R.B. Misra, J.@mdashThe petitioners have preferred the present criminal writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure with the following prayers:-
a) Issue an appropriate writ, order or direction to release the petitioners from the judicial custody forthwith and immediately as the petitioners have been in judicial custody without they being charged with any offence or without facing the trial which is illegal, arbitrary and unconstitutional not to mention the same is not sustainable in law or on facts; b) Issue an appropriate writ, order or direction to the effect that in the meanwhile the petitioners may be released on bail till the present writ petition is pending adjudication on the records of this Hon''ble Court; c) Issue an appropriate writ, order or direction to the concerned authorities or to the police authorities to get the petitioners medically examined; d) Without prejudice to aforesaid, in the alternative issue an appropriate writ, order or direction whereby, directing the respondents and especially the State Government to come out with and pass a Notification which will be published in the Official Gazette which will specifically and specially empower the court of Ld.JMIC or for the matter any court in the State of Himachal Pradesh which can deal and try the offences under the Official Secrets Act, 1923 in consonance with the Central Government as provided u/s 13(1); e) Without prejudice to aforesaid, in the alternative issue an appropriate writ, order or direction whereby directing the State Government to file the complaint afresh in consonance with the Central Government in terms of Section 13(3) of the Act;
2. The facts, in brief, are that the Police Station, CID, Bharari, Shimla, received information that accused Bhagwan Dass, a retired army person used to send secret information regarding defence matters of the country to a foreign agent in lieu of money. The police party headed by SHO, Tenzin Shashni, reached at Kangra on 26.1.2011 and intercepted him at Jawalamukhi and recovered one diary from his house in presence of large number of respectable persons of the village. The diary contained 389 pages in which from page 107 to 209 secret information regarding defence matters of the country are mentioned. The conversation of petitioner No. 1 from his Mobile No. 94187-95867 was trapped while talking on Mobile No. 94149-89321 of a foreign agent. Petitioner No. 2, namely, Ghanshyam Guleria, a retired Subedar Major Honorary Caption claiming to be deployed in Welfare Cell at Army Quarters, New Delhi, after collecting secret defence information of army, was also passing the same to foreign agent in lieu of salary being received through ''Hawala Transaction'' and in that respect the accounts/details of receipt of money were also collected by the police officials. Petitioner No. 3/Amrik Singh was also involved in receiving money for sending secret information (pertaining to the Defence of the country) to his co-accused Bhagwan Dass and Ghanshyam Guleria and the money received in lieu thereof was being deposited in his bank account.
3. FIR No. 2 of 2011 dated 27.1.2011 was lodged against all these three accused-petitioners for the offence under Sections 3, 5 and 9 of the Official Secrets Act, 1923. Amrik Singh/petitioner No. 3, was arrested on 29.01.2011 u/s 120-B of the Indian Penal Code, whereas, petitioner No. 1 was arrested on 27.01.2011.
4. During investigation, it was revealed that petitioner No. 1 had received Rs. 14,000/- in his son''s account and petitioner No. 3 had deposited Rs. 8,000/-+ Rs. 6,000/- in account of Rajesh, son of petitioner No. 1. It also came into light that petitioner No. 3 had also deposited a sum of Rs. 6,000/- in account of petitioner No. 2. Petitioner No. 3/Amrik Singh, moved a bail application No. 52-D/XXII/2011 on 17.2.2011 before learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, which was rejected on 25.3.2011. Cr.M.P. (M) No. 414 of 2011 by petitioner No. 3 was also rejected by High Court of Himachal Pradesh vide judgment dated 28.06.2011 with liberty to the petitioner to apply to move again in accordance with law. In the meantime, case was committed to the Court of Sessions vide order dated 21.5.2011, which however, was remanded back to the Court of Judicial Magistrate 1st Class, Kangra (in short called as JMIC) vide its order dated 2.7.2011 of learned Additional Sessions Judge (II) Kangra at Dharamshala. These two orders dated 21.5.2011 as well as 2.7.2011 however have not been placed on record. The case was again committed to the Sessions Court vide order dated 26.7.2011 of Ld.JMIC, Kangra-II Kangra, whereas, learned Additional Sessions Judge (II), Kangra while setting aside the above order dated 26.7.2011 vide its order dated 25.8.2011 (passed in Sessions Case No. 21-B/2011), has remanded and relegated back the case to the Court of Ld.JMIC(II) Kangra, again directing him to proceed further with the complaint from the stage of Section 200 Cr.P.C. In reference to the above order dated 25.8.2011, Ld.JMIC vide its order dated 12.10.2011 has again given liberty to the complainant to seek clarification from the State Government or Department concerned regarding special empowerment to deal such case by a particular court, Ld.JMIC further directed the matter to be listed on 22.2.2011.
