RAKESH KUMAR JAIN versus STATE THROUGH CBI, NEW DELHI

Citation: [2000] SUPP. 2 S.C.R. 275 · Decided: 08-08-2000 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed

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Judgment (excerpt)

RAKESH KUMAR JAIN 
v. 
STATE THROUGH CBI, NEW DELHI 
AUGUST 8, 2000 
[K.T. THOMAS AND R.P. SETHI, JJ.] 
Criminal Procedure Code, 1973-Sections 245, 470(3) & 473-0.fficial 
Secrets Act, 1923-Sections 5(4) rlw 5(2) and (3) & 13(3)-Complaint 
under-Filed beyond limitation period-Due to delay in obtaining sanction-
Plea that since no sanction is required under the Act, the accused should be 
discharged in terms of Section 245-Held, since no sanction is provided to be 
taken under the Act, the period spent in obtaining the sanction cannot be 
excluded under Explanation to Section 470( 3 )-'-But mere delay does not 
entitle the accused to be discharged, because the complainant is entitled to 
extention of period of limitation u/s. 473. 
Words & Phrases-'Made by order of'-Meaning of in the context of 
Official Secrets Act, 1923-Section 13(3). 
A 
B 
c 
D 
A criminal complaint u/s. 5(4) r/w section 5(2) & (3) of Official 
Secrets Act, was filed against the appellant by Union of India. Appellant 
filed an application under Section 245 Cr.P.C. for being discharged, on the 
E 
grounds that the order of the prosecution had not been passed by an 
appropriate authority and that cognizance could not have been taken as 
the complaint was barred by limitation. Respondent pleaded that the 
period of 79 days, required for obtaining the sanction, should be excluded 
in computing the period of limitation. The application was rejected by the 
F 
trial court and the revision against the order of the trial court was also 
dismissed, holding that Section 13(3) of the Official Secrets Act provided 
the taking of previous sanction of the appropriate government and the 
time required for obtaining such consent or sanction was to be excluded in 
terms of Section 470(3) Cr.P.C. 
In appeal to this Court, appellant contended that as no sanction or 
consent was provided to be taken from the government under Section 
13(3) of the Act, the complaint was required to be dismissed. The respond-
ent contended that the complaint was filed within time as it was mandatory 
G 
to obtain sanction u/s. 13(3) of the Act; that Sub-section (3) of Section 13 of 
H 
275 
276 
SUPREME COURT REPORTS 
(2000] SUPP. 2 S.C.R. 
A 
the Act was in two parts • one dealing with the passing of the order which 
necessarily meant consent or sanction and the second dealt with the person 
authorised to file the complaint; and that even if no sanction was required, 
the complaint would be deemed to have been filed within time as the 
complainant and other officials bonafidely believed that such a sanction 
B 
was necessary before filing of the complaint. 
Dismissing the appeal, the Court 
HELD : 1. Sub-Section (3) of Section 13 of the Official Secrets Act 
provides that cognizance of offence under the Act can be taken only upon 
C 
complaint which is (a) filed by order of appropriate government; or (b) 
filed under authority from the appropriate government; or (c) by some of· 
fleer empowered by .the appropriate government. No consent or sanction of 
the Government or any authority, as contemplated by Explanation to Sub· 
section (3) of Section 470 Cr.P.C., is required for filing the complaint under 
D 
E 
F 
G 
,H 
the Act. 'Consent' or 'sanction' envisaged under Section 470 Cr.P.C. cannot 
be equated with the 'order' or 'authority' for the purposes of filing the 
complaint as envisaged by Sub-section (3) of Section 13 of the Act. Specific 
provisions have been made in various statutes requiring previous consent 
or sanction for the purposes oflaunching of prosecution against the accused 
under those enactments. Explanation to Sub-section (3) of Section 470 Cr.P.C. 
obviously refers to such consents and sanctions and not the order or author· 
ity as required under the Act. Consent sanction as are referred to in the 
Prevention of Corruption Act, Prevention of Food Adulteration Act, vari· 
ous Foodgrains Control Orders, and other similar enactments envisage the 
application of mind before the grant of such consent or passing of order, 
individually or generally, or conferment of authority individually or gener· 
ally, or empowering a person for the purpose of filing a complaint is only an 
administrative action facilitating in identifying the complainant before the 
Court for the purposes of filing and prosecuting the case under the Act. The 
legislature, in its wisdom, thought it appropriate to exclude only such pe-
riod which is required for obtaining the previous consent or sanct

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