Citations: 2007 CriLJ 3601, 142 (2007) DLT 167
Case Type: Criminal
Decided On: 31 May, 2007
Petitioner: Kulbhushan Parasher
Respondent: State through CBI
Bench: S R Bhat
Statutes Referred:
Section 3 in The Official Secrets Act, 1923
The Indian Penal Code
The Official Secrets Act, 1923
Section 5 in The Official Secrets Act, 1923
The Navy Act, 1957
Facts:
- The applicant is accused of getting committed offences punishable under Sections 3 and 4 of the Official Secrets Act, read with Section 120-B, Indian legal code, 1860.
- According to allegations, the Indian Navy found that sensitive and classified information was being leaked. to determine the source and extent of leakage of classified informations, the Indian Navy constituted a Board of Inquiry. On the idea of findings of the court of inquiry and therefore the board of inquiry, Sambajee Lal Surve of Indian Air Force Capt. Kashyap Kumar, Commander Vijender Rana and Commander V.K. Jha were dismissed from the services.
- Apparently, the names of some private persons including retired defense officers also figured during the inquires, against whom action wasn’t possible under inter alia the Navy Act. The Central Government referred the interest Central Bureau of Investigation (CBI) for initiating criminal proceedings against all the involved persons.
- The CBI registered case NO. RC 2(A)/2006/ACU-IX/CBI/ New Delhi on 20.03.2006 under Section 120-B IPC & Section 3(1)(i) and 5 of the Official Secrets Act, 1923. consistent with allegations within the FIR, reliable information was received from the Ministry of defense that the then commanding officer Sambhajee L. Surve of India Air Force, the then Commander Vijender Rana, the then Commander Vinod Kumar Jha, the then Captain Kashyap Kumar, all of the Indian Navy, in collusion with private persons, inter alia, the applicant Kulbhushan Parashar, Ravi Shankaran, commanding officer (Retired) S.K. Kohli, Mukesh Bajaj, Ms. Rajrani Jaiswal and unknown person of a communication company called “Atlas” conspired to unathorizedly trade classified documents/ informations concerning Ministry of defense, Central Government, which, if disclosured was likely to affect the sovereignty of India. During investigation, CBI conducted searches, under Section 11(2) of the Official Secrets Act.
- Six persons, including the applicant were arrested in April, 2006; an accused, Ravi Shankaran, who allegedly conspired with them, couldn’t be arrested, as he was out of the country. His passport was revoked and therefore the Central Government, is making efforts to possess him brought back.
Issues Involved:
- It was alleged that investigations established that for the aim of collecting and obtaining sensitive information concerning safety, secruity and sovereignty of the state , accused petitioner Kulbhushan Parashar and Ravi Shankaran in conspiracy with one another allured the serving defense officers, namely, SL Surve and Vijender Rana by way of providing them with gifts and allurements in cash and type .
- In furtherance of the conspiracy, the petitioner purchased and provided and provided pen drives to SL Surve and Vijender Rana, for the aim of enabling them to repeat sensitive information concerning national security from secured computer systems of Navy and computers of Air force. The petitioner, acting during a manner prejudicial to the security and interest of the State, caused the gathering and receipt of sensitive information unauthorisedly by way of 3603 pages of data during a Pen – drive, which was recovered from accused SL Surve and 3264 pages in “Jet” Flash Pen-drive, which was recovered from accused Vijender Rana also as by way of exchanging e-mails with the intension to market his business interests.
- The appellant was charged under Section 120-B IPC for criminal conspiracy, Section 3(1) for putting the security of the state in peril , and Section 5 for communicating and spending on information and documents putting the state’s interests at stake. While investigating the CBI had also conducted searches under Section 11(2) of the Act because the case appeared to be of great emergency.
Observations/Obiter Dicta
- No doubt, in the said judgment, the Honble Supreme Court does observe that Section 14 of the OS Act which gives the additional power to the court trying the case under OS Act to hold the proceedings in camera, does not in any way hamper or take away from the right of the accused from being supplied the statements of the witnesses and copies of the documents which were collected during the course of investigation by the IO, but in a State case, as is the present case, when Section 201 CrPC becomes applicable, it is the provisions of Section 173 CrPC together with the object which was in the minds of legislators that has to be kept foremost in one?s mind before all these Sections are given effect to.”
