W.B. Vs Satyen Bhowmick

Citation: W.B. v. Satyen Bhowmick 1981 AIR 917, 1981 SCR (2) 661

Date of Judgment: January 15,1981

Equivalent citations: 1981 AIR 917, 1981 SCR (2) 661

Case No.: Criminal Appeal No. 368 of 1975

Case type: Criminal Appeal

Petitioner: Superintendent & Remembrancer of Legal Affairs, West Bengal

Defendant: Satyen Bhowmick and Ors.

Bench:

• Hon’ble Justice Fazalali
• Hon’ble Justice Syed Murtaza
• Hon’ble Justice Varadarajan

Court: Supreme Court of India

Statue Referred:

• Official Secrets Act,1923, Section14
• Evidence Act,1872, Section 126

Cases Referred:

• Ramendra Singh v. Mohit Choudhary & Ors, AIR 1969 Cal 535, 1969 CriLJ 1361
• Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr. 1967 AIR, 1 1966 SCR (3) 744

Facts:

• Section 14 of the Official Secrets Act provides that additionally to and without prejudice to any powers which a Court may possess to order the exclusion of the general public from any proceedings if, within the course of proceedings before a Court against a person for an offence under this Act, the prosecution makes an application that publication of any evidence to tend would be prejudicial to the security of the State. The Court may make an order prohibiting the publication of evidence to tend or of any statement to be made within the course of proceedings if it’s of opinion that the proceedings would be prejudicial to the security of the State.
• On the Allegation that the accused had passed on some military secrets to the enemy leading to serious detriment to the security of the country, the accused were charged under Sections 3, 9 and 10 of the Act.
• During the commitment inquiry the prosecution prayed that the accused shouldn’t be allowed to possess access to or tend copies of statements of witnesses recorded by the Magistrate. The defence lawyers were allowed to require notes of the statements of witnesses.
• When the Magistrate asked the defence lawyers to supply their note-books for perusal, they claimed privilege under Section 126 of the Evidence Act on the bottom that they contained certain instructions given to them by the accused which amounted to privileged communication which for this reason they might not be looked into by the Court
• The Magistrate upheld the objection purporting to follow during a one among its earlier decisions. The Supreme Court in a revision filed by the State held that the Magistrate should have taken action against the lawyer for flouting its order by not producing the note-books on the bottom of privilege.
• The provisions of Section 14 of the Act not only could the general public be excluded from the hearing but even the statements of witnesses recorded by the Court couldn’t be made available to the accused or his counsel.
• In appeal to the present Court it had been contended that the opening words of Section 14 really amounted to a non- obstante clause overriding the provisions of all Acts including the Code of Criminal Procedure and therefore it is the mode of trial which is anticipated by Section 14 would take precedence over the mode of trial provided by Section 251-A or Section 252 of the Code and the Magistrate couldn’t only hold the proceedings privately but could exclude publication of any evidence, including the proper of accused to urge notes of the statements recorded during the police work or during inquiry or trial.

Issues Involved:

• The only question arose was to be determined within the present appeal is on the scope and ambit of Section 14 of the Act.

Contention of Petitioner:

The counsel for Petitioner contended that:

1. Mr. Mukherjee, appearing for the State, submitted that there is a close scrutiny of the language employed in Section 14, it would appear that the statute contains two aspects: That no evidence can be made public and that the public should be barred from attending the procedures’ hearing.
2. The advocate cited the case of Ramendra Singh v. Mohit Choudhary & Ors., where the Division Bench of the Calcutta High Court held that, the Act also prescribes a special procedure and thus supersedes the procedure for trial under Sections 251A or 252 of the Code of Criminal Procedure as amended by the Act of 1955.
3. It was also said that this Court interpreted Article 14 in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr., where this Court observed the following when dealing with the issue of having proceedings in camera: “Now that we have enunciated the commonly accepted notion in favour of open trials, we must analyse whether this rule allows for any exceptions.
4. While interpreting the scope and ambit of Section 14, this Court in Naresh Shridhar Mirajkars case (supra) observed as follows:- “It would be noticed that while making a specific provision authorising the court to exclude all or any portion of the public from a trial, Section 14 in terms also recognises the presence of such inherent powers by the opening clause.”
5. It was also said that while it is true that the Act’s offences are very serious, and maintaining secret is essential, this does not justify the government passing an Act depriving someone accused of his or her valuable right to defend, or for that matter, suffocating the defence itself. In R.V. Socialist Worker Printers and Publishers Ltd. & Anr., The importance of holding trial in camera in cases under the Official Secrets Act has been emphasised.
6. Mr. Mukherjee argued that, the above-mentioned opening words of Section 14 had amounted to a non-obstante clause which is overriding the provisions of all Acts, including the Code of Criminal Procedure, and that the mode of trial contemplated by Section 14 would take precedence over the modes of trial provided by Sections 251A or 252 of the Code of Criminal Procedure. We, on the other hand, cannot concur with this extreme approach, which in fact exaggerates the law.
7. It is well established that a non-obstante clause has the unmistakable effect of superseding the provisions of the legislation or the law into which the clause is put.