5. The State Government, not the petitioners, however, being aggrieved by judgment and order dated 25.8.2011 has preferred writ petition before this Court which is said to be pending adjudication and likely to be taken on 12.1.2012. The following submissions have however been made for and on behalf of the petitioners:-
(i) The petitioners were arrested in the month of January, 2011 and even after long lapse of time of more than 11 months, no charge-sheet has been submitted against them.
(ii) The Government of India vide order dated 4.4.2011 has authorized Dy. S.P. (Crime) Shimla, to make complaint in the present case against the petitioners in reference to the offences under Sections 3, 5 and 9 of the Official Secrets Act, 1923 read with Section 120-B IPC. Whereas, the Central Government is not competent to give authorization in reference to the offence u/s 5 of the Official Secrets Act, 1923.
(iii) The State Government could issue authorization for offence u/s 5 of the Official Secrets Act, 1923 and for other offences, it is the Central Government, who has been empowered to issue authorization.
(iv) In reference to provisions of Section 13(3) of Official Secrets Act, 1923, the State Government has not issued any Notification authorizing Judicial Magistrate 1st Class or has not empowered Magistrate of 1st Class, to deal the case of Official Secrets Act. In absence of any such authorization having been issued the Sessions Court has no jurisdiction to deal the cases of the petitioners. In absence of non-authorization to a specific Judicial Magistrate 1st Class, the cases under Official Secrets Act cannot be committed to the Sessions Court automatically by virtue of Section 13(1) of the Official Secrets Act, 1923. In view of Section 13(4) of Official Secrets Act, the authorization in relation to Section 5 of Official Secrets Act (not connected with the prohibited places or with foreign power) has to be issued by the State Government only. In connection with the other offences other than Section 5 of the Official Secrets Act, authorization could have been issued by the Central Government in view of Section 13(5)(b) of Official Secrets Act.
6. It appears that the petitioners are not aggrieved, as such, have not challenged any of the orders, namely, order dated 25.3.2011 rejecting bail application of petitioner No. 3 and order dated 25.8.2011 of learned Additional Sessions Judge, rather petitioners are aggrieved by non submission of charge-sheet as well as non releasing them on bail.
7. It has been argued by Sri Shivank Singh Panta, Ld. Advocate, on behalf of the petitioners that in absence of non issuance of Notification by the Central Government or State Government authorizing Judicial Magistrate, 1st Class to deal the cases of offences under Indian Official Secrets Act, 1923, the petitioners cannot be tried by a Court having no jurisdiction. To strengthen his submissions, learned counsel for the petitioners, has referred and relied upon the decision of
9. On a question of fact, the learned Advocate General very fairly and frankly conceded that in terms of Section 13(1) of the 1923 Act the appropriate Government has not issued any Notification or any order empowering specially any Magistrate, or for that matter any Court to try the offences punishable under the 1923 Act. According to the learned Advocate General neither the Central Government nor the State Government has issued any Notification or any order in terms of the 1923 Act empowering any Court or any Magistrate of any type to try the offences under this Act. In other words, no Court in the State of Himachal Pradesh has been specially empowered by the order of any appropriate Government to try any person for committing offences under the 1923 Act. On a question of fact, it is also undisputed case of the parties and has been stated so very fairly and frankly before me by the learned Advocate General that neither the Court/of Additional CJM, Sundernagar nor the Court of learned CJM, Mandi was empowered by any appropriate Government in terms of Section 13(1) of the 1923 Act to try the petitioner-accused or for that matter any accused, for committing any offence under the 1923 Act.
