Cost of 25000 for misuse of official secrets act.
THE HIGH COURT OF JUDICATURE AT BOMBAY
in
WRIT PETITION NO.20054 OF 2022
Rohan Tukaram @ Appasaheb Kale ]
Vs.
1. Somnath Haribhau Koli ]
2. The State of Maharashtra ]
, justices REVATI MOHITE DERE &
PRITHVIRAJ K. CHAVAN, J.J.
on 8th DECEMBER, 2022.
Held as
3. By this petition, preferred under Article 226 of the
Constitution of India and under section 482 of the Code of
Criminal Procedure, 1973 (for short "Cr.P.C"), the petitioner
seeks quashing of the First Information Report (For short "F.I.R")
registered vide C.R. No.0520 of 2021 with the Akluj Police
Station, Solapur for the alleged offence punishable under section
3 of the Official Secrets Act, 1923 and consequently the chargesheet bearing No.157 of 2021 dated 12th August, 2021.
4. Learned Counsel appearing for the petitioner submits that
taking the prosecution case as it stands, no offence as alleged is
disclosed qua the petitioner. He submits that the petitioner's case
is squarely covered by the Apex Court decision in the case of
State of Haryana and others Vs. Bhajan Lal and others 1
. Learned
Counsel for the petitioner also relied on the order of this Court,
in the case of Ravindra Shitalrao Upadyay Vs. State of
Maharashtra through P.S.O Sawangi (Meghe),
2
5. Learned A.P.P does not dispute the legal position, that 'Police
Station' is not covered under the provisions of the Official Secrets Act.
6. Perused the papers. According to respondent No.1-original
complainant - Head Constable attached to the Akluj Police
Station, Solapur, the incident took place on 27th July, 2021, when
the petitioner had been to the Police Station. It appears that the
petitioner was called by respondent No.1 in connection with an
F.I.R, bearing C.R. No.0518 of 2021 registered against him with
the very same Police station. According to respondent No.1,
when he was taking note of the complaints of the citizens, he
found that the petitioner was taking photographs on his mobile.
When he checked the petitioner's mobile phone, he saw a
photograph taken by the petitioner of the Police Station, from
outside with people standing, pursuant to which, he lodged the
aforesaid F.I.R, alleging an offence punishable under Section 3 of
the Official Secrets Act. After investigation, charge-sheet was
filed in the said case. In the said charge-sheet, the Police have
annexed the photograph taken by the petitioner, of the Police Station
from outside. The said photograph is at page 35 of the petition.
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7. We are shocked and appalled, how the concerned Police
Officer could have even lodged an offence for the alleged act of
taking photograph of the Police Station, from outside, under the
Official Secrets Act, as against the petitioner.
8. Section 3 of the Official Secrets Act reads thus;
"Penalties for spying._ (1)If any person for any
purpose prejudicial to the safety or interests of the
State_
(a) approaches, inspects, passes over or is in the
vicinity of, or enters, any prohibited place; or
(b)makes any sketch, plan, model, or note which is
calculated to be or might be or is intended to be,
directly or indirectly, useful to an enemy; or
(c) obtains, collects, records or publishes or
communicates to any other person any secret
official code or pass words, or any sketch, plan,
model, article or note or other document or
information which is calculated to be or might be
or is intended to be, directly or indirectly, useful to
an enemy [or which relates to a matter the
disclosure of which is likely to affect the
sovereignty and integrity of India, the security of
the State or friendly relations with foreign States];
he shall be punishable with imprisonment for a
term which may extend, where the offence is
committed in relation to any work of defence,
arsenal, naval, military or air force establishment or
station, mine, minefield, factory, dockyard, camp,
ship or aircraft or otherwise in relation to the naval,
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military or air force affairs of [Government] or in
relation to any secret official code, to fourteen
years and in other cases to three years"
9. Section 3 of the Official Secrets Act, provides punishment
for acts, prejudicial to the safety or interests of the State; acts done
affecting the sovereignty and integrity of India and so on i.e, for
the acts stipulated therein. Prima facie, it appears to have been
malafidely invoked by the concerned Police. By no stretch of
imagination, section 3 could have been invoked in the facts of the
present case. It is pertinent to note, that the definition of
'prohibited place' as defined in section 2(8) of the Official Secrets
Act, is an exhaustive definition, which does not specifically
include 'Police Station' as one of the places or establishments.
10. Admittedly, even according to the prosecution, the
petitioner had only taken one photograph (which is at page 35 of
the petition) of the people standing outside the Police Station
with the Police Station in the background. It is the petitioner's
case that he has clicked the said photograph only to show that the
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Police Personnel and the persons with whom there was a family
dispute and who had opposed the demarcation proceedings were
communicating with each other in a friendly manner.
11. We cannot comprehend, how an F.I.R could have even
been registered on the basis of the said photograph, that too, for a
serious offence under section 3 of the Official Secrets Act. Infact,
this Court in the case of Ravindra Shitalrao Upadyay (supra) has
held that even video recording made on the mobile phone within
the Police Station whilst discussions are carried out would not
attract ingredients of section 3 of the Official Secrets Act.
Invocation of section 3 of the Act, which punishes for spying, can
have drastic consequences on the person against whom it is
invoked. It could impact one's reputation, job, career and so on.
It cannot be lightly invoked, to jeopardize someone's life and
career. Law cannot be misused / abused and must not be used as
a tool for harassing or tormenting persons. It is the duty of the
Police to protect people and act in accordance with law.
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12. Having regard to what is stated aforesaid, the petitioner's
case would squarely be covered by clauses 1 and 3 of paragraph
102 of Bhajan Lal's (supra) case, which read thus;
102.......
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
to not prima facie constitute any offence or make out
a case against the accused.
(2).....
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused".
13. We regularly come across cases where F.I.R's are being
registered by the Police, under section 3 of the Official Secrets
Act, without application of mind, which is a matter of serious
concern i.e for acts done in the Police Station, video graphing of
discussions in the Police Station, taking photographs within the
Police Station, etc, more particularly, when a 'Police Station' is not
a prohibited place. To attract the provisions of the Official
Secrets Act, the place where the incident takes place has to be a
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'prohibited place', as defined in section 2(8) of the Official
Secrets Act. Registration of the offence under Section 3 of the
Official Secrets Act, as against the petitioner, in the facts, is clearly
an abuse of the process of law and if not quashed, would lead to
serious miscarriage of justice, which cannot be countenanced.
14. Considering the aforesaid, the petition is allowed.
Accordingly, we quash C.R. No.0520 of 2021 registered with the
Akluj Police Station, Solapur, consequently, the charge-sheet
bearing No.157 of 2021 dated 12th August, 2021 for the alleged
offence punishable under section 3 of the Official Secrets Act,
1923 is quashed and set aside.
15. Considering the reason and the manner in which the Act is
invoked, we deem it a fit case to direct the State Government to
pay costs of Rs.25,000/- to the petitioner. However, the said costs
shall be recovered from the salary of the person/persons
responsible for invoking section 3 of the Official Secrets Act.
Costs to be paid to the petitioner within four weeks from
uploading of this order.
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16. Copy of this order be sent to the Director General of Police,
Commissioner of Police, Mumbai and the Home Department, so
as to enable them to take appropriate steps to ensure that the
Official Secrets Act is not misused. It is also open for the
Authorities concerned, to consider whether a senior high ranking
level officer be informed when an F.I.R under the Official Secrets
Act is lodged, in matters concerning the Police Station, to curb
misuse of the Act.
17. Rule is made absolute in the aforesaid terms and the
petition is disposed of accordingly