Full Judgment Text
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PETITIONER:
DR. BUDDHI KOTA SUBBARAO
Vs.
RESPONDENT:
MR. K. PARASARAN & ORS.
DATE OF JUDGMENT: 13/08/1996
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
THOMAS K.T. (J)
CITATION:
JT 1996 (7) 265 1996 SCALE (5)797
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
DR. ANAND, J.
We have heard the applicant who has appeared in person
at length.
The applicant took voluntary retirement from the Indian
Navy while holding the rank of a Captain on 27th October,
1987. While on his way to USA on May 30, 1988, he was
detained at the Sahar International Airport, Bombay. His
suitcase was taken away from him and he was taken to the
Sahar police station and locked up. He was alleged to be
carrying atomic and defence secrets with him. His successive
applications for release on bail were rejected by the
Metropolitan Magistrate, the Sessions Court and by the
Bombay High Court. An order granting him bail on "medical
grounds" was cancelled by this Court. After obtaining
consent of the then Attorney General of India, Mr K.
Parasaran (respondent No. 1 herein) under Section 26(2) of
the Atomic Energy Act, 1962 and authorisation from the Chief
Vigilance Officer of the Department of Atomic Energy Mr S.K.
Bhandarkar (respondent No 2 herein) for proceeding against
the applicant and prosecuting