8. For convenience Section 13 of the Official Secrets Act, 1923 is extracted as below:-
13. Restriction on trial of offence:-(1) No Court (other than that of a Magistrate of the First Class specially empowered in this behalf by the Appropriate Government), which is inferior to that of a District or Presidency Magistrate, shall try any offence under this Act.
(2) If any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed, claims to be tried by the Court of Sessions, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that Court, notwithstanding that it is not a case exclusively triable by that Court;
(3) No Court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the [Appropriate Government] or some officer empowered by the [Appropriate Government] in this behalf.
(4) For the purpose of the trial of a person for an offence under this Act, the offence may be deemed to have been committed either at the place in which the same actually was committed or at any place in [India] in which the offender may be found.
In this section, the appropriate Government means-
(a) in relation to any offences u/s 5 not connected with prohibited place or with a foreign power, the State Government; and
(b) in relation to any other offence, the Central Government].
9. Mr. Sandeep Sharma, learned Assistant Solicitor General of India, on our request, has rendered assistance stating that Section 13 may be read in two parts, firstly a Magistrate of First Class specifically empowered by the State Government shall deal with the offence of Indian Official Secrets Act then that particular Court/Magistrate will deal with the cases and no other Court. Secondly, no Court which is inferior to that of a District or Presidency Magistrate, can try any offence under Indian Official Secrets Act, however, such provision does not debar a Sessions Court to deal the offences as indicated above, as in any condition learned Sessions Court is superior to the District or Presidency Magistrate. Mr. Sandeep Sharma while inviting attention of this court to the two decisions of Delhi High Court (DB) in
10. Mr. R.K. Sharma, leraned Senior Advocate-cum-Senior Additional Advocate General has also reiterated the same interpretation of Section 13 as has been submitted by Mr. Sandeep Sharma, learned ASG and has further submitted that the judgment/order dated 25.8.2011 of learned Additional Sessions Judge (I) Kangra has been challenged by the State Government which is pending adjudication before this Court, however, the present writ petition has to be adjudicated finally by this Court as the issue involved in the present case is no more res integra in view of the two above mentioned decisions of Delhi High Court (DB). The above two judgments squarely cover the issue of present petition in absence of any precedence. Whereas, the judgment in Syed Khushahnad Anwar Naqvi (supra) was passed in reference to the concession of Learned Advocate General which cannot be the precedence and cannot be guiding factor to deal the case of the present petitioners.
11. For convenience, the relevant paragraphs of N.G. Seth Vs. CBI (supra) are extracted as below:-
8. Section 13(1) of the OS Act makes reference to the District or Presidency Magistrate. A perusal of the Table will show that Presidency Magistrate were at the second tier in the hierarchy of courts contemplated in the old Cr.P.C at the time when the OS Act came into existence. This grade of magistrates stands abrogated in the current Cr.P.C., on the promulgation of which appropriate changes ought to have been simultaneously carried out in Section 13(1) of the OS Act. Had this exercise been undertaken at the relevant time, the conundrum before us would not have manifested itself now. Unfortunately this exercise has been overlooked, and thereby the formidable task pertaining to the interpretation of the statute has to be completed by us. Not the least of these difficulties is to determine whether or not the posts of District Magistrate and Presidency Magistrate are mirror posts in the present procedural dispensation, as are to be found in the extant Cr.P.C. We have perforce to revert to Section 3 of the Cr.P.C. 1973 which clarifies that, unless the context otherwise requires, any reference in any enactment passed before 1973 to a Presidency Magistrate or a Chief Presidency Magistrate shall be construed as a reference, respectively, to an MM or the CMM.
10. The interesting yet intricate question which is in our hands has already engaged the energies and attention of three Single Benches of this Court.
