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The Superintendent and Remembrancer of Legal Affairs Vs. Anthony Alten Fletcher and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1975CriLJ832
AppellantThe Superintendent and Remembrancer of Legal Affairs
RespondentAnthony Alten Fletcher and anr.
Cases ReferredNaresh Shridhar Mirajkar v. State of Maharashtra
Excerpt:
- .....official secrete act, 1923, for holding the proceedings in camera by excluding the public and the learned judge allowed the said prayer by his order dated the 6th august, 1974. ?>n that date an application was filed on 'behalf of the accused-opposite parties before the learned judge for inspection of the records and documents of the case and the learned judge fixed 23-8-1974 for consideration of the said prayer. thereafter on 9-8-1974 another application was filed on behalf of the accused-opposite party, anthony allen fletcher alias tony, for a certified copy of the order -dated 6-8-1974 passed under section 14 of the official secrets act, 1923. the prosecution filed two writteft objections thereto. the first one, relating to the grant of inspection, submitted inter alia that the.....
Judgment:

N.C. Talukdar, J.

1. These two Rules are at the instance of the Superintendent and Remembrancer of Legal Affairs, West Bengal, on behalf of the State of West Bengal, directed respectively against two orders dated 12-8-1974 and 23-8-1974, passed by Sri N. G. Chou-dhury, Judge, 9th Bench, City Sessions Court, Calcutta in Sessions Case No. 67 of 1974, arising out of S. P. P. S./S. B. casa No. 93 dated 26-4-1973 under Sections 120B/437/451/511. Indian Penal Code, Sections 3, 6 and 9 of the Official Secrete Act, 1923 and under Rule l}l-4-(II) of the Port Bye Law. The two Rules were directed to be heard together and are taken up together for disposal, for the sake of convenience.

2. The Rules arise in the backdrop of the Official Secrets Act, 1923 and the facts leading on to the same are rather chequered, being highlighted by several applications preferred at different stage* before the High Court by both the parties. The first Rule, being criminal Revision No. 911 of 1974, is directed against the Order dated the 23rd August, 1974, while the other Rule in Criminal Revision No. 912 of 1974, is directed against the other Order dated 12th August, 1974. S. P. P. S./S. B. case No: 93 dated 26-4-1973 under Sections 120-B/437/451/511, Indian Penal Code, Sections 3, 6 and 9 o the Official Secrets Act, 1923 and Rule 111-(4)-(II) of the Port Bye Law was started against the accused-opposite parties and several others, on a complaint lodged by one Md. Maniruddin, Shed Writer, Night-in-Charge, King George's Dock Extension. During the investigation, the accused-opposite parties and the co-accused, David Ming Hsuan Chans alias Halaku and Joseph alias Yusuf, were arrested on different dates from different places. Two other accused, viz., Bela Harcos (Junior) alias Bill and Dr. Kuo Hsuan Chang are said to be still absconding. The arrested persons were duly produced in Court and remanded to custody.

