Act.      For the  reasons given  above, we  overrule the view of the High  Court and the reasons given therefor that s. 14 of the Act  prohibits the  giving of  copies of  the  statement concerned to  the accused  or that  the lawyer is prohibited from taking the statements in extenso and had a duty to show the same  to the  court. We  also overrule the view taken by the High  Court regarding the interpretation of s. 14 of the Act. 675 We do  not agree with the High Court that the case should be tried by  some other  Magistrate but  as  lot  of  time  has elapsed, surely the Magistrate against whose orders revision was taken  to the  High Court  must have been transferred by this time.  Therefore, the case will now be inquired into by a  Magistrate   who  is   available  in  the  light  of  the observations  made   by  us.   The  appeal  is  disposed  of accordingly. N.K.A. 676