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State of Kerala Vs. K. Balakrishna and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 277 of 1958
Judge
Reported inAIR1961Ker25; 1961CriLJ80
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439; ;Official Secrets Act, 1923 - Sections 5
AppellantState of Kerala
RespondentK. Balakrishna and anr.
Appellant AdvocatePublic Prosecutor
Respondent Advocate K. Velayudhan Nair and; V.S. Moothathu, Advs.
DispositionRevision dismissed
Excerpt:
.....of confidential documents - section 439 of criminal procedure code, 1898 and section 5 of official secrets act, 1923 - petition to enhance punishment awarded for publishing documents pertaining to budget - documents pertaining to budget comes within term 'secret documents' - publication of same prior to its presentation in assembly punishable - no serious consequence ensued on account of premature publication of budgetary documents - petition to enhance punishment dismissed. - - he also speaks in detail with respect to the procedure in the finance secretariat in the preparation of the budget before it is sent to the minister and also to the procedure with respect to its printing as well as the steps taken to keep it a closely guarded secret. on a consideration of all these..........case is whether the premature publication of the state budget would amount to an offence under the official secrets act, 2. the 1st accused in this case is the editor, printer and publisher of a daily by name 'the kaumudi'. the second accused is its city correspondent. the compositor of the government press, trivandrum, is the 3rd accused, but he had been discharged. the prosecution case is that certain parts of the budget for the year 1957-58 appendix v and vi, memorandum explaining alterations in the preliminary budget estimate and also information regarding introductory preface to the 2nd five year plan, detailed estimates and budget figures relating to the forest, transport, commerce, civil government works, general administration, judiciary, police and jails, education, etc., were.....
Judgment:

Govinda Menon, J.

1. This revision petition comes up for hearing before us on a reference made by our learned brother Joseph, J. The question that arises for decision in this case is whether the premature Publication of the State Budget would amount to an offence under the Official Secrets Act,

2. The 1st accused in this case is the Editor, Printer and Publisher of a daily by name 'The Kaumudi'. The second accused is its city correspondent. The compositor of the Government Press, Trivandrum, is the 3rd accused, but he had been discharged. The prosecution case is that certain parts of the Budget for the year 1957-58 Appendix V and VI, Memorandum explaining alterations in the Preliminary Budget estimate and also information regarding introductory preface to the 2nd Five Year Plan, detailed estimates and Budget figures relating to the Forest, Transport, Commerce, Civil Government Works, General Administration, Judiciary, Police and Jails, Education, etc., were published in the issue of the Kaurnudi dated 5-6-1957 before the Budget was presented before the Legislature on 7-6-1957. The Budget being a secret document of the Government, the reception and publication of the Budget matter in the issue of the paper before it was actually presented in the Legislative Assembly falls within the mischief of Section 5(2) and 5(1)(b) of the Official Secrets Act -- Act XIX of 1923 (hereinafter called the Act).

3. Accused 1 and 2 exercised the option allowed under Section 13, Clause (2) of the Act and enteredthe claim to be tried by the Court of Session. They were therefore committed to the Sessions to stand their trial. The learned Sessions Judge of Trivandrum found after trial that Appendices V and VI of the Memorandum and introduction to the plan Budget are 'secret documents' coming within the meaning of the Act and found that the second accused obtained possession of the same and gave it to the 1st accused, who in turn prepared the manuscript in his own hand-writing and printed and published the same to the daily paper Kaumudi, Ext. P5. He therefore found both the accused guilty under Section 5 Clause 2 and Section 5(1) Sub-clause (b) of the Act and sentenced the 1st accused to pay a fine of Rs. 100/-in default to undergo simple imprisonment for a month and the 2nd accused to pay a fine of Rs. 75/- or in default to undergo simple imprisonment for 21 days. Aggrieved with the view taken by the learned Sessions Judge tbat the offence committed wag only technical and the sentence being, in their opinion, grossly inadequate, the State has come up in revision.

4. Under Section 439(2), an order of enhancement of sentence cannot be passed unless the accused had an opportunity of being heard in his defence and under Section 439 (6) the accused is entitled when proceedings are taken under Section 439 (2) to show cause against his conviction. He has a right to be heard both on the question of the propriety of the conviction and also on the question whether the sentence awarded in the case is proper or should be enhanced. The learned counsel for the accused therefore argued the case on the merits also.

5. That the 1st accused is the editor of the Kaunudi and the 2nd accused is their city correspondent is amply proved by the evidence in the case and is not disputed. It is also equally clear from the evidence that the material figures and information contained in Appendices V and VI of the Memorandum and the figures contained in the Introductory to the Plan Budget were published in the Kaumudi on 5-6-1957 and that both the accused were responsible for the publication. The main point that is argued in this case was whether Appendix V and VI of tbe Memorandum and Introductory to the Plan Budget are official secrets within the meaning of the Act.