3. After the conclusion of the investigation, the prosecution obtained the necessary sanction from the Central Government and filed a complaint in the Court of the Chief Presidency Magistrate on 14-3-1974 as provided for under Section 13 of the Official Secrets Act, 1923 against the accused-opposite parties as well as the co-accused under various sections already referred to. The proceedings were held in camera before the learned Chief Presidency Magistrate, Calcutta on the prayer of the prosecution made under Section 14 of the Official Secrets Act, 1923, in order to avoid tha publication of official secrets and ultimately the learned Chief Metropolitan Magistrate, Calcutta by his order dated the 10th July, 1974 committed the accused persons to the City Sessions Court,. Calcutta under the provisions of the new Code (Act 2 of 1974). The case beinR Sessions Case no. 67 of 1974, was thereafter transferred to the file of Sri N. G. Choudhury, Judge, 9th Bench, City Sessions Court, Calcutta for trial and a Prayer was made before him on 31-7-1974, under Section 14 of the Official Secrete Act, 1923, for holding the proceedings in camera by excluding the public and the learned Judge allowed the said prayer by his Order dated the 6th August, 1974. ?>n that date an application was filed on 'behalf of the accused-opposite parties before the learned Judge for inspection of the records and documents of the case and the learned Judge fixed 23-8-1974 for consideration of the said prayer. Thereafter on 9-8-1974 another application was filed on behalf of the accused-opposite party, Anthony Allen Fletcher alias Tony, for a certified copy of the Order -dated 6-8-1974 passed under Section 14 of the Official Secrets Act, 1923. The prosecution filed two writteft objections thereto. The first one, relating to the grant of Inspection, submitted inter alia that the defence should not be allowed inspection -of records and documents of the case at that stage as the same is contrary to the object of a camera trial, being fraught with the risk of leakage and publication of evidence to be led or statements to be recorded in the trial, and as also opposed to the principles laid down by the High 'Court in the case of The Supdt, and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmik, reported in 75 (Cal WN 48 : (1970 Cri LJ 1631). The second objection was directed against the application for certified copy, and filed on 12-8-1974, submitting inter alia that the accused-opposite party is not entitled to such certified copy in view of the order passed by the learned Judge u/s. 14 of 'the Official Secrets Act, 1923 and in view of the decision of the High Court reported in 75 Cal WN 48 : (1970 Cri LJ 1631). The application for certified copy dlated 9-8-1974 and the written objection dated 12-8-1974 filed thereto were taken up for consideration by the learned -Judge, 9th Bench, City Sessions Court, Calcutta who by his Order dated the 12th August, 1974, overruled the objection raised by the prosecution and allowed the prayer for certified copy. This Order has been impugned and forms the subject-matter of Criminal Revision Case No. 912 of 1974. The other application preferred by the accused-opposite party dated 6-8-1974 and the objection filed thereto on behalf of the prosecution, were ultimately taken up for consideration on '23-8-1974 when the learned Judge, by his Order of the same date, overruled the objection raised by the prosecution and passed an order allowing inspection of the records and documents of the case by the accused-opposite party subject to the conditions laid down therein. This order was also impugned and forms the subject-matter of Criminal Revision, No, 911 of 1974.

4. The Rule relating to the order -allowing certified copy is taken up for consideration in the first instance. On. prayers made by the prosecution in its application filed on 31-7-74 for holding the trial in camera by excluding the members of the public, the learned Judge, 9th Bench, City Sessions court, by his order dated 6-8-74 allowed the trial to be held ostis apertis. It was contended on behalf of th^ prosecution that the publication of the evidence to be given or any statements to be made in course of the proceedings would be prejudicial to the safety of the State and as such an order under Section 14 of the Official Secrets Act, 1923, was called for. The accused, Anthony Allen Fletcher alias Tony ap-plied for a certified copy of the said order but it was objected to by the learned Special Public Prosecutor of the case in a written application inter alia on the ground that the case being one under the Official Secrets Act, all copies and inspection of documents should not be granted in view af the observations made in the case reported in 75 Cal WN 48 : (1970 Cri LJ 1631). After hearing the respective arguments, the learned Judge held that the accused should be allowed to get the certified copy as prayed for, inasmuch as the publication of the'Order-sheet would not be prejudicial to the safety of the State and the objection of the prosecution was overruled. The learned Standing Counsel placed before us the Order dated the 6th August, 1974, a substantial part whereof relates to the facts leading on to the application for copy and a discussion of the principles laid down in, the cases reported in 78 Cal WN 313 : (1,973 Cri LJ 304), and 75 Cal WN 48 : (1970 Cri LJ 1631) and the respective submissions made. The penultimate paragraph, which is found fault with, merely sets down a very short re'sume' of the case by the Special Public Prosecutor and it does not refer to any deposition or documents, far less any matter the publication whereof would be prejudicial to the safety of the State. Mr. Bejoy Kumar Bhose, Advocate, appearing on behalf > of the accused-opposite parties submitted that it is an innocent statement of the prosecution case in, a general way and not a detailed discussion based on documents and deposition. He further urged that the contents of the said paragraph have, by and large, been already incorporated in several Orders passed by the Courts, some of which have even been reported. In the circumstances, he submitted that there was no apprehension of any leakage of any secret endangering the safety of the State in granting the certified copy prayed for. The learned Standing Counsel left the matter to the discretion of the Court. We have given our anxious consideration to the Order in general and the said paragraph in particular and we find that there is no reference to any documents or materials the publication of which would endanger the safety of the State. Such a general description of the case has already been given in the Orders delivered earlier some of which have been reported and we are of the view that the grant of v the certified copy of the prder would not result, in any way, in the publication of jmy material which, in accordance to the intention of the legislature should not be published. The objection raised by the prosecution is, therefore, untenable and the impugned order, granting certified copy is upheld. We, accordingly, discharge the Rule in Criminal Revision Case No. 912 of 1974.

