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Shakur Ibrahim Sama v/s State of Gujarat

    Criminal Revision Application (Against Order Passed By Subordinate Court) No. 1034 of 2017

    Decided On, 09 January 2018

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE S.G. SHAH

    For the Applicant: Ashish M. Dagli, Advocate. For the Respondent: Manan Mehta, APP.



Judgment Text

1. Heard learned advocate Mr. Ashish M. Dagli for the applicant and learned APP Mr. Manan Mehta for the respondent – State.

2. The applicant herein is accused before the Sessions Court of Kutch at Bhuj in Sessions Case No.4 of 2017. He is facing charges u/s.3 of the Official Secrets Act, 1923 (‘Act’, for short), so also Sections 121, 121(A), 123, 120B, 465, 468, 471 of the Indian Penal Code (‘IPC’, for short) and Section 66(F) of the Information Technology Act. The present revision application is preferred against the order dated 7.10.2017 below Exh.21 – an application u/s.227 of the Criminal Procedure Code (‘Code’, for short) whereby the applicant has prayed to discharge him from the offences under the Act. By impugned order dated 7.10.2017, the 8th Addl.Sessions Judge (adhoc) of Bhuj at Kutch has rejected such application.

3. The sum and substance of the applicant’s case is to the effect that an FIR has been registered before ATS police station for the offences disclosed herein above against the applicant as well as one Alana Hamir alleging that both such accused, in connivance with each other, have remained in contact with ISI agent of Pakistan and thereby, created difficulties for the security of India and that information regarding border between Pakistan and India in Kutch – Bhuj so also information regarding Border Security Force was parted with to ISI agents by them. However, in FIR lodged by one Mr. V. R. Malhotra, P.I. of ATS Gujarat, it is simply disclosed that he has received a secret information to such effect and therefore, they have intercepted the applicant and panchnama of their presence was recorded and after raiding their house and taking sample of their handwriting, chargesheet was filed.

4. As against that, the applicant’s case is solely based upon legal issues inasmuch as it is contended in application as well as in revision application that for initiating trial against any person under the Act, the complaint is to be made by order of or under authority from the appropriate Government in this behalf. For the purpose, applicant is relying upon the provisions of Sub-section (3) of Section 13 of

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the Act and reproduced the same in his application.

It would be appropriate to recollect such provision, which reads as under:-

“13. Restriction on trial of offences.—

(1) No court (other than that of a Magistrate of the first class specially empowered in this behalf by the Appropriate Government) which is inferior to that of a District or Presidency Magistrate, shall try any offence under this Act.

(2) If any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed, claims to be tried by the Court of Sessions, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that court, notwithstanding that it is not a case exclusively triable by that court.

(3) 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:

(4) For the purposes of the trial of a person for an offence under this Act, the offence may be deemed to have been committed either at the place in which the same actually was committed or at any place in India in which the offender may be found.

(5) In this section, the appropriate Government means—

(a) in relation to any offences under section 5 not connected with a prohibited place or with a foreign power, the State Government; and

(b) in relation to any other offence, the Central Government.”

The bare reading of the section makes it clear that the section is meant for placing restrictions on trial of offences wherein subsections (1) and (2) provides for jurisdiction of particular court and power to discharge; whereas, sub-section (3) specifically makes it clear that no court shall take cognizance of any offence under this Act i.e. the 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. Therefore, it is quite clear and obvious that complaint must be filed either by the officer or authority, which is authorised by the Central Government. Therefore, unless it is proved on record by cogent, and may be primafacie evidence that FIR u/s.3 of the Act is filed by the person empowered u/s.13(3) of the Act, such FIR cannot be proceeded further. Even if chargesheet is filed based upon such FIR, the court is not empowered to proceed further for such offence in absence of proper complaint. Subsection (4) of Section 13 deals with territorial jurisdiction; whereas sub-section (5) clarifies that what should be the meaning of “Appropriate Government” atleast with reference to Section 13 of the Act; wherein it is made clear that in relation to any offence u/s.5 not connected with a prohibited place or with a foreign power, the State Government would be appropriate Government and in relation to any other offence, the Central Government would be appropriate Government. It is quite clear and obvious that offence registered against the applicant is u/s.3 of the Act and therefore, Central Government would be appropriate Government to authorise and empower any authority or officer to lodge a complaint or to order to lodge a complaint against any person. It is quite clear and obvious that in the present case, complaint u/s.3 of the Act is filed by the P.I. of ATS, Gujarat on 13.10.2016 when there was no authorisation or empowerment or order by the Central Government being appropriate Government as provided u/s.13 of the Act.