6. The main question that was argued is that Appendices V and VI of the Memorandum and Introductory to the Plan Budget are not 'official secrets' and do not come within the mischief of the Act. To ascertain the meaning of the expression 'Official Secrets', we may usefully refer to a decision, of the Special Bench of the Bombay High Court in Empc-ror v. R. K. Karanjia, 48 Bom LR 151 : (AIR 1946 Bom 362). In that case the Publisher of the weekly aews magazine called Blitz was called upon by the Government of Bombay to deposit a sum of Rs. 3,000/- as security under Section 7(3) of the Indian Press (Emergency Powers) Act, 1931, for having published an article in his news magazine dated 20-1-1945. The article is a short one and reads as follows:

'INFORMATION PLEASE

Blitz's overall policy is to give its readers the fullest information on all topics -- secret or otherwise -- affecting them. As such, this paper is not bound by an antiquated convention which debars thepress from releasing to the common people official secrets, confidential documents, leakages of such news as is sought to be suppressed from public knowledge. Such information is always most welcome when brought to the editor, and will be paid for at lavish rates. Blitz has in the past paid as such Rs. 1000/-and over for one such story ............. EDITOR'.

The case for the Crown was that the above article would come within Clauses (bb) and (f) of Sub-section (1) of Section 4 of the said Act. Regarding Clause 4, the Crown contended that the offence mentioned in that clause would be an offence under Section 5, Sub-section (1) of the Official Secrets Act, the material portion of which is to the effect that if any person having in his possession or control any document or information obtained or to which he has had access owing to his position as a person who holds or has held office under His Majesty wilfully communicates such document or, information to any person other than a person to whom he is authorised to communicate it, he is guilty of an offence, and the punishment is provided for in Sub-section (4) of the said section. Mr. Setalvad for the publisher applicant contended that the expression 'official secrets' in the article does not mean secrets of Government offices only but also of all offices or private institutions, and that the expression 'confidential documents' also does not necessarily mean Government documents alone but any document of a confidential nature whether Government or private-He strongly urged that the word 'official' in the expression 'official secrets' would mean according to the Oxford Dictionary 'of or pertaining to an office' and that it did not necessarily mean a Government office. As the expression 'official secrets' is not defined in the Official Secrets Act, Mr. Setalvad contended that it must, therefore, be taken in its dictionary meaning. Their Lordships held that:

'It is no doubt true that nowhere is the expression 'official secrets' defined, but looking to the purpose and scheme of the Official Secrets Act, especially Sections 3 - 10, which create offences against the Government for publication of official secrets, they have all reference to secrets of one or the other department of the Government or the State and not to any secrets of a private office. In our opinion the expression 'official secret' is ordinarily understood in the sense in which it is used in the Official Secrets Act. If the secret pertains to any private office such as, for instance, the office of the University or the Corporation it would not be called an official secret but as a University secret or a Corporation secret. But the term 'official' by itself has obtained the meaning attached to it in the Official Secrets Act, and in our opinion that is the sense in which it would be understood by readers of this news magazine. We are, therefore, unable to hold that 'official secret' is a wider term including secrets of any private institution'.

Their Lordships also held that Section 5, Sub-section (1) is very comprehensive in its nature and it applies not merely to Government servants but also to all persons who have obtained that secret in contravention of this Act. We are in respectful agreement with the view taken in the above case regarding the meaning of the the term 'official secrets'.

7. The next question that we have to decide is whether 'Budget Papers' are really 'official secrets'and are confidential documents. We may refer to the book on Constitutional Law by E. C. S. Wade and G. Godfrey Phillips, 3rd edition page 105. While discussing the financial procedure in the Parliament, it is stated as follows:

'Shortly after the opening of the financial year in April, the Chancellor of the Exchequer 'opens his Budget' in the Committee of Ways and Means. The traditional Budget statement falls into two parts. The first is a retrospect of the past year, comparing yield of revenue with estimated yield, and actual with estimated expenditure. The second part deals with (1) the estimated expenditure of the new year, which is already known to members and the public through the publication by March of the new year's estimated expenditure and (2) the Chancellor's proposals for meeting it out of taxation on the existing basis, together with his intention as to the imposition of new or the remission of existing taxation. These matters are closely guarded secrets until the Budget is opened, in order that steps may not be taken to forestall them, e. g., by dumping of goods or speculation on the stock exchange'. This passage lends support to the view that Budget matters are guarded secrets until the Budget is actually presented in the Legislature.