5. The point involved in the other Rule, viz., Criminal Revision No. 911 of 1974, is of some importance, having an impact on cases tried under the Official Secrets Act, 1923 and is now taken up for consideration. Mr. Dipankar Gupta, Standing Counsel with Mr. Sumit Moi-tra, Advocate, appearing on behalf of the petitioner contended that the point at issue has two facets viz., (a) the documents that can be* allowed to be inspected in a trial directed to be held in camera and (by the stage at which such documents should be allowed to be inspected. The learned Standing Counsel made it quite clear at the outset that his submissions were made within the bounds 'of the principles laid down in Satyen Bhow-mik's case 75 Cal WN 48 : (1970 Cri LJ 1631). Mr. Bejoy Kumar Bhose, Advocate, appearing on behalf of the accused-opposite parties joined issue and contended that in view of the provisions of the new Code of Criminal Procedure, Act 2 of 1974, and the observations made in the case reported in 75 Cal WN 48 ='(1970 Cri' LJ 1631). the accused persons have a right to have an, inspection of the records and the documents and take notes thereof in the manner as directed in the reported decision and that this is a valuable right which should not be whittled *down. Mr. Bhose next submitted that ithe requisite stage for allowing such inspection is the stage of defence and any denial of such right would only result in a denial of justice and prejudice the accused persons.

6. The Order passed by the learned Judge, 9th Bench, City Sessions Court, Calcutta, is otherwise a well-considered one excepting that the ultimate conclusions arrived at therein are only abstract /propositions based on the provisions of rthe statute but de hors the facts of the case. 'Facts are like sacks' observed Pirandello 'and cannot stand on their wn': but they have to be put in their place for a proper consideration of the point at issue. It was observed in the case .of United States v. Rodenburgh reported in (1926) 14 FED 2nd 989, that 'every question of law arises out of a fact situation, and if there be no state of facts,, there can be no question of law.' We respectfully agree. The learned Judge in. this case relied on the principles laid down in Satyen Bhowmik's case 75 Cal WN 48 : (1970 Cri LJ 1631). bereft of the context and without a consideration* of the stage reached in the present proceedings, although the same has a material bearing on the ultimate findings to be arrived at. In the well known case of fcjuinn v. Leatham. reported in 1901 AC 495, Lord Chancellor Halsbury observed! at page 506 that 'a case is only an authority on what it actually decides and it cannot be quoted' for a proposition that would, seem to foll&w; logically from it.' , Each case therefore must depend on its. own facts, qualified of course by the principles laid dowjj. in the long catena of judicial decisions arrived at earlier and the doctrine of stare decisis. The learned Judge observed in his Order that he-was satisfied 'that the accused have & right of inspection of records and documents contemplated under Sections 207 and 208 of the new Code.' Section 207, however, has no manner of application as the instant proceedings were not instituted on a police report; and the stage of Section 208 has also been left behind-Section 208 of Act 2 of 1974 enjoins that

where, in a case instituted otherwise* than on a police report, it appears to the Magistrate Issuing process under Section* 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following;->

(i) the statements recorded under Section 200 or Section 202, of all persona examined by the' Magistrate;

(ii) the statements and confessions, if any, recorded under Section 161- or Section 164;

(iii) any documents produced before1 the Magistrate on which the prosecution, proposes to rely;

