Anthony Allen Fletcher vs The State on 6 December, 1973

    Anthony Allen Fletcher vs The State on 6/12/1973

JUDGMENT

   N. C. Talukdar, J.

   1. This is an application for bail on behalf of the accused-applicant,
Anthony Allen Fletcher, with notice to the State. The application is opposed.

   2. The applicant was arrested on 26-4-1973 from the Waverley Hotel, Calcutta,
on charges under Sections 3 and 9 of the Official Secrets Act, 1923 and Section
120-B of the Indian Penal Code. The investigation is still pending. Applications
for bail were made on his behalf before the learned Chief Presidency Magistrate,
Calcutta as well as the learned Judge, City Sessions Court but were rejected. An
application for bail was thereafter filed in the High Court from an order passed
by the learned Chief Presidency Magistrate, Calcutta rejecting bail. Our learned
brothers, the Chief Justice and A. K. De. J., by their order dated 25-9-1973,
rejected the prayer but granted liberty to the applicant to make a fresh
application for bail after 15-11-1973. The present application was filed
thereafter on 22-11-1973.

   3. Before the hearing of the application, Mr. Dipankar Gupta, Standing
Counsel (with Mr. Promode Ranjan Roy, Junior Government Advocated made a prayer
under Section 14 of the Official Secrets Act, 1923. for excluding the public
from the hearing of the application: but the same was strongly opposed by Mr,
Amal Dutta, Senior Advocate (with M/s. Alok Kumar Sengupta and S. Dudewalla,
Advocates) appearing on behalf of the Accused-Applicant.

   4. The learned Standing Counsel pressed his prayer for a hearing in camera on
the ground that in the facts and circumstances of the case, the publication of
the statements to be made in course of the hearing would be prejudicial to the
safety of the State and to support his contention, he briefly indicated the
nature of the allegations levelled against the accused-applicant. Mr. Gupta
further submitted in this context that the provisions of Section 14 of the
Official Secrets Act are wide enough, conferring a discretion with the Court to
decide, on proper grounds, that the hearing of a trial or a proceeding is to be
held in camera and that this is independently of the inherent powers of the
Court to direct so in the interests of justice. Several cases were cited and the
same will be considered at the proper stage. Mr. Amal Dutta joined issue and
besides making a broad submission that an open trial is one of the most valued
rights of the citizen and should not be denied by a direction for hearing in
camera, he raised an objection of four dimensions.

   5. The point raised is of some importance and we will proceed to determine
the same, in the first instance. In support of the first dimension of his
objection, Mr. Dutt. relied on the provisions of Section 14 of the Official
Secrets Act. 1923 (Act XIX of 1923) read with Chapters IV and XI, Part II of the
Rules of the High Court at Calcutta, Appellate Side, laving down general rules
of applications and affidavits and contended that the expression 'application'
used in Section. 14 of the Official Secrets Act, 1923 refers to a petition in
writing and not an oral prayer. The learned Standing Counsel joined issue and
contended that the interpretation given by Mr. Dutt will merely circumscribe the
meaning of the word 'application', which in legal parlance stands both for an
oral prayer as well as a written petition. In support of his contentions he
relied on the definition of the word 'application' as given in the Law Lexicons
and the Dictionaries In this context he referred to the Shorter Oxford English
Dictionary, revised and edited by C. T. Onions, wherein the word 'application'
has been defined as "the action of making an appeal, request or petition to a
person: the request so made". He next referred to Wharton's 'Law Lexicon (14th
Edn.) wherein the word 'application' has been defined as "a request, a motion to
a Court or Judge". He also referred to the 'Legal and Commercial Dictionary' by
S. D. Mitra wherein it has been stated that " 'apply' means to make a prayer or
request orally or in the form of a written application", The provisions again of
Chapters IV and XI. Part II of the Rules of High Court at Calcutta, Appellate
Side, are in a different context, providing for a different contingency and do
not enjoin that an "application" under Section 14 of the Official Secrets Act,
1923 must necessarily be a petition in writing. On ultimate consideration we
find it difficult to agree with the steps of reasoning put forward by Mr. Dutt
and we hold that there is a considerable force behind the submissions of Mr.
Dipankar Gupta. In our view the word 'application' in Section 14 of the Official
Secrets Act XIX of 1923 denotes not only a petition in writing but also an oral
prayer made to the court directing the exclusion of the public from any
proceeding. The first dimension of Mr. Dutt's objection accordingly fails.