Contention of Respondent:

The counsel for Respondent contended that –

1. Section 14 does not deprive the Accused of their statutory right to obtain copies of witness statements recorded during the commitment inquiry or police documents or statements, which is conferred on the accused by the Code of Criminal Procedure and the Criminal Rules framed thereunder by various High Courts.
2. Section 14 solely prohibits the public from being excluded from the inquiry’s sessions. There was nothing else the Magistrate could do because he had already granted the accused’s request.

Ratio Decidendi:

The introductory words of Section 14 i.e. “In addition and Without prejudice to any powers which a Court may possess” clearly discloses that the purpose of the legislature was to offer only an enabling additional power to the Court regarding holding of the proceedings privately.

The Legislature never intended that the inherent powers possessed by the Court to carry the proceedings privately in suitable cases should in any way be suffering from Section 14. The intention was merely to offer a further power to Strengthen the hands of the Court for holding the Proceedings privately where the necessities of things demanded.

It’s well settled that a non-obstante clause has the effect of overriding the provisions of a law or of the law during which the said clause is inserted. The non-obstante Clause cannot reasonably be read as overriding anything contained in any relevant existing law which is inconsistent with the new enactment. Normally a non-obstante clause is usually expressed during a negative form i.e. by using the words “Notwithstanding anything contained” or “Anything contained In previous law shall not affect the provisions of a specific Act”.

Obiter dicta:

In the instant case, the words “in addition and without Prejudice to any powers” can’t be construed to be a non-Obstante clause in the least so to override other provisions of The Act or those of the Code of Criminal Procedure.

Judgement:

The Court described ambit of Section 14 as:

1. Section 14 aside from providing that the proceedings of the Court could also be held privately under the circumstances mentioned within the Section, doesn’t in any way affect or override the provisions of the Criminal Procedure Code concerning enquiries or trials held thereunder.

2. Section 14 doesn’t in any way divest the valuable rights of the accused to impulse copies of the statement which is recorded by the Magistrate or statements of witnesses noted by the police the documents attained by the Police during the investigation as envisaged by Criminal Rules 308 and 310 which is framed under the Code of Criminal Procedure by various High Courts nor does Section 14 in any way affect the proper of the accused to urge copies under Section 548 of the Code of Criminal Procedure.

3. The opening words of Section 14 don’t amount to a non obstante clause but are merely within the nature of an enabling provision reserving the inherent powers of the Court to exclude the general public from the proceedings if the Court is of the opinion that it’s just and expedient to try to to so.

4. There was absolutely no impropriety on the facility of the Magistrate in not taking action against the defense lawyer for his refusal to point out his register because the lawyer had rightly claimed privilege under Section 126 of the Evidence Act because the register contained instructions given by the client which being privileged couldn’t be disclosed to the Court.

5. On a parity of reasoning, we discover no impropriety on the conduct of the lawyer in refusing to point out the statement of witnesses recorded by the Court in extenso so as to organize himself for an efficient cross-examination of the witnesses. Hence the strictures gone by the Supreme Court on the Magistrate as also on the lawyer of the defense were, in our opinion, totally unwarranted.

6. If the lawyer of the defense or staff of the Court or anyone who wasn’t omitted from the hearing the case made any plan to unveil the contents of the documents or the statements of the witnesses, exposed himself to a prosecution on a charge under Section 5 of the Act.

Conclusion:

The court overruled the view of the Supreme Court and said that Section 14 of the Act excludes the giving of copies of the statement to the Accused or that the lawyer is prohibited from taking the statements in extenso and had a requirement to point out an equivalent to the court. The Court also overrule the view taken by the Supreme Court regarding the interpretation of Section 14 of the Act.

Drafted by: Bharti verma, Chanderprabhu Jain college of Higher studies and school of law

Edited By: Tanvi Mahajan, Publisher, Law Insider

Published On: February 12, 2022 at 23:50 IST