11. Penalties for spying are prescribed in Sections 3 and 5 of the OS Act and are in two categories only--(i) imprisonment which may extend up to 3 years and/or with fine or (ii) up to 14 years. Under the old Code the first category of offences were triable even by a Magistrate of the second class; the present CrPC prescribes that such offences shall be triable by any Magistrate. In other words Section 13(1) of the OS Act disables the Magistrate Courts from trying espionage cases. This provision further generally disables even the next rung of Courts, namely, Magistrates of the First Class or MMs, from exercising jurisdiction inasmuch as special empowerment is required to be infused into them by the appropriate government for them to enjoy or attain competency. Mr. Luthra has unduly laid great store on the decision of a learned Single Judge of the Himachal Pradesh High Court reported as
12. Our learned Brother, Badar Durrez Ahmed, J. while following Larkins has perspicuously analyzed the law in Rachna Singh v. State of NCT of Delhi decided on 31.5.2006. the ASJ had upheld the sentence of seven years rigorous imprisonment but in Revision the conviction and sentence was set aside by Ahmed, J. holding that since the maximum sentence was up to 14 years, only the Court of Sessions was competent to try the case. In Saimuddin v. State decided by our learned Brother P.K. Bhasin, J. both the earlier decisions of Larkins and Rachna were applied.
14. We have already reproduced Section 13 of the OS Act, which regretfully, can be read in diverse and disparate manners. Ignoring the parenthesis found therein, the section could indicate that no Court other than that of a Magistrate of the First Class specially empowered in this behalf y the appropriate Government can try any offence under the OS Act. The use of the phrase ''other than'' confounds the task interpretation. An analysis of these words can be found in Fowler''s Modern English Usage which records that their use is a matter which records that their use is a matter which cannot be resolved. The Cambridge Guide to English Usage by Pam Peters states that �other� is historically an adjective meaning �second� or �alternative�. The Random House Dictionary ascribes as many as twelve meanings to the word ''other'' including additional or further, different. The Concise Oxford Dictionary speaks of the use of the word ''other'' to refer to �a person or thing that is different from one already mentioned or known; alternative of two; those not already mentioned. The word could also mean additional or that which is distinct from, different from, or opposite to something or oneself�. Collins Cobuild English Dictionary for advanced Learners contains fifteen connotations of the word ''other'' which include - �You use nothing other than and no other than when you are going to mention a course of action, decision, or description and emphasize that it is the only one possible in the situation�. The same Dictionary then states- �You use other than after a negative statement to say that the person, item, or thing that follows is the only exception to the statement.� The American Heritage � Dictionary defines ''other than'' as - �with the except of; except for; besides�. We have gone into considerable depth on the meaning of the word ''other'' because we were of the opinion, at first blush, that the opening words of the section appear to indicate that it is a Magistrate of the First Class, specially empowered in this behalf by the appropriate Government, who can alone or exclusively try offences under the Act. This is also what learned Counsel for the Petitioners would have us hold; but is contrary to the administrative decision of this Court which has been resolutely defended by the learned Additional Solicitor General. However, the use of the negative word ''no'' at the very commencement of the section is a pointer to the position that the section specifies that there is only one exception, viz., the specially empowered Magistrate of the First Class, to the normal appointment, namely, a Court nor inferior to a District or Presidency Magistrate. In other words, the appointment and empowerment of the Magistrate of the First Class is an exception to the rule.