   6. Mr. Dutt based his next objection that an application for bail does not
come within the ambit of Section 14 of the Official Secrets Act, 1923 on the
ground that the same is not covered by any of the three alternatives contained
therein, viz., (a) in course of the proceedings before a Court against any
person for an offence under this Act; or (b) the proceedings of appeal; or (c)
in course of the trial of a person under this Act. The learned Standing Counsel
submitted that the interpretation given by Mr. Dutt is unwarranted and
untenable, inasmuch as the terms of Section 14 of the Act are wide enough to
include a proceeding, alleging offences under this Act, in course whereof an
application is made for bail. A bail application is a part or a continuation of
the proceedings before a Court against any person for an offence under this Act
and accordingly a prayer under Section 14 of the Act can be made, in connection
with the hearing of such application, for excluding the public from the hearing.
We agree with the submissions made by the learned Standing Counsel and hold that
the interpretation sought to be given by Mr. Amal Dutt is de hors the provisions
of Section 14 of the Act XIX of 1923. The second dimension also of Mr. Dutt's
objection accordingly fails.

   7. The third branch of Mr. Dutt's objection is that the prosecution has not
disclosed any specific ground on which this Court can reasonably hold that "the
publication of any evidence to be given or of any statements to be made in
course of the proceedings would be prejudicial to the safety of the State". The
learned Standing Counsel in his replies contended that the test to be applied at
this stage is of a prima facie satisfaction on the part of the Court as to the
nature of the case and the materials outlined; and that he had already indicated
the nature of the case and all the statements recorded, on the basis of which
such a prima facie satisfaction can be broad-based. We agree with the
submissions of Mr. Gupta and we hold that at this stage any detailed delineation
would merely be begging the question and frustrate the very intention behind a
prayer for holding a trial or hearing in camera. The satisfaction of the Court
enjoined under Section 14 of the Official Secrets Act, 1923 Is therefore a prima
facie satisfaction and the Court need not proceed to hear ostiis apertis the
submissions made by the respective parties in details with reference to the
statements adapted in connection with the case collected in course of the
investigations, in order to arrive at its ultimate satisfaction within the
bounds of Section 14 of the Official Secrets Act. 1923. There is no force
therefore behind this branch of Mr. Dutt's objection.

   8. The fourth and last dimension of Mr. Dutt's objection relates to the
apprehension of prejudice being caused to the Accused-Applicant if the hearing
is held in camera under Section 14 of the Official Secrets Act, 1923. He
contended that an order made under Section 14 of the Act would control the right
of the Accused-Applicant to obtain even a copy of the order passed by this
Court, operating thereby to his serious prejudice. He referred in this context
to the case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Satyen
Bhowmick, reported in 75 Cal WN 48 : (1970 Cri LJ 1631) and relied on the
observations made by Mr. R. N. Dutt at p. 51 that "True, but for the order under
Section 14 of the Official Secrets Act in the instant enquiry the accued persons
would have been entitled to get copies of order-sheet, deposition of all
witnesses and all documents marked as exhibits. But the order made by the
learned Magistrate under Section 14 of the Act controls this right of the
accused". This is not really so and even if the observations referred to above
be deemed to have raised a cloud, the ultimate position in law has been made
quite clear. Mr. Justice Dutt proceeded to observe at p. 52 : (at d. 1633 of Cri
LJ) as follows:

     We do not hold that, merely because there is an order under Section 14 of
the Act, the accused would not get copies of any deposition or of any document
but we hold that the accused will not be entitled to get copies of depositions
or documents publication of which would be prejudicial to the safety of the
State.

   We therefore do not agree with the contentions raised by Mr. Dutt. The
Accused will not be entitled, in the case of a hearing not ostiis apertis, to
get copies of depositions or documents, publication of which would be
prejudicial to the safety of the State and the order passed by the High Court on
the application for bail does not come within the ambit thereof. The
apprehensions of the Accused-Applicant accordingly are misconceived and based on
a misinterpretation of the ratio underlying the judgment of the Division Bench
referred to above, We have given our anxious consideration to this branch of Mr.
Dutt's objection as it involves the question of prejudice in a criminal
proceeding caused to the accused, whose rights should always be safeguarded. But
we find on ultimate analysis that such an apprehension is unwarranted and
untenable and the fourth dimension also of Mr, Dutt's objection fails.