8. The oral evidence adduced in this case also would go to show that Budget papers are generally treated as official secrets. Pw. 13, Shri Achutha Menon was the then Finance Minister. He has detailed the procedure followed in preparing the Budget and swears that Budget papers are secret documents and they are kept secret till it is presented to the legislative assembly. He has stated that there has been always a convention to keep the Budget papers a secret, but he admits that he cannot say the origin of the convention. Pw. 2 is the Finance Secretary to Government. He also speaks in detail with respect to the procedure in the Finance Secretariat in the preparation of the Budget before it is sent to the Minister and also to the procedure with respect to its printing as well as the steps taken to keep it a closely guarded secret.

He says that the Budget contains the policy of the Government and that the Government owe to themselves and the legislature a duty to keep the facts contained in the Budget a secret. He says that any premature publication of the Budget proposals is bound to have repercussions on the economic condition of the State. Pw. 3 is the Deputy Secretary of the Finance Department and Pw. 10 is the Secretary to Government in the Legislative Secretariat. Their evidence is also to the same effect. The staff of the Government Press also has given evidence that the Budget matter is kept a secret while it is in their custody.

9. Besides these official witnesses, we have the evidence of Pws. 8, 9 and 5 which evidence also gives us an idea as to how Budget papers are treated by the Press people. Pw. 9 is K. Sukumaran, Editor, The Kerala Kaumudi. He swears that he would regard information relating to the Budget as a confidential document till it is actually presented in the Legislature and he would say that these confidential documents are not intended for publication before they are presented in the Legislature. Pw. 8 is a representative of 'The Hindu', a person having 22 years' experience in the journalistic line.

He also says that informations relating to the Budget are treated as highly confidential till the Budget is actually presented before the Legislature. Pw. 7, the Joint Editor of the Kaumudi also says that papers relating to the Budget are looked upon ag secret documents. Pw. 6, Shri K. P. Neelakanta Pillai, ex-Speaker of the T-C Legislative Assembly swears that the speech of the Finance Minister introducing the Budget is considered as a secret. So from all these evidence it would appear that even though there is no written rule declaring Budget papers before it is presented by the Finance Minister in the Legislature as secret documents, it has always been treated as such. On a consideration of all these evidence and the views expressed in books on Constitutional Law about the matter, we are clearly of opinion that Budget papers are 'official secrets' which cannot be published until the Budget is actually presented in the Legislature and that contravention of the same would amount to an offence under the Act. The contention of the respondents therefore fails.

10. The 1st respondent was an Ex-Member of the State Legislative Assembly with quite a long experience as an editor. He must certainly have been aware of the fact that the reception and premature publication of the Budget matter is an offence coming within the purview of the Official Secrets Act. The second accused is also a journalist with experience and therefore he too must have been aware that his getting clandestine copies of the Budget proposals and its premature publication will be in contravention of the Act. Both the accused have therefore been rightly found guilty of the offences punishable under Section 5(2) and Section 5(1), Sub-clause (b) of the Official Secrets Act (Act XIX of 1923).

11. The next question is whether in the nature of the offence, it calls for enhancement of the sentence. We do not agree with the learned Sessions Judge that this is only 'a technical offence'. It is certainly a serious offence which might have far reaching consequences and repercussions on the economy of the State. The learned Sessions Judge has sentenced the 1st accused only to pay a fine of Rs. 100/- and the 2nd accused only to pay a fine of Rs. 75/-. If we were trying the case, certainly a more serious punishment would have been awarded by us. But that by itself is no ground to enhance the sentence.

The question is whether there are special circumstances in this case which call for our interference by enhancement of the sentence. The question of sentence is a matter of discretion of the trial court. The power to enhance the sentence should be sparingly exercised by the High Court and the sentence should not normally be enhanced except in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. A court sitting in revision is not bound to interfere even though the trial court has failed to exercise its discretion properly, if it finds that substantial justice has been done. The learned counsel for the defence has brought to our notice the evidence of Pw. 13, the then Finance Minister, that serious consequences may ensue on account of the premature publication of the Budget, but that in this particular case no such consequence had followed.

Similarly Pw. 2, the Finance Secretary, also stated that he is not in a position to say whether the premature publication in this particular case did actually affect the economy of the State. Our attention was not drawn to the evidence of any witness who had stated that any serious consequence ensued because of the publication. The learned counsel argued that this must have really weighed with the learned Sessions Judge in having imposed what may apparently seem to be an inadequate sentence. The learned counsel also argued that he cannot subscribe to the view of the learned Sessions Judge that the offence is technical. On a consideration of all the facts and circumstances of the case, we are of opinion that this is not a case where we should enhance the sentence passed on the respondents.

12. The Revision Petition fails and is dismissed.


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