15. The use of punctuations such as brackets/parenthesis endeavours to achieve the same outcome, namely, to clarify that an MM of the First Class can be specially empowered to try cases under the OS Act although this ought not to be the usual practice. The English Cobuild Dictionary defines parenthesis as a pair of curved marks that are to be put around the numbers to indicate that they are additional, separate, or less important. The 21st Century Dictionary speaks of parenthesis as a �digression�. American Heritage � Dictionary defines parenthesis as �(a) a qualifying or amplifying word, phrase or sentence inserted within written matter in such a way as to be independent of the surrounding grammatical structure and (b) a comment departing from the view of discourse; a digression�. Fowler''s Modern English Usage explains that parenthesis interrupts the flow of a sentence, generally in order to explain or elaborate on something just written and because they are interruptions, parenthesis should be kept short. A Guide to Punctuation and its allies by Eric Partridge, John W. Clark inter alia status- �The essence of all parentheses is that, without them, the sentence is grammatically and logically complete: they explain or modify, but they do not determine the sense. ''The test of a parenthesis is whether the other words make sense without it'' (Charles C. Boyd, Grammar for great or small, 1928): If they do not, either the whole or a part of the parenthesis should be removed from within parenthesis�. The New Oxford American Dictionary states the meaning of parenthesis as - �A word, Clause or sentence inserted as an explanation or afterthought into a passage that is grammatically complete without it, in writing usually marked off by curved brackets, dashes, or commas�. Therefore, essentially the flow of Section 13 of the OS Act is to the effect- �No court which is inferior to that of a District or Presidency Magistrate shall try any offence under this Act�. The reference to the Magistrate of the First Class connotes and indicates the exception to the rule. Therefore, in normal course offences under the OS Act are to be tried by a Court which was not inferior to the erstwhile District or Presidency Magistrate. Magistrates of the First Class would have jurisdiction only in the event of their special empowerment by the appropriate government. Since a state of vacuum is always a abomination, common sense dictates that a Court higher in status to that of an MM or Magistrate of the First Class, should ordinarily exercise jurisdiction over alleged offences under the OS Act.
16. Rules of interpretation of statutes inter alia recommend that each and every word found in any legislation should be given a meaning; that words should not be introduced by the Court into the section so as to give it a particular meaning, unless no sense whatsoever can be derived from the statutory provision as it stands. In practical terms these rules of statutory construction obviate the possibility of a Judge imparting a meaning or interpretation to legislation in keeping with his own preference or thinking, rather than that of the Legislature. �A judge must not alter the material of which the Act is woven, but he can and should iron out the creases� -Lord Denning in Seaford Court Estates v. Asher (1994) 2 All ER 155. Approbation of this approach can be found in
17. Section 13 of the OS Act could also be read simply to mandate that no Court inferior to that of a District of Presidency Magistrate shall try any offence under the Act. There are several similar provisions that can be found such as, to give only a few examples, Section 142(c) of the NI Act (supra), and also Section 26(2) of the Securities and Exchange Board of India Act, 1992 (SEBI), which we shall advert to when we analyse the very recent decision of a Division Bench of this Court reported as Mahender Singh v. High Court of Delhi 148 (2008) DLT 391 (DB). The SEBI provision previously prescribed that no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the First Class could try an offence punishable under that Act. Consequent upon the 2002 Amendment, Section 26(2) now reads that - �No Court inferior to that of a Court of Session shall try any offence punishable under this Act.�Section 511 of Schedule-II of the old CrPC dealt with offences under other laws, which enabled a Second Class Magistrate along with the Court of Sessions, Presidency Magistrate or Magistrate of the First Class to try any offence punishable for one year and upwards but less than three years. The Legislature was mindful of this position and obviously was of the view that offences under the OS Act should be entrusted for trial to a senior and experienced Judge of the level of at least a Presidency Magistrate. It is with this intent in mind that Section 13 states, in a fashion akin to the NI Act or the SEBI Act, that no Court inferior to that of the Presidency Magistrate can try offences under the OS Act. At the same time the Legislature thought it prudent to carve out an exception to this general rule, conceivably because the Presidency Magistrate may, at a given point of time, be inundated with dockets. The exception that was created by the Legislature was the Magistrate of the First Class, but since he was ''inferior'' to the Presidency Magistrate, he would have to be specially empowered by the appropriate government in this regard. Once this understanding of the section is preferred, none of the words contained therein are required to be ignored.