There is a proviso thereafter relating ta. voluminous documents with which however, we are not concerned in this case. It is abundantly clear therefore that the provisions of Section 208 of the Code of Criminal Procedure do not also apply to the present case. An order of commitment has already been made and as enjoined under Section 209(c) of the Code of Criminal Procedure, 1973, the Committing Court had sent to the Court of Session 'the record of the case and the documents and articles, if any, which are to be produced in evidence.' We accordingly hold that the inspection prayed for and allowed must be confined to such record and documents etc. coming within the bounds of Section 209(c) of the Code of Criminal Procedure, y>73, Whatever has been sent under the 'aforesaid provisions would constitute the subject-matter of the inspection which cannot at this11 stage, be over-expansive, outside the (bounds of Section 209(c). We must make it clear, however, that the observations aade by us, as above, are not of a general nature, covering all contingencies but have been made only in the context of ?he stage reached in the present proceedings and limited to the facts and circumstances thereof. The first dimension of the learned Standing Counsel's submissions accordingly succeeds.

7. The second dimension of the learned Standing Counsel's contention'relates to the stage at which such documents should be allowed to be inspected. Mr. Gupta submitted that such inspection is to be allowed at the proper stage viz., the stage of defence and in the manner as set down in the case reported in 75 Cal WN 48 : (1970 Cri LJ 1631). He ultimately submitted that such stage will only arise after the framing of the charges and not before and as such the prayer made on behalf of the accused-opposite parties is premature, Mr. Bejoy Bhose, Advocate, appearing on behalf of the accused-opposite parties joined issue and ontended that the Order-Sheet would make it abundantly clear that the said stage has been reached. In fact a date has been fixed by the learned Judge, 9th Bench, City Sessions Court, Calcutta, for the. framing of charges and in that connection the learned Judge has to consider the record of the case and the documents and hear the submissions of the accused and the prosecution in this behalf. We have given our anxious consideration to the stage reached. We find that Chapter XVIII of the Code of Criminal Procedure, 1973, relates to a trial before the Court of Session. Section 226 thereunder relates to the opening of the case for prosecution and provides that when the accused appears or is brought before the Court In pursuance of a commitment of the case, under Section 290, the Prosecutor shall open his case by describing charges brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Section 227 relates to discharge and is as follows:

If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

Section 228, which comes thereafter, relates to the framing of charges and pro-jrides under Sub-section (1) that-

If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence, he shall frame in writing the charges against the accused subject to the provisions of Clauses (a) and (b) thereafter.

The Order-sheet, brings to light that the date has been fixed for the framing of charges. If, at this stage, the accused is not allowed an inspection of the record.-; and documents as referred to under Section 209(c) of the Code of Criminal Procedure, it would prejudice the defence in making its submissions on behalf of the accused, denying thereby a valuable right to the accused in a criminal trial. We accordingly hold that the stage reached in the present proceedings is the proper stage when such inspection is to be allowed. A trial ostis apertis under the Official Secrets Act, 1923 is a marked departure from an ordinary trial, circumscribing many of the rights of the accused. It may well be, as was observed by Mr. Justice Hidayatullah (as His Lordship then was) in his dissentient judgment in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, reported in 0044/1966 : [1966]3SCR744 that 'where the legislature felt the special need it provided for it.' But the little chinks that are ultimately left by. the provisions of the statute or the imprimatur of the judicial decisions, should not be allowed to be closed in the interests of justice.

8. In the result, we modify the order dated the 23rd August, 1974, passed by Sri N. G. Choudhury, Judge, 9th Bench, City Sessions Court, Calcutta in Sessions Case No. 67 of 1974 as follows:

(a) that the inspection granted at this stage shall be with regard to the record of the case and the documents and articles, if any, sent to the Court of Session under Section 209(c) of the. Code of Criminal Procedure, 1973; and

(b) that such inspection will be held in the Court of the learned Judge, 9th Bench, City Sessions Court, Calcutta at such time as the learned Judge may be pleased to direct and for such number of days as may be necessary in the presence of the Courts' Officers, and the I. O. or his nominee and the learned Public Prosecutor shall also be entitled to be present, if available.

The other conditions laid down in the order of the learned Judge shall remain and the Sessions trial is to be held expe-ditiously.

9. The Rule is disposed of accordingly.

A.N. Banerjee, J.

10. I Agree.


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