Case Type: Criminal
Case No: Case No.58/2010
Decided On: 22nd January, 2016
Petitioner: State
Respondent: Madhuri Gupta
Bench: Pratibha Rani, J
Statutes Referred:
Section 3(1) in the Official Secrets Act, 1923
The Official Secrets Act, 1923
Section 222 in the Code of Criminal Procedure, 1973
State Of Madhya Pradesh vs Mohanlal Soni on 19 July, 2000
Section 120B in The Indian Penal Code
Cases Referred:
State of Maharastra Etc. Etc. Vs. Som Nath Thapa
Karnataka Vs. L. Muniswamy, 1977(3) SCR 113
State of West Bengal Vs. Mohd. Khalid, 1995 (1) SCC 684
State of M.P. v. Mohanlal Soni
State of M.P. v. Mohanlal Soni (2000) 6 SCC 338
Facts:
- It was alleged that she revealed certain classified information to Pakistani officials and was in-tuned with two ISI officials, Mubshar Raza Rana and Jamshed.
- According to the blotter filed in July 2010, Gupta was involved during a relationship with Jamshed whom she planned to marry. She used to communicate with Jamshed who had a code name ‘Jim’.
- The diplomat was employing a computer installed at her residence in Islamabad and a Blackberry phone to be in-tuned with the 2 Pakistani spies, it said.
- Gupta, however, had refuted all the allegations levelled against her and had submitted that the said information isn’t sensitive and therefore the alleged act of passing on information concerning country’s internal security to the ISI “cannot be read as associated with work of defence” under Section 3 of the Act.
Issues Involved:
- The respondent Madhuri Gupta is facing trial in Sessions Case No.58/2010 before the learned ASJ just in case FIR No.21/2010 under 3/4/5 of Official Secrets Act r/w Section 409/120-B IPC.
- his revision petition has been filed by the State impugning the order dated 07.01.2012 whereby the respondent/accused was ordered to be charged for committing the offence punishable under second a part of Section 3(1) of Official Secrets Act attracting maximum punishment up to a period of three years.
- The grievance of the State is that on the idea of fabric on record, the respondent/accused should are charged for the offence punishable under first a part of Section 3(1) of Official Secrets Act attracting maximum punishment up to a period of fourteen years.
- With the impugned order the honourable ASJ rejected the contention made on behalf of the State i.e. to charge the respondent/accused under part of Section 3(1) of Official Secrets Act which attracts the maximum punishment up to a period of fourteen years.
Observations/Obiter Dicta: .
In the case State of Maharastra Etc. Etc. Vs. Som Nath Thapa Etc. JT 1996 (4) SC 615, one of the question of law to be examined by the Apex Court was “When can charge be framed?”. After reproducing Sec. 227, 228 in so far as session trial is concerned and Sec. 239, 240 relatable to the trial of warrant cases and section 245 (1) & (2) qua the trial of summon cases, in para 29 to 33 of the judgment it was held:-
Before adverting to what was stated in Antulay’s case, let the view expressed in State of Karnataka Vs. L. Muniswamy, 1977(3) SCR 113 be noted. Therein, Chandrachud, J. (as he then was) speaking for a three Judge Bench stated at page 119 that at the stage of framing charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person’s liberty substantially, need for proper consideration of material warranting such order was emphasised.
What was stated in this regard in Stree Alyachar Virodhi Parishad’ case, which was quoted with approval in paragraph 79 of State of West Bengal Vs. Mohd. Khalid, 1995 (1) SCC 684 is that what the Court has to see, while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be inquired into.
In Antulay’s case, Bhagwati, CJ, opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of “prima facie” case has to be applied.
According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence.
Let us note the meaning of the word “presume”. In Black’s Law Dictionary it has been defined to mean “to believe or accept upon probable evidence”. (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law “presume” means “to take as proved until evidence to the contrary is forthcoming”, Stroud’s Legal Dictionary has quoted in this context a certain judgment according to which “A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged.” (Emphasis supplied). In Law Lexicon by P.
Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.
The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists.
To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage.”
In the case State of M.P. v. Mohanlal Soni (2000) 6 SCC 338 the Hon’ble Supreme Court has held as under:
The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.”
Rationale:
The Official Secrets Act, 1923, deals broadly with the difficulty of spying and putting the country’s confidential details in danger of revelation. This act divides secret information into official codes, passwords, sketch, plan, model, article, document, etc., but it doesn’t define what a “secret” document is. With time, debates have arisen on whether to review, amend, or repeal.
The Law Commission in 1971, in its report on ‘Offences against National Security’, observed that each secret document shouldn’t attract the provisions of this Act unless it’s of national emergency. But they didn’t suggest any changes. Where the Second Administrative Reforms Commission (ARC) wanted to urge the Act repealed and included during a a part of the National Security Act. The Official Secrets Act was said to be against the ideals of a transparent government during a democratic society.
Judgement:
Section 222 of Code of Criminal Procedure provides:
When offence proved included in offence charged – (1) when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.’
So, as per Section 222 Cr.P.C., though after being charged for graver offence if ultimately the graver offence is not proved, the accused can be convicted for minor offence, converse is not possible. At the stage of framing of charge, the learned Trial Court could not have examined the evidence as if he was appreciating the evidence for purpose of conviction either under first part or under second part of Section 3(1) of Official Secrets Act. The material placed by the prosecution supported with opinion Annexure P-1 was prima facie sufficient to frame charge against the respondent/accused under first part of Section 3(1) of Official Secrets Act attracting maximum punishment up to a period of fourteen years.
Since learned counsel for the respondent/accused has already conceded to above extent and material on record also justifies framing of charge against the respondent for the offence punishable under first part of Section 3(1) of Official Secrets Act attracting maximum punishment up to a period of fourteen years, the impugned order dated 07.01.2012 is set aside to the extent that respondent/accused has been ordered to be charged under second part of Section 3(1) of Official Secrets Act attracting maximum punishment up to a period of three years.
The respondent/accused shall be charged for the offence punishable under first part of Section 3(1) of Official Secrets Act attracting maximum punishment upto a period of fourteen years. After the charge is amended, the learned Trial Court shall give due opportunity to the respondent/accused to recall the witnesses already examined for further cross examination if the respondent/accused feels the same necessary to defend herself.
It is made clear that learned ASC for the State has already assured the respondent/accused that after being charged for a graver offence, the State would not pray for cancellation of her bail on this ground.
Criminal Revision Petition No.255/2012 stands allowed in above terms.
A copy of this order be sent to the learned Trial Court for information and compliance.
As prayed, copy of the order be also given dasti to learned counsel for the parties.
Conclusion:
- In this case, the Second Secretary (Press & Information) at the Indian High Commission, Islamabad, Madhuri Gupta, was charged for keeping unethical contact with Pakistani intelligence officials, spying, and delivering sensitive information electronic means. Emails were found to her addressing her in name for passing information of certain hydroelectric power projects in Jammu and Kashmir.
- She had also passed the knowledge on officers of defence from the Ministry of External Affairs, High Commission of India and their families putting the country, country’s security, officers and their families in grave danger.
- The seized gadgets that were bought in her name had shown the exchange of email and therefore the contact that she maintained with several ISI personnel. The court held her for offenses under Section 3, for spying, Section 3 (1)(c), for communicating and exchanging special and tip with an enemy, and Section 120-B of the Indian legal code , 1860, for being a celebration to a criminal conspiracy.
- Even after requesting for a forbearing punishment, the court had denied her kindness for it had been expected out of her to act more responsibly and respect her high position of trust, but her wrongdoings had put the entire country in peril. The special judge had absolved her from being convicted under the primary a part of Section 3(1) (c) but she was held guilty and sentenced to three years in jail.
Prepared by Anushka Choudhary