18. We have already observed that the CrPC, 1973 has abolished the tier of Presidency Magistrates. Section 3(3) states that the context otherwise requires any reference in any enactment passed before the commencement of this Code to a Presidency Magistrate shall be construed as a reference to a Metropolitan Magistrate. In the case in hand, keeping the annals of the OS Act in perspective, we are of the view that the context requires us not to equate Presidency Magistrate with that of Metropolitan Magistrate. Since the extant CrPC has eliminated from the then existing hierarchy of Courts Judges occupying the tier of Presidency Magistrate, we reiterate that parliament ought to have simultaneously incorporated the logical and necessary change in Section 13 of the OS Act by substituting the existing words �which is inferior to that of a District or Presidency Magistrate� by the words �which is inferior to that of a Court of Sessions�. Alternatively, if their resolve was that such cases should henceforward normally be tried by an MM, it should have mentioned so. This would, however, have led to an absurdity since there are no Courts ''inferior'' to that of an MM. We may also reiterate that the use of the parenthesis/brackets is to indicate the creation of an exception either to the preceding word or to the words that follow. Since a Magistrate of the Second Class (under the old CrPC) current code is ordinarily competent to try offences which attract a punishment upto three years, Section 13 has the effect of disabling them from doing so, unless specially empowered by the Central Government to do so. The conclusion, therefore, is that if a Metropolitan Magistrate or under the OS Act he would require special empowerment by the Metropolitan Magistrate/Magistrate of the First Class (Court of Sessions and the High Court in the existing hierarchy of courts) would ordinarily possess jurisdiction in this regard. No intelligent purpose can be achieved by the statutory draftsman in mentioning in Section 13 of the OS Act a particular Court and immediately speaking of a Court inferior thereto so far as jurisdictional powers are concerned.
19. The interpretation of Section 13 to the effect that no Court inferior to the Court of Sessions can ordinarily try cases under the OS Act, and that only a Metropolitan Magistrate who has been specially empowered in this behalf by the Central Government would be competent to try such cases, renders the decisions of Single Benches of this Court in Larkins, Rachna and Saimuddin in harmony with our views. We reiterate our view that on the coming into force CrPC 1973, with the deletion of the Court of Presidency Magistrate, which was earlier sandwiched between the Court of Sessions and the Magistrate of the First Class, and with the separation of the executive and judicial functions which resulted in the emasculation of the powers of the erstwhile District Magistrate, and with a view to give effect to the Legislature''s intentions, it is the Court of Sessions that normally and ordinarily possesses jurisdiction to try cases under the OS Act. It is axiomatic that the MM would not be competent to try these cases unless and until he is ''specially empowered'' to do so. The words ''specially empowered'' cannot be ignored or rendered otiose. The Central Government by virtue of being the appropriate government can always exercise the option of specially empowering any MM or the ACMM/CMM to exercise jurisdiction in these matters.
20. In this analysis we hold that the Court of Sessions shall ordinarily be competent to try any offences under the OS Act unless an MM or a Magistrate of the First Class is specially empowered to try any offence under the OS Act. This implicit in the stand of the Union of India which has supported the administrative decision of this High Court since all that has been carried out by the withdrawal of the Notification dated 6.3.1998 by the impugned Notification dated 21.6.2008 is to divest the MM of powers specially conferred on it by the Central Government to try offences under the OS Act.
25. The Learned senior counsel for the petitioner did not dispute that this judgment went against the plea sought to be advanced by the petitioner, but once again made an endeavour to persuade us to differ from the said view as it did not correctly lay down the legal proposition and thus wanted us to make a reference to a large Bench. Learned counsel also submitted that once the provisions of the Statute were clear, it is only in the manner prescribed by the Statute that act should be done relying upon the observations of the Privy Council in
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
This principle has been re-affirmed inter alia in
12. Subsequently while dealing another similar points, Delhi High Court (DB) on 10.11.2009 in Dr. Narayan Waman Nerukar (supra) has reiterated and affirmed the views as taken in Frank Dalton Larkins and etc. vs. State (Delhi Administration''s) case (supra), and also affirmed the verdict of N.G. Seth and Ors. v. CBI and Ors.''s case (supra).