5. Therefore, applicant is relying upon the decision between P.B. Chaudhari Vs. State of Gujarat reported in 1985 GLH (UJ) 34 wherein this Court has, as back as in the year 1984 made it clear that if complaint is not filed in proper manner, as required under the law, the Court cannot take cognizance.

6. The applicant is also relying upon an observation in order dated 13.9.2017 by coordinate Bench of this court in Criminal Revision Application No.718 of 2017 preferred by accused No.3 – Saad @ Sajid Abdul Karim Rayma when his discharge application at Exh.12 was also dismissed by the Sessions Court; wherein, in fact, the investigating agency has categorically disclosed that no offence is chargesheeted against the accused No.3 under the provisions of the Act and therefore, the co-ordinate Bench has disposed of the revision application since there were no charges under the Act atleast against accused No.3. However, in the same chargesheet, charges under the Act are made against accused No.1 – Alana Hamir Sama and present applicant, namely, Shakur Ibrahim Sama.

7. If we peruse the impugned order, the Sessions Court has mainly considered the sensitivity of the offences, if at all it is proved that applicant has parted with some secret information to the agents of ISI of Pakistan and recorded that non-following the provisions of the Act, more particularly Section 13, is only a technical ground, because, ultimately, sanction for prosecution has been accorded by the Central Government and when proceedings under the Customs Act has been initiated, it can be said that sanction under the Act is included and when offence is of serious nature, technical ground should not go in favour of the accused to get them discharged and that when offence under the Customs Act is registered, there is no need to accord sanction to prosecute under the Act. It is further observed that discharge application is filed at a belated stage only when the matter is listed before the trial Court and not immediately when the chargesheet was filed before the Magistrate and matter was committed to District Court.

8. However, it is undisputed fact that authority or sanction by the Central Government was obtained after registering the FIR. It cannot be ignored that even appropriate provision is available under the Code also i.e. Section 196 regarding prosecution for offence against the State. However, if we peruse the relevant provision, therein also, it is clear that as provided under sub-section (10A), that no court shall take cognizance of any offence punishable for acts prejudicial to national integrity or criminal conspiracy to commit such offence; except with the previous sanction of the Central Government or the State Government or of the District Magistrate. Therefore, prima-facie, it becomes clear that for any offence against the Government, previous sanction and order by the Central Government is necessary. However, the trial Court has considered the factual details of the offence as if it is proved and relied upon the sanction accorded by the Central Government by its letter dated 20.2.2017, whereby, they have authorised one Mr. A.R. Palas, P.I. of Gujarat Police, ATS to lodge complaint against the applicant. It is undisputed fact that complaint is not lodged by Mr. A.R. Palas, but by one Mr.V.R. Malhotra, P.I. of ATS and it was recorded and registered before one Mr. B.S. Chavda, Dy. S.P., ATS office at Ahmedabad. It is also undisputed fact that officer, who has been empowered to lodge the complaint, namely, A.R. Palas, P.I., ATS – Gujarat, Ahmedabad has on the contrary conveyed the Chief Judicial Magistrate by his letter dated 20.11.2016 to add the charges u/ss.465, 468, 471 of the IPC in such ATS police station C.R. No.I-3 of 2016 already registered under different Sections of Indian Penal Code, Information Technology Act and Official Secrets Act. Therefore, prima-facie, it becomes clear on record that FIR is registered against the applicant under the Act without authority, order or empowerment of competent officer or authority by the Central Government. Whereas, the officer, who has been empowered to lodge the complaint by order dated 20.2.2017, has not lodged the complaint under the Act, but on the contrary, made it clear that complaint under the Act is already registered, where he simply requested to add few sections of Indian Penal Code. Though this may be a technical issue, the basic principle of jurisprudence cannot be ignored that courts shall not travel beyond its jurisdiction, which is vested in it by the statute. To that extent, the concerned authorities may take appropriate steps in accordance with law to lodge appropriate complaint, but cannot press the court that even though there is some lacuna, even if it is technical, the court shall ignore such lacuna in favour of one of the litigant i.e. the Government. It cannot be ignored that the provisions of law are equally applicable to all the litigants, including the Government and if Government has failed to take appropriate steps in accordance with law, the courts are not supposed to travel beyond its jurisdiction.