   9. We will now proceed to consider the broad submissions made by Mr. Amal
Dutt that an open trial being one of the most valued rights of the citizen
should not be denied by a direction for hearing in camera. To lend assurance to
his contention Mr. Dutt relied on the language of the provisions contained in
Section 14 of the Official Secrets Act, 1923, Rule 63 of the Criminal Rules and
Orders of the Calcutta High Court and Section 352, Criminal Procedure Code. The
learned Advocate for the Accused-Applicant also pin-pointed the use of the words
'ordinarily' in Rule 63 of the Criminal Rules and Orders and "may" in Section 14
of the Official Secrets Act, 1923. It is quite true that judicial work should
ordinarily be done in public court house and the trial or the hearing should be
held in open court. There are however, exceptions warranted by the exigencies of
the case and accordingly the legislature in its wisdom laid down specific
provisions in the different Acts for holding a trial or hearing in camera, if
the court, in its discretion, considers it proper to do so. Such provisions are
to be found, amongst others, in Section 53 of the Indian Divorce Act, 1869,
Section 22(1) of Hindu Marriage Act, 1955, proviso to Section 352 Criminal
Procedure Code, and Section 151, Civil Procedure Code. This is apart from the
inherent powers of the Courts to direct a trial not Ostiis Apertis in the
interest of justice.

   10. The first part of the provisions contained in Section 14 of the Official
Secrets Act, 1923 viz., "in addition to and without prejudice to any powers
which a court may possess to order the exclusion of the public from any
proceedings" makes it abundantly clear. A reference may be made in this context
to a decision under Section 352 of the Code of Criminal Procedure and Rule 63 of
the Criminal Rule viz., the case of Kumar Purnendu Nath Tagore v. Kalipada Dutt,
Mr. Justice K C. Das Gupta (as his Lordship then was) delivering the judgment of
the Division Bench undoubtedly observed at p. 514 that "Hallowed by the
administration of justice for long years gone by and by the promise of
administration of justice for years to come, public court houses may well be
said to be 'temples of justice' ....". The Division Bench however proceeded to
observe that "the use of the word "ordinarily" makes it clear that in
extraordinary circumstances the Magistrate may do judicial work in places other
than the public court houses". The test laid down however is that "to justify
any departure from the Rule, circumstances must be very very extraordinary
indeed". We respectfully agree and we hold that in this case the circumstances
referred to by the learned Standing Counsel are exceptional circumstances in the
context of which the departure may be allowed, more so in view of the specific
provisions of Section 14 of the Official Secrets Act, 1923 and the inherent
powers of this Court to hold such trials in camera as recognised by the
aforesaid provisions. We would now refer to a more recent decision by the
Supreme Court in the case of Naresh Shridhar v. State of Maharashtra, . In that
case the majority view of Gajendragad-kar, C, J.. and Wanchoo, Mudholkar, Sikri
(as their Lordships then were) and Ramaswami, JJ., while emphasising the
importance of public trial, held at pp. 8 that "if the primary function of the
Court is to do justice in causes brought before it, then on principle, it is
difficult to accede to the proposition that there can be no exception to the
rule that all causes must be tried in open court". The majority view further
proceeded to hold that "That is why we feel no hesitation in holding that the
High Court has inherent jurisdiction to hold a trial in camera if the ends of
justice clearly and necessarily require the adoption of such a course". Mr.
Justice Hidayatullah also in his dissentient judgment observed that "where the
legislature felt the special need it provided for it". Although he held
ultimately that inherent powers can only be exercised on well-recognised
principles and they cannot be assumed to exist where they do not. A reference in
this context may be made to Halsbury's Laws of Eng., 2nd Edn. Vol. X and the
provisions of Official Secrets Act, 1920 in Eng. (10 and 11 Geo 5C 75). It has
been observed in Article 750 in Halsbury that "As a general rule, all persons
have a right to be present in court, provided there is sufficient accommodation
and there is no disturbance of the proceedings". A reference was made this
context to the case of Scott v. Scott (1913) AC 417. H. L... wherein it was
observed that "there is, however, an inherent jurisdiction in the court to
exclude the public if it becomes necessary to do so for the administration of
justice." It was further observed in Halsbury that "To the general rule there
are some statutory exceptions" and that "on a trial under the Official Secrets
Act, the court, on the application of the prosecution, may order all or any
portion of the public to be excluded during any portion of the hearing, if the
publication of any evidence to be given or statement to be made would be
prejudicial to the national safety. The sentence must, however, be passed in
public." The provisions of Section 8(4) of the Official Secrets Act, 1920 in
England (10 and 11 Geo. 5C. 75) are similar to those of Section 14 of the
Official Secrets Act, 1923, in India (Act XIX of 1923).

