Recording Conversation With Officer In Police Station Is Not An Offence Under Official Secrets Act: Bombay High Court
The Bombay High Court last month held that the act of recording audio in a police station would not become an offence under the stringent Official Secrets Act (OSA).
A division bench of Justices Vibha Kankanwadi and Santosh Chapalgaonkar, sitting in Aurangabad, quashed an FIR lodged against two brothers, one of whom works as a Constable with the Mumbai Police, who were booked under the Official Secrets Act for recording conversation with a police officer, within the police station at Pathardi, Ahmednagar.
The bench noted that the entire episode as alleged in the FIR lodged on July 19, 2022, had taken place in Police Station and the police invoked the Official Secrets Act, 1923.
"Section 2 (8) of the said Act defines what is prohibited place. Police Station is not included in the said definition. Section 3 of the Official Secrets Act, 1923 deals with Penalties for spying," the judges noted in the September 23, order.
Further, referring to section 3 in detail, the judges reproduced the said provision"
"Penalties for spying. - (1) If any person for any purpose prejudicial to the safety or interests of the State -
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or
(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy [or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States]; he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal,naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years.”
"Anything done in the police is absolutely not included in Section 3. Under such circumstance, ingredients of the said section are not at all attracted (sic)," the judges said, indicating that the act of the accused would not attract provisions of the OS Act.
Background:
The bench was dealing with the petitions filed by Subhash and Santosh Athare, two brothers seeking to quash the Jul 19, 2022 FIR lodged against them by the Pathardi Police for offences under the OS Act.
The FIR was lodged pursuant to an incident of April 21, 2022, wherein three persons allegedly barged into the house of the Athare brothers, assaulted their old mother and even tried to outrage her modesty. However, on April 26, Subhash was irked to learn that only a non-cognisance (NC) offence was lodged by the officers of the Pathardi Police Station. And when he sought to know from the officers, why the did not register an FIR, he was allegedly abused in filthy language.
Subsequently, on May 2, 2022, the police officers called Subhash to the police station and pressurised him to withdraw his complaint. It is then that Subhash recorded the conversation with the police officer and him in his phone. He then lodged a complaint with the Director General of Police (DGP) of Maharashtra highlighting the 'threats' issued to him and his brother by the officers, for filing the case.
While the applicants argued that the instant FIR was lodged with an ulterior motive, the State justified the the FIR.
Appearance:
Advocate AG Ambetkar appeared for the Applicants.
Additional Public Prosecutor NR Dayama represented the State.
Case Title: Subhash Athare vs State of Maharashtra (Criminal Application 3421 of 2022)