Bombay High Court Raps Maharastra Police For Misusing Official Secrets Act, Says Police Stations Not 'Prohibited Place' For Videography

The Bombay High Court has pulled up the police for registering FIRs under Section 3 of the Official Secrets Act against those videographing "discussions" or taking photographs inside police stations and directed the authorities to take appropriate steps to ensure the law is not misused.

The division bench of Justice Revati Mohite Dere and Justice Prithviraj K. Chavan said it would be open for the Director General of Police, Commissioner of Mumbai Police and Home Department to consider whether a senior high ranking level officer be informed when an FIR under the Official Secrets Act is lodged, in matters concerning the Police Station, to curb misuse of the Act.

"We regularly come across cases where F.I.R's are being registered by the Police, under section 3 of the Official Secrets Act, without application of mind, which is a matter of serious concern i.e., for acts done in the Police Station, video graphing of discussions in the Police Station, taking photographs within the Police Station, etc, more particularly, when a 'Police Station' is not a prohibited place" said the court.

Section 3 (Penalties for spying) of the Official Secrets Act, 1923 provides punishment for spying at a 'prohibited place' under section 2(8) of the Act. It is for acts against the safety or interest of the state.

The court relied on Ravindra Shitalrao Upadyay v. State of Maharashtra wherein it was held that video recording made on mobile phone within the police station would not attract section 3 of the Act. It said to attract the provisions of the Official Secrets Act, the place the place where the incident takes place has to be a prohibited place', as defined in section 2(8) of the enactment.

The bench added that invocation of section 3 of the Act can have drastic consequences on the person against whom it is invoked.

"It could impact one's reputation, job, career and so on. It cannot be lightly invoked, to jeopardize someone's life and career. Law cannot be misused / abused and must not be used as a tool for harassing or tormenting persons. It is the duty of the Police to protect people and act in accordance with law"

The directions were passed in a case seeking quashing of an FIR registered against a man at Akluj Police Station, Solapur last year. The accused had taken a photograph outside the police station, when he was called there in connection with an FIR against him.

"We are shocked and appalled, how the concerned Police Officer could have even lodged an offence for the alleged act of taking photograph of the Police Station, from outside, under the Official Secrets Act, as against the petitioner," said the court.

The court said that prima facie Section 3 has been invoked by the police in a mala fide manner. The court noted that the definition of 'prohibited place' under section 2(8) of the Act is an exhaustive one and does not include a police station.

"Admittedly, even according to the prosecution, the petitioner had only taken one photograph (which is at page 35 of the petition) of the people standing outside the Police Station with the Police Station in the background," it said in the order.

According to the petitioner, he had clicked the photograph to show that "police personnel and the persons with whom there was a family dispute and who had opposed the demarcation proceedings were communicating with each other in a friendly manner."

The court said it cannot comprehend how an FIR could have even been registered on the basis of the said photograph, that too, for a serious offence under section 3 of the Official Secrets Act.

"Registration of the offence under Section 3 of the Official Secrets Act, as against the petitioner, in the facts, is clearly an abuse of the process of law and if not quashed, would lead to serious miscarriage of justice, which cannot be countenanced," it observed further.

Quashing the FIR and the chargesheet filed by the police, the court directed the State to pay costs of Rs. 25,000 to the petitioner within four weeks. It further directed the State to recover this amount from the salary of the persons responsible for invoking Section 3.

"Matter to be kept on 15th February, 2023, for recording compliance of the payment of costs and steps taken for recovery of costs from the erring Officers," said the court.

Case no. – Writ Petition [Stamp] No. 20054 of 2022

Case Title – Rohan Tukaram @ Appasaheb Kale v. Somnath Haribhau Koli and Anr.

Citation: 2022 LiveLaw (Bom) 513