   11. On a consideration of the provisions of the Statute as also the
imprimatur of the judicial decisions, we ultimately hold that in view of the
specific provisions contained in Section 14 of the Official Secrets Act, 1923
when it reasonably appears to the Court that a trial ostiis apertis would have
the risk of any publication of any evidence to be given or any statements to be
made in course of the proceedings would be prejudicial to the safety of the
State, the Court in exercise of its discretion can exclude the public from such
proceedings and that this power is in addition to the inherent power exercised
by the Court to do justice. Each case ultimately must depend on its own facts
and the prayer made on behalf of the prosecution on the basis of the specific
provisions of a special Act and the facts and circumstances of the particular
case cannot be jettisoned merely on the ground that an open trial is one of the
most valued rights of the citizen and should not be denied by a direction for
hearing in camera. The broad submission made by Mr. Dutt in support of the
objection raised to a trial in camera is accordingly not maintainable on
ultimate analysis.

   12. We will now turn to the merits of the application for bail. Mr. Dutt has
pressed the application on two grounds firstly on the ground of the absence of
any materials establishing the offences alleged; and secondly, on the ground of
an inordinate delay in completing the investigation. The learned Standing
Counsel joined issue on both the grounds.

   13. As regards the first ground relating to the merits, the learned Standing
Counsel placed before us several documents and statements taken during the
investigation and contended that the same rules out the submissions of Mr. Amal
Dutt made in this behalf. The test required in this case is undoubtedly a prima
facie test and the investigation is still pending. We are therefore unable to
agree with Mr. Dutt that the materials so far collected do not make out a prima
facie case. The first contention of Mr. Dutt on merits therefore fails.

   14. The second branch of Mr. Dutt's submission relates to the delay in
investigation, prejudicing an accused in detention. The accused-applicant was
arrested on the 26th April, 1973 and since then he is in jail. An application
for bail was filed before the High Court earlier and our learned Brothers the
Chief Justice and Mr. Justice A. K. De. while rejecting the prayer for bail,
gave liberty to the applicants to make a fresh application for bail after the
15th November. 1973. Mr. Dutt contended that the intention behind the order is
that the investigation would be completed by that time. The learned Standing
Counsel contended however that it is not so, and that in a case where the field
of investigation is very wide, extending beyond West Bengal, and numerous
documents have to be taken into consideration as well as a number of statements
has to be taken from different persons, the period taken for investigation since
26th April, 1973. cannot be reason-, ably held to have been a considerable one*
He also submitted that further materials had cropped up, after the 25th
September, 1973. calling for further investigation and he referred in this
connection to the apprehension of one absconding accused, Mr. Gupta ultimately
submitted that out of the six accused persons, two are still absconding. The
question of delay in investigation in a case is a relative one, depending on
various factors, including the nature and extent of the particular case. In view
of; the submissions made above, it is premature to hold at this stage that the
investigation has been, dilatory. We hold, on an anxious consideration of the
submissions made and the materials placed before us, that due opportunity should
be given to the prosecution to complete the investigation.

   15. A reference in this context may be made to the observations made by Lord
Porter in the case of King Emperor v. Nazir Ahmad, reported in 71 Ind App 203 at
p. 212 : 46 Cri LJ 413 at p. 417 -AIR 1945 PC 18 at p. 22 that "the functions of
the judiciary and the police are complementary, not overlapping, and the
combination of individual liberty with a due observance of law and order is only
to be obtained by leaving each to exercise its own function always, of course.
subject to the right of the Court to intervene in an appropriate case when,
moved under Section 491 of the Criminal Procedure Code to give directions in the
nature of habeas corpus". The powers of the Court to interfere at the stage of
investigation by the police are indeed limited and the same should not overlap
the other, excepting for limited purposes, amongst others, of bail or writs of
habeas corpus under Section 491, Criminal Procedure Code or a writ of mandamus
if the investigation be mala fide. While we agree that an undue and prolonged
delay in investigation will be a ground in favour of the defence prayer for
bail, more so when liberty was given by the Division Bench earlier to renew the
prayer for bail after the specified period, we ultimately hold that, in the
facts and circumstances of the case and in view of the submissions made, there
has been no unnecessary delay or dilatory investigation and we accept the
explanation submitted in this behalf by the State. The learned Standing Counsel
further submitted that the investigation will not take long and it is expected
to be completed within about three months. The second contention therefore of
Mr. Dutt on merits also fails.

   16. Before parting with the application, we make it clear that we have made
no observations as to the merits of the case, which is still in the stage of
investigation, excepting holding that the prayer for bail at this stage is
premature.

   17. In the result, the application is rejected as premature.

   A. N. Banerjee, J.

   I agree.