LexSTATE OF MAHARASHTRA versus DR. BUDHIKOTA SUBHARAO
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_, STATE OF MAHARASHTRA A + v. DR. BUDHIKOTA SUBHARAO MARCH 16, 1993 ~ B \ [S. RATNAVEL PANDIAN AND R.M. SAHA!, JJ.] _, -+ Code of Criminal Procedure 1973 : Section 197--Cog11iza11ce of offence by public servants-Nature of power exercised by Courts-Extent of protection afforded to public servallts-Sanction to prosecution-Requirement of c Words a11d Phrases-Meaning of 'Official'-'Official Duty'. -..,+-· The respondent in the appeal was an ex-Naval Captain who achieved notable suaess in the field or compnter science and software during the period be WdS attached with the Bhabha Atomic Research Centre and had D voluntarily opted out of service iu 1987. He was arrested on 30th May, 1988 just, when he was about to board a plane for New York. His residence was searched on the next day. From the documents recovered from search or the band bag on 30th and residence on 31st and his interrogation, it appeared that be was guilty or violating provisions of the Official Secrets E Act, 1923 and Atomic Energy Act, 1962 and, therefore, a complaint was --y fded, against him after obtaining permission, under Section 3(1)(c), 3(1)(c) read with Sections 9, 6(2)(a) and 6(2)(b) or the O.S. Act and 24(l)(d) read with 18(2) and 24(2)(d) read with Section 19(b) of the A.E. Act before the Metropolitan Magistrate who being prima facie satisfied or the offences and their gravity committed the accused to stand trial before F the Court of Sessions. The accused assailed the framing or charge contending that, on facts, no offence under either or the Statutes was made out, and if any offence for which he could be charge-sheeted could he under Section S of G the O.S. Act. The Trial Judge turned down the plea by order dated 24/27tli February, 1989 and fixed date for framing the charge. ~ A revision agai\Jst this order was dismissed by the High Court on 6th June, 1989, and was challenged by way of Special Leave Petition in this Court, but it was permitted to be withdrawn. H 311 A B 312 SUPREME COURT REPORTS [1993] 2 S.C.R. The accused thereafter invoked the inherent jurisdiction of the High Court seeking review of the order dated 6th June, 1989 and although the application was rejected on 18th September, 1989 but all observation was made that there was no impediment in the way of the Trial Judge in altering or modifying or reviewing any of the charges or even framing new or additional charge. This provided an occasion to the accused for start· ing proceedings, afresh, for his discharge and claim in the alternative to framecharge under Section S of O.S. Act instead of under Section 3, for which purposed he moved an application which was allowed by the Trial Judge on 15th January, 1990, and the charges under A.E. Act were dropped. The charge under the O.S. Act was altered. to one under Section C S of the Act. This order was set aside on 3rd/4th April; 1990 by a Single Judge and the Trial Judge was directed to frame charges both under Sections 3 and S of the O.S. Act. The accused approached the Division Bench against the aforesaid D order by way of an application speaking to the Minutes for clarification of the order passed by the High Court on 3rd/4th April, 1990 as the Single Judge who passed the order on 3rd/4th April, 1990 did not appreciate the observations made by the Division Bench, but it was rejected on 24th July, 1990 as there was no system of speaking to the Minutes by doing which the order could be reviewed in criminal proceedings. The Division Bench E dismissed this application and observed that remedy of the accused was to approach the court in proper forum. When the matter Was thereafter taken up for framing the charge the accused, once again, claimed that he was entitled to be heard at stage of F Section 227 of the Code of Criminal Procedure and he was entitled to be discharged. The Trial Judge by order dated 6th August, 1990 rejected the application, restored the earlier charges and framed a charge under Section 5 as well . . The validity of the aforesaid framing of charges was challenged by ' ........ G way of a Writ Petition (Criminal) under Articles 226 and 227 of the Constitution, and it was claimed that the entire proceedings being viola· tive of Article 21 of the Constitution were liable to be quashed. The High Court did not find any substance but by Its order dated 24th March, 1991 ~- directed the ASJ to decide if sanction under Section 197 of th
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