P.C. Borooah, J.
1. This revisional application is directed against an order dated October 11, 1974, passed by Sri N. G. Choudhury, Sessions Judge. 4th Bench. City Sessions Court, Calcutta, framing charges against the accused petitioner Richard Winn Harcos and three others under Section 120-B, Indian Penal Code read with Sections 3, 6 and 9 of the Officials Secrets Act. 1923, and Sections 451/437/511, Indian Penal Code and III-4(II) Port Bye-Law as well as under Sections 3, 6 and 9 of the Official Secrets Act and Sections 437/511 of the Indian Penal Code.
2. The accused-petitioners Richard Winn Harcos, a national of the United States, was arrested on April 26, 1973, at 04.00 hours inside the King George's Dock (Extension) Calcutta (since renamed at Netaji Subhas Dock Extension). He had no authority or permit to enter the dock area and he had also in his possession diving equipment fitted with oxygen cylinder meant for naval warfare and painted in black colour for the purpose of camouflage. The accused-petitioner was taken into custody and subsequent to the filing of an F. I. R. investigation commenced and the other accused-respondents were also arrested. Thereafter, on March 14, 1974, a petition of complaint was filed in the Court of the Chief Presidency Magistrate, Calcutta together with the sanction for prosecution granted by the Government of India under Section 13 of the Official Secrets Act. After an order of commitment to the Court of Session, the learned Judge framed charges against the accused petitioner and the other accused persons after having heard both the defence and the prosecution.
3. It is contended before us by Mr. Amal Kumar Dutta, learned Advocate appearing on behalf of the accused petitioner, that the learned Judge's order framing charges against the accused petitioner and the other accused persons should be quashed for the following reasons:
(a) the learned Public Prosecutor in opening the case for the prosecution before the learned Judge did not comply with the statutory requirements of Section 226 of the Code of Criminal Procedure. -1973 (hereinafter referred to as the Code) inasmuch as the learned Public Prosecutor made only a cryptic statement and handed over a sheet of paper to the learned Judge;
(b) in view of non-compliance with the statutory provisions of Section 226 of the Code by the learned Public Prosecutor proper submissions could not be made before the learned Judge on behalf of the accused and as such the provisions of Section 227 of the Code were contravened;
(c) the learned Judge in framing the charges against the petitioner and the other accused persons took into consideration the documents produced by the investigating officer pursuant to the order of the committing Magistrate which were not referred to at all by the learned Public Prosecutor in his opening of the case and of which the accused petitioner was not provided neither with copies nor was he given an opportunity to inspect the said documents.
4. As regards the first and second contention of Mr. Dutta, the learned Judge has observed in the impugned order as follows:
Learned P. P. has been heard at length under Section 226, Criminal Procedure Code. Ld. lawyers for the differend accused have also been heard at length under Section 227 of Criminal Procedure Code.
In paragraph 17 of the petition it is stated as follows:
That at the time of the hearing of the said matter, the learned Public Prosecutor opened his case, presumably as envisaged under Section 226 of the Code of Criminal Procedure, 1973 by stating in a very cryptic way the facts of the case and what charges, according to him, were to be framed against your petitioner and others, and handed over to the learned Judge a draft copy of the proposed charges (No copy was given to your petitioner's Lawyer, nor even he was allowed to look into it). The learned Public Prosecutor did not state at all 'by what evidence he proposed to prove the guilt of the accused.
5. It is thus clear both from the learned Judge's order as well as from paragraph 17 of the petition that the first submission of Mr. Dutta is baseless. Under Section 226 of the Code the Public Prosecutor in opening his case for the prosecution is required to describe the charge brought against the accused and to state by what evidence he proposes to prove the guilt of the accused In other words, the Public Prosecutor should give a brief summary of the evidence and the particulars of the witnesses by which he proposes to prove the case against, the accused person. It is not necessary for a Public Prosecutor in opening the case for the prosecution to give full details regarding the evidence including the documents by which he intends to prove his case. From the learned Judge's order it is apparent that the learned Public. Prosecutor complied with the provisions of Section 226 of the Code.
6. The learned Public Prosecutor having, according to the learned Judge, opened the case at length, the lawyers appearing for the accused could not have been in any way prejudiced in arguing their case and making their submissions before the learned Judge. Moreover, in accordance with the order passed by this Court in Criminal Revn. Case No. 911 of 1974 : (reported in 1975 Cri LJ 832) (Cal) the prosecution was directed to allow the accused inspection of the documents sent up by the learned Magistrate when committing the accused persons to the Court of Session. Those documents included, inter alia, the petition of complaint, the seizure list, and the sanction, and inspection was in fact taken of such documents.
7. Coming to the third contention of Mr. Dutta, the learned Magistrate in framing the charges against the accused petitioner and the other accused persons considered the record of the case sent by the committing Magistrate along with the commitment order including the complaint in writing made by the Inspector of Police on 14-3-1974, the sanction dated 19-2-1974 granted by the Government of India. Ministry of Home Affairs, the seizure lists and also after having seen the materials produced by the investigating officer pursuant to the order of the committing Magistrate, Of the documents which the learned Magistrate relied upon in framing the charges, the defence only did not have inspection of the materials produced by the investigating officer pursuant to the order of the committing Magistrate. The question to be decided is whether without the materials produced by the investigating Officer pursuant to the order of the committing Magistrate, the learned Judge would have framed the charges against the accused persons.
8. Section 228 of the Code relates to framing of charges by the learned Sessions Judge after the case had been opened by the learned Public Prosecutor and after the submissions made on behalf of the accused have been, heard. According to the said section if after having heard the prosecution and the defence the learned Judge is of opinion that there is ground, for presuming that the. accused has committed an offence the Court shall frame in writing a charge against the accused. Therefore, according to Section 228 of the Code, at the time of framing of the charge it is not necessary for the prosecution to establish beyond all reasonable doubt that the accusation which they are bringing against the accused person is bound to be brought home against him. The purpose of Sections 227 and 228 of the Code is to ensure that the Court should be satisfied that the accusation made against the accused person is not frivolous and that there is some material for proceeding against him. The stage prior to the framing of a charge is not expected to be a dress rehearsal of a trial or in other words, the details of all materials which the prosecution will produce or rely on during the stage of the trial, are not expected to be produced or referred to before the learned Judge at the time of the opening of the case for the prosecution.
9. In the impugned order the learned Judge may have referred to certain documents of which the accused persons are yet unaware. It is possible, that the learned Judge looked into the said documents to reassure himself before framing the charges, because on a scrutiny the other documents referred to by the learned Judge we find that there are sufficient materials for making out a prima facie case against the accused persons and the others on the charges which have been framed by the learned Judge.
10. According to Section 3(2) of the Official Secrets Act, 1923, a person can be convicted by mere circumstances Or conduct. In the instant case, the mere presence of the accused petitioner inside the King George's Dock without a permit in the early hours of the morning with diving equipments is sufficient to raise a presumption that he has committed an offence under the Official Secrets Act. The seizure list also goes to show that framing of the charges against the accused petitioner and the others was fully justified. We do not wish to go into the details of the petition of complaint or the seizure list at this stage to prevent prejudice to the accused persons in course of the trial.
11. In any view of the matter, we find this application to be without any substance and it is accordingly dismissed and the Rule is discharged. The learned Magistrate will proceed with the trial as expeditiously as possible.
12. The records have been produced before this Court under sealed cover. Let the records be sent back to the learned Judge under a special escort provided by the Special Branch of the Calcutta Police.
P.K. Chanda, J.
13. I agree.