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HIGH COURT OF DELHI
JUDGMENT
CBI .....Petitioner
For the Petitioner : Mr. Anupam S Sharrma, SPP with Mr. Prakash Airan, Ms. Harpreet Kalsi, Mr. Ripudaman Sharma & Mr. Vashisht Rao, Advs.
For the Respondents : Mr. Chander M. Maini, Mr. Mayank Maini
& Mr. B.K. Wadhwa, Advs.
1. The present petition is filed against the order dated 12.12.2009 (hereafter ‘impugned order’) passed by the learned Chief Metropolitan Magistrate (‘CMM’), Tis Hazari Court, Delhi in RC 5(S)/2007/SCU.V CBI/ACU.IX under Sections 3/5 of the Official Secrets Act, 1923 and Sections 409/120B of the Indian Penal Code, 1860 (‘IPC’) whereby the learned Trial Court, in an application filed by the respondents under Section 207 of the Code of Criminal Procedure, 1973 (‘CrPC’), allowed the supply of copies of certain documents to the respondents.
2. Briefly stated, a complaint was filed with CBI seeking legal action against Respondent No. 1 under the provisions of the Official Secrets Act, 1923 on which FIR RC No. 5 (S)/2007-SIU.V dated 20.09.2007 was registered by the CBI against Respondent No. 1. It is alleged that Respondent No. 1 revealed secret information by publication of his book titled “India’s External Intelligence – Secrets of Research and Analysis Wing (RAW)”. Upon an application filed by the CBI, search warrants were issued by learned Metropolitan Magistrate on 20.09.2007 permitting CBI officers to conduct search of the premises of Respondent No.1 whereafter search was conducted and a compliance report was filed on 24.09.2007.
3. The Central Government vide order dated 07.04.2008 authorized the filing of complaint under Section 13(3) of the Official Secrets Act, 1923 whereafter a complaint was filed against the respondents under Section 13 of the Official Secrets Act. Chargesheet was filed in the present case under Sections 3/5 of the Official Secrets Act, 1923 and Section 409/120B of the IPC on 11.04.2008 with request to keep the classified documents in sealed cover. By order dated 31.01.2009, cognizance was taken by the learned CMM on the complaint for the offences under Sections 3 and 5 of the Official Secrets Act, 1923 and on the chargesheet for the offence under Section 409/120B of the IPC.
4. By the impugned order, the learned CMM allowed the application filed by the respondents under Section 207 of the CrPC and directed the petitioner to supply the documents sought by the respondents to them after moving appropriate application for desealing of the documents. However, considering the sensitive nature of the documents, the learned CMM clarified that the documents supplied to the respondents would remain in the personal custody of the counsel representing the respondents who were to ensure that the documents are not circulated in any manner.
5. The learned Special Public Prosecutor for the CBI submitted that the learned CMM erred in directing a supply of the copies of the documents to the respondents. He submitted that the learned CMM though noted that the nature of the documents is sensitive yet proceeded to allow the supply of a copy of the documents to remain in the personal custody of the counsel representing the respondents. He submitted that since the Executive had termed the documents to be ‘secret, confidential and restricted’, and the same was also noted by the learned CMM, a hard copy of those documents ought not to have been directed to be supplied to the respondents.
6. He submitted that the learned CMM relied upon the judgement of the Hon’ble Apex Court in Superintendent and Remembrancer of Legal Affairs v. Satyen Bhowmick: (1981) 2 SCC 109 and noted that Section 14 of the Official Secrets Act did not deprive the valuable right of the accused to get copies of the statements recorded by the Magistrate or the police or the documents obtained by the police during the course of investigation. He submitted that the Hon’ble Apex Court in P. Gopalkrishnan @ Dileep v. State of Kerala and Anr.: AIR 2020 SC 1 while dealing with the question pertaining to the right of the accused to obtain cloned copy of memory card/pendrive when the accused was facing prosecution for the alleged offence of rape while noting the dicta in the case of Superintendent and Remembrancer of Legal Affairs v. Satyen Bhowmick (supra) had noted that the right of the accused to adequately defend himself during the trial ought to be balanced with the right to privacy of the victim. He submitted that in the said case as well, the Hon’ble Apex Court had only allowed the inspection of the documents by the accused as opposed to providing him a copy of the documents in order to enable him to defend himself.
7. He submitted that this Court vide order dated 30.07.2004 in Crl
8. He submitted that the purpose of Section 208 of the CrPC is to provide all the necessary documents to the accused to enable the accused to prepare his defence. He submitted that the said purpose can be achieved by allowing the accused to carry out an inspection of the documents along with his advocate.
9. He relied upon the order dated 11.04.2017 passed by the Hon’ble Apex Court in CBI v. V. K. Jha & Anr.: Criminal Appeal Nos. 1631-1632 of 2009 and submitted that in the said case as well, the Hon’ble Apex Court, after considering the sensitive nature of the documents, had allowed the inspection of the documents by the accused persons to enable them to present their defence.
10. The learned counsel for the respondents submitted that the impugned order is well reasoned and warrants no interference by this Court. He submitted that merely because the case falls within the provisions of the Official Secrets Act does not by itself take away the right of the accused to get the copies of the documents and statement of witnesses recorded by the Magistrate or the police during the course of the investigation.
11. He submitted that the Hon’ble Apex Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors. (supra) reinstated the cardinal principle that the accused is entitled to have the copies of the documents/statements accompanying the chargesheet which the prosecution may use against the accused during the course of the trial.