9. If we peruse the order dated 20.2.2017 by the Under Secretary of the Government of India, who has issued such order from Ministry of Home Affairs of Government of India, it becomes clear that even after recording that the ATS – Gujarat police has registered a case bearing C.R. No.I-3 of 2016 dated 12.10.2016 at ATS police station, Ahmedabad, Gujarat under the provisions of the Act against the accused persons, now, therefore, the Central Government, in accordance with the provisions of sub-section (3) of Section 13 of the Act hereby authorised Shri A.R. Palas, P.I., Gujarat Police, Police Station – ATS, Ahmedabad, Gujarat to make a complaint against abovereferred accused persons, namely, Alana Hamir Sana and Sakur Ibrahim Sama in the court of competent jurisdiction. In the same order, if we peruse, the list of incriminating materials/documents has been recovered from the present applicant. Therefore, when language of such order is quite clear that, now, particular officer is empowered to make a complaint, the complaint is to be filed under the Act only after 20.2.2017 and not before that. Whereas, in the present case, complaint is already lodged on 13.10.2016 and even chargesheet was filed without proper authority/sanction of appropriate Government and therefore, irrespective of factual details and irrespective of its sensitivity, as claimed by the investigating and prosecuting agency, the fact remains that, practically, there was no prima-facie evidence against the applicant since nothing incriminating was found against him and that the complaint was not filed by the competent person as provided u/s.13 of the Act and therefore, when complaint is not lodged in accordance with law and when section specifically debars the court to take cognizance, when it reads that no court shall take cognizance of any offence under this Act, unless upon complaint made by officer empowered for the same by the appropriate Government, it would be difficult for any court, including the trial Court to take cognizance and to proceed further.

10. However, the Sessions Court has mainly relied upon the sensitivity of the case, but failed to see that what is actual evidence against the applicant and failed to consider that atleast for respondent No.3, even the Central Government has not accorded approval to prosecute him and therefore, trial Court has to look into both the issues i.e. prima-facie evidence against the applicant to prosecute him under particular section of a statute, so also legal requirement for filing and initiating such complaint. The above discussion makes it clear that there is lack of both the things and therefore, applicant is entitled to get benefit of discharge u/s.3 of the Act only and probably, knowing such fact, the application has preferred to discharge him only under such section and not for all the offences registered against him.

11. The applicant is relying upon following decisions:-

a) Dhanajaya Reddy vs. State Of Karnataka reported in 2001 SCC (Crimes) reported in AIR 2001 SC 1512;

b) State of Maharashtra vs. B.K. Subbarao, reported in 1993 Cri.LJ 2984;

c) Nar Bahadur Bhandari vs Union Of India (UoI) And Ors. reported in 1998 Cri.LJ 3475;

d) Angadi Srinivasa Rao Vs. State of AP reported in 2011 Cri.LJ 93 (A.P.); and

e) P.B. Chaudhari Vs. State of Gujarat reported in 1985 GLH (UJ) 34.