- As regards the CBIs application, the following order was passed by the learned CMM partly allowing the request:
I also find it worth mentioning that vide the present application, the CBI prayed that the Board of Inquiry report of Indian Navy dated 24.8.05 and Board of Inquiry report of Indian Air Force dated 25.5.05 be also not supplied to the accused persons [mentioned at item No. 3 & 4 Annexure (1)]. Ld. PP for CBI had intimated to the Court vide an application moved on the last date of hearing that the writ petition preferred by accused S L Surve requesting the court to direct the Air Force Authority to provide him the Board of Inquiry Report has been allowed to the extent that the Air Force Authorities have been directed by the Honble High Court vide order dated 8.5.07 to furnish to the accused/petitioner Sh S L Surve the report of the Board of Inquiry held against him excluding such portions from the same as are considered to be sensitive from the security point of view and the decision of the Chief of Air Force regarding the portions of Board of Inquiry Proceedings to be withheld from the accused/petitioner therein shall be final and binding on the petitioner. Keeping this mandate of the Honble High Court in mind, I allow the application of the CBI in part, directing the CBI :
To supply the Board of Inquiry Reports (Both Navy & Air Force) mentioned at item no. 3 & 4 of the Annexure (1) to the accused persons excluding such portions from the same as are considered to be sensitive from the security point of view after consulting the matter with the Chief of Air Force and Navy as to the portions which are to be excluded.
The decision of the Chief of Air Force and Navy shall be final and binding upon the accused. The CBI shall ensure that the said Inquiry Reports are supplied to the accused persons after preparing the requisite sets thereof excluding the sensitive portions as aforementioned.
The statement of witness Manish Kumar under section 161 CrPC and 164 CrPC be supplied to the accused persons excluding the portions thereof which in the opinion of the Investigating Officer/Prosecution would be inexpedient to be supplied to the accused persons.
The remaining 23 Items comprising of reports and the letters which contain sensitive and classified information need not be supplied to the accused persons but any covering letter in which the detailed sensitive information does not find a mention and the supply of which, is not likely to affect the safety and security of the country, be however given.
Thereafter by an order dated 18th November 2008, the learned ASJ declined the request of A1 and A5 “for supply of documents which are part of the judicial record but have not been supplied to the accused persons as disclosure of the same is prejudicial to the safety and security of the state.” It was held by the learned ASJ as under:
“The Naval Authorities vide its letter dated 27.07.2007 had written that Competent Authority had considered the matter in its entirety and decided that Subject Board of Inquiry Report be not made available to the accused persons as it contains sensitive information, the disclosure of which could affect the security of the country. It had however, opined that copy of COP letter No. DL/3599/1237, dated 21.04.2006 may however, be supplied to the accused persons.”
Rationale:
There are several circumstances which clear appear to attach the applicant with the incriminating features, like evidence of his being instrumental in giving or offering illegal gratification; his being recipient of classified information through e-mail and chatting, and also his supplying the unauthorized pen drives to copy sensitive and forbidden information, which were passed on to him.
Judgement:
- The charge sheet in this case has defined the role of the petitioner, as one of the conspirators who connived with the serving officers. The latter passed on information to the applicant, through pen drives bought by him. The pen drives were used by the serving officers on official computers, which was irregular; classified information was copied and passed on. Apart from this link, the other allegation is that the petitioner was involved in passing on illegal gratification and favours to the co-accused, in exchange for the information. Additionally, it is alleged that the applicant also received such classified information through e-mail and internet chatting, with other co-accused. Although the applicant has sought to raise a doubt about the genuineness of a pen drive, stating that the possibility of its being tampered cannot be ruled out, yet the prosecution states that a clone file was created, which was worked upon, and not the contents of the pen drive.
- In considering applications for bail, apart from the period of custody or detention, which is a relevant circumstance, other factors, such as the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; Prima facie satisfaction of the court in support of the charge, have to be considered by the court. In the present case, there are several circumstances which prima facie appear to connect the applicant with the incriminating features, such as evidence of his being instrumental in giving or offering illegal gratification; his being recipient of classified information through e-mail and chatting, and also his supplying the unauthorized pen drives used to copy sensitive and forbidden information, which were passed on to him.
- On an overall conspectus of the facts, and having regard to the severity of the offences and allegations, I am of the considered view that it would not be appropriate to grant bail to the applicant. In these circumstances, the application has to fail; it is accordingly dismissed.
Conclusion:
It was said that to acquire information on the security and security of the state, the petitioner, Kulbhushan Parashar, and Ravi Shankaran enticed defence officers, SL Surve and Vijender Rana by paying them in cash and type for acquiring the sensitive information. 6 persons alongside the applicant were arrested in April 2006.
The pen drive which had all the sensitive information was also recovered from the accused. The court considering the severe nature of the offenses and allegation that was made on accused refused the grant of bail to the accused.
Prepared by Anushka Choudhary