"Need To Amend The Provisions Contained in Section 13 Of The Official Secrets Act At The Earliest ": Delhi HC [Read Judgment]

Delhi High Court has held that submitting the investigation report under section 173 of the Criminal Procedure Code is mandatory even when a complaint has been filed under Official Secrets Act. The Single Bench of Justice RK Gauba also opined that the Magistrate is not compulsorily required to conduct an inquiry before committing the case to the court of Sessions.

In the present case, some searches were conducted in the premises located in Defence Colony, New Delhi by the Income Tax Department, wherein, certain classified documents of Ministry of Defence were found. Thereafter, the FIR was lodged for offences under sections 3 and 5 of the Official Secrets Act and section 120-B of the Indian Penal Code.

The Petitioner approached the High Court under section 482 of the CrPC challenging the Order of the CMM which had held that there was no illegality in taking cognizance and issuance of process on the complaint presented under section 13 of the Official Secrets Act by an officer duly empowered by the Central Government. It was submitted that the CMM had erred because she should have stayed the proceedings on the complaint under section 210 (1) Cr.P.C. and called for the final report of an investigation under section 173 Cr.P.C. into the FIR.

The counsel for the CBI, on the other hand, argued that the Official Secrets Act involves a special procedure in terms of section 13 wherein cognizance can be taken only upon a complaint of an officer especially empowered by the appropriate government and, therefore, section 210 Cr.P.C. has no relevance. It was submitted that on complaint of a public servant, empowered under section 13 of the Official Secrets Act, no such inquiry as envisaged in sections 200 and 202 Cr.P.C. is required to be held, there being no obligation on the court of Magistrate to record pre-charge evidence prior to the committal of the case to the court of sessions.

The court opined that the Official Secrets Act is a complete code in itself. By virtue of section 4(2) Cr.P.C., the general procedural law contained in the Code of Criminal Procedure, 1973 regulates the investigation, inquiry or trial of offence even under this special law, the same, however, to be read and applied as modified by the special law to the extent noted above.

The court rejected Petitioner's claim which challenged committal or case to sessions court without any prior inquiry by noting that section 323 of C.R.P.C. casts no obligation on the Magistrate to record evidence before the case is committed to the court of sessions.

The court also rejected the claim of CBI by holding that presenting the report under section 173 of the Code is mandatory even when complaint is filed under section 13 of the Official Secrets Act. The court observed that The Official Secrets Act, however, does not create or establish its own investigative machinery. It is inherent in this scheme of things that the complaint submitted by the empowered public servant, under authority from the appropriate government, would be based, in turn, on the material (or evidence) which has been gathered by the police that had registered the cognizable offence under the Official Secrets Act.

It was also clarified that submission of such report under Section 173 Cr.PC does not mean the police would have no power to undertake such further investigation‖ as may be deemed necessary in terms of Section 173(8) Cr. PC. The law gives such authority to the police and recourse to such power can always be made if the facts of a particular case so demand.

While passing its order, the court observed that there is a need to amend the provision contained in Section 13 of the Official Secrets Act at the earliest. The law was enacted in 1923. The expression District or Presidency Magistrate‖ has outlived its utility. 

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