12. He submitted that the reliance placed by the CBI on the order dated 11.04.2017 passed by the Hon’ble Apex Court in CBI v. V. K. Jha & Anr. is misconceived. He submitted that the Hon’ble Apex Court in the said case did not refer to the position of law as settled in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors. (supra) which provides that the accused is entitled to get a copy of the documents sought to be relied upon by the prosecution. He submitted that the Hon’ble Apex Court in CBI v. V. K. Jha & Anr. (supra) merely provided for an arrangement whereby the accused was allowed to inspect the documents in view of the facts and circumstances of that case. He submitted that the same does not come in the way of the right of the accused to get a copy of the documents.
13. He submitted that the reliance placed by CBI on the order dated 30.07.2004 passed by this Court in CRL. A. No. 571/2002 is misplaced and is not applicable to the facts of the present case. He submitted that in the said case, this Court when dealing with an appeal preferred by the accused, had noted that the documents were claimed to be classified and the copies of the same had not been supplied to him during the course of the trial and had consequently allowed inspection of the documents to the accused/his counsel. He submitted that in the present case however, the learned CMM vide the impugned order decided the application preferred by the respondents under Section 207 of the CrPC for supply of deficient documents and statements relied upon by the CBI. He consequently submitted that the respondents are entitled to supply of a copy of the documents. Analysis
14. The petitioner is essentially aggrieved that the documents being sensitive/classified in nature, a hard copy of such documents cannot be supplied to the respondents.
15. In that regard, it is pertinent to note that the purpose of supplying documents to the accused is to galvanise an accused person’s right to a fair trial as has been enshrined under Article 21 of the Constitution of India. Thus, the purpose of the provision is to protect the right of an accused to be provided with all the material that the prosecution proposes to rely upon in the trial [Ref. P. Gopalkrishnan v. State of Kerala (supra)]. The same is in extension of the right of the accused person to be put to notice of the material against him. For the same reason, merely because the case falls within the purview of the Official Secrets Act cannot be a ground to deprive the accused of his right to be put to notice of the material against him.
16. It is pertinent to note that in the present case, CBI has not opposed the inspection of the documents by the respondents/their counsel. It is only argued that in place of supplying the hard copies of the documents, the respondents along with their counsel be given an opportunity to inspect the documents in order to adequately defend themselves during trial. Reliance has been placed on the order dated 11.04.2017 passed by the Hon’ble Apex Court in CBI v. V. K. Jha & Anr.: Criminal Appeal Nos. 1631-1632 of 2009, in view of the sensitive nature of the documents, the Court had allowed the inspection of the documents by the accused/duly authorised counsel. It was noted as under: “However, we find that it would not be appropriate to permit the hard copies of the documents in question, to be handed over to the respondents though the respondents must be in a position to put up their defence. This can undoubtedly be done only if the respondents are aware of the contents of the documents. This poses another problem, and that is the desirability of handing over the complete documents to the respondents since the documents are said to contain official secrets and in any case, sensitive information which is said to be prejudicial to the sovereignty and integrity of India and security of the State. On the last date of hearing, we had suggested to the learned counsel appearing for the appellant to find out a via-media. Having heard learned counsel appearing for the parties, we find that the following order would meet the ends of justice: The direction to hand over the documents to the respondents shall be modified as follows: The Ministry of Defence (or persons duly authorized by them) shall black out the portions of the case documents which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States. The said copies of the scanned documents with blacked out portions will be provided to the CBI, and these documents shall be available for inspection and perusal of the accused and/or the duly authorized advocate, in both soft copies and hard copies, between 9 a.m. to 9 p.m. on all working days at the notified CBI office. This arrangement shall continue for the next three months, after which the accused and/or their duly authorized advocate shall be allowed to inspect/peruse the documents after giving due notice of 24 hours to the CBI officials. At no time shall the accused and/or their advocates be allowed to make any soft or hard copies of the said documents.”
17. Much emphasis has been placed by the learned counsel for the respondents on the fact that the accused is entitled to a supply of a copy of the documents. It has been argued that the reliance placed by the CBI on the case of CBI v. V. K. Jha & Anr. (supra) is misplaced inasmuch as the same does not refer to the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors. (supra) which reinstated that the accused is entitled to a supply of the documents.
18. Upon a consideration of the totality of facts and circumstances, this Court is of the opinion that the decision of the Hon’ble Apex Court in CBI v. V. K. Jha & Anr. (supra) does not run contrary to the dictum of the Hon’ble Apex Court in Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors. (supra). The rationale laid down in the said case was that Section 14 of the Official Secrets Act did not deprive the accused of the valuable right to defend himself in trial. For this reason, the Hon’ble Apex Court in CBI v. V. K. Jha & Anr. (supra), while taking note of the right of the accused to defend himself in trial and considering the sensitive nature of the documents, had allowed for inspection of the documents by the accused/his counsel.
19. It is pertinent to note that in the present case as well, the learned CMM, in the impugned order, noted that the documents are sensitive in nature. As noted above, CBI is not opposed to the inspection of the documents. It has only been contended that in view of the sensitive nature of the documents, a hard copy of the same be not supplied to the respondents.
20. In that light, this Court deems it expedient to allow the inspection of the documents sought by the respondents as opposed to the supply of the copies of the documents to the counsel representing the respondents.
21. In view of the above, the present petition is allowed to the extent that the impugned order is modified and the respondents along with their duly authorised counsel are permitted to inspect the documents lying with the learned Trial Court as and when required to enable the respondents to effectively defend themselves during the trial.
22. The present petition along with pending application stands disposed of in the aforesaid terms. AMIT MAHAJAN, J SEPTEMBER 19, 2025 ‘KDK’