13. We have carefully perused the documents and heard the arguments of both the sides. Learned counsel for the petitioners has heavily relied upon the decision of Syed Khushahnad Anwar Naqvi (supra), which has not, in fact, led any correct law as the said judgment was in reference to concession of Advocate General of the State of H.P. given at the relevant time when no special empowerment was made authorizing any Judicial Magistrate to deal the case under Official Secrets Act. In those circumstances, on going proceedings in the facts and circumstances of the case, was treated to be nonest. In fact, the question whether any other superior Court such as learned Sessions Court was competent to try the complaint pertaining to the Official Secrets Act neither arose for consideration nor was contemplated earlier in the case of Syed Khushahnad Anwar Naqvi (supra).
In fact, what emerges from Section 13(1) of the Official Secrets Act is that a Magistrate of 1st Class or a Metropolitan magistrate is incompetent to try any offence under Official Secrets Act in absence of special empowerment in its favour. But by no stretch of imagination, it could be inferred that for the offence in which maximum sentence was upto 14 years, the Court of Sessions is not competent to try such offence. The provision of Section 13(1) begins with negative word ''no''. In our considered view it is a point that the provision of Section 13(1) specifies that there is only one exception i.e. specially empowered Magistrate of 1st Class or a Court not inferior to that of a District or Presidency Magistrate, is competent to deal the offence under the Official Secrets Act. To be more explicit, the appointment and empowerment of Magistrate of 1st Class, is an exception to the rule. Section 13(1), therefore, provides that Magistrate of 1st Class could have jurisdiction to deal the offence under Official Secrets Act only in the event of special empowerment by the appropriate Government, however, when State of vacuum is prevailing as in the present case, in absence of any notification of State Government a Court higher in status to that of Metropolitan Magistrate or Magistrate of 1st Class could ordinarily exercise jurisdiction in respect of the offence under Official Secrets Act.
14. In our considered view, we are not approving respectfully the views of Syed Khushahnad Anwar Naqvi (supra) and hereby reiterate and affirm the view of Delhi High Court (DB) taken in N.G. Seth and Ors.(supra) as well as of Delhi High Court (DB) in Dr. Narayan Waman Nerukar (supra). In our considered view if a Metropolitan Magistrate or a Magistrate of 1st Class is to be made competent to try the offence under Official Secrets Act, he would require special empowerment by the appropriate Government but all Courts ''superior'' to that of Metropolitan Magistrate/Magistrate of 1st Class i.e. the Court of Sessions and the High Court in the existing hierarchy of the Courts, would ordinarily possess jurisdiction to deal the cases of the offence under Official Secrets Act. As such learned Court of Sessions shall ordinarily try the offences under Official Secrets Act unless a Magistrate of 1st Class is specially empowered by State Government to try any offence under the Official Secrets Act.
15. Though judgment dated 25.8.2011 of learned Additional Sessions Judge (II) Kangra, passed in Sessions Case No. 21-B/2011 has not especially been challenged but in our considered view the judgment dated 25.8.2011 has not proceeded on correct legal preposition whereby learned Additional Sessions Judge vide its judgment dated 25.8.2011 has relegated back the case to learned JMIC, Kangra. The petitioners have though prayed in present writ petition for appropriate direction to the State Government to come with a notification empowering the Judicial Magistrate 1st Class to deal the cases under Official Secrets Act, where non-issuance of notification will not debar learned Sessions Court to deal the offences under Official Secrets Act. The investigation is yet to be concluded and the charges are yet to be finalized. No specific prayer has been made by the petitioners to quash the First Information Report or the complaint in exercise of our power u/s 482 of the Code of Criminal Procedure. In these circumstances, we are restraining ourselves in making any comment about the merits of cases and offences against the petitioners, however, in peculiar facts and circumstances and keeping in view that the allegations made against the petitioners are to be given final shape, therefore, the prayer for enlarging the petitioners, cannot be granted at present. In exercise of our power under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the prayer of the petitioners for granting bail is rejected without making any comments on the merits of the cases of the petitioners. Accordingly, present writ petition is dismissed.