12. The applicant has also relied upon section 2(d) of the Code, which defines the word ‘complaint’ confirming that the complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. However, in explanation, it is made clear that report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint. Therefore, it is submitted that when complaint was not filed by officer empowered under the Act, the applicant ought to have been discharged. I have perused the record, including chargesheet papers. I could not find out any incriminating material or prior approval of lodging a complaint under the Act by the complainant Mr. V.R. Malhotra and therefore, though offences may be of serious nature, it would not be possible for the court to take cognizance when there is specific bar u/s.13(3) of the Act and therefore, though Government may initiate appropriate proceedings in accordance with law against the applicant for filing a fresh complaint under the Act, atleast the trial Court cannot take cognizance of such offence at this stage.

13. A reference to the following citations would be also relevant.

(1) AIR 1997 S.C. 2041: State of Maharashtra vs. Priya Sharan Maharaj

It is held that at the stage of framing the charge, the Court has to consider the material with a view to find out if there is ground for presuming that accused has committed an offence or that there is no sufficient ground for proceeding against him and not for the charges by arriving at the conclusion that it is not likely to lead to a conviction.

(2) AIR 2000 SC 665 = 2000 SCC(2) 57 : State of MP vs. SB Johari

It was held that, the Court at the stage of S.227 and S.228 is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence. Thus it is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial.

(3) 2005 SC 359: State of Orissa vs. Debendra Nath Padhi

The Apex Court has held that, it is seen from S.227 of the Code that in a case triable before the Court of Session, if the Court on consideration of the record of the case and the documents submitted therewith and after hearing the submission of the prosecution and the accused if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording reasons for doing so.

(4) (1997) 4 SCC 393 = 1997 AIR SCW 1833: State of Maharashtra vs. Priya Sharan Maharaj

Referring to the case of Niranjan Singh Karam Singh Punjabi (supra) held that at the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth and even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out that whether there is any ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

(5) AIR 2007 SC 2149 = 2007 AIR SCW 3683 - Soma Chakravarty v. State

It is held as under: Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible.

(6) AIR 2012 SC 1890 - General Officer Commanding Vs.CBI

It is held as under: The cognizance has to be taken of the offence and not of the offender and that it is the duty of the investigating agency to collect and to produce cogent evidence against the accused for framing charge and Court can convict the accused only if such charges i.e. evidence is proved on record without reasonable doubt. Therefore, if there is no chance to prove a commission of offence by the accused, charge cannot be framed.

(7) AIR 2009 SC Supplimentary 1744 - State of M.P. Vs.Sheetla Sahai

It is held as under: if the Court arrives at only opinion, there is no evidence against the accused, the Court shall not put accused to harassment by asking him to face a trial.

14. Thus, the law on the subject is now well settled, that at S.227 stage, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

15. In view of above facts and circumstances, the present Criminal Revision Application is allowed, whereby the impugned order dated 7.10.2017 below Exh.21 in Sessions Case No.4 of 2017 by the 8th Addl.Sessions Judge (Adhoc), Kutch at Bhuj, rejecting the application for discharging the present applicant u/s.3 of the Act, is hereby quashed and set-aside. Thereby, such application is allowed as prayed for. Though it is specifically prayed in such application, it is made clear that the applicant is discharged only from the offence u/s.3 of the Act on technical ground as discussed herein above and therefore, prosecution against the applicant would continue under other sections of IPC and I.T. Act. In view of such fact, when discharge is based upon technical ground, it would be appropriate for the competent authority to initiate appropriate proceedings, including filing of complaint in accordance with law. As and when any such proceedings are initiated, the competent court shall decide it in accordance with law without being influenced by any observation in present order since such observations are only for limited purpose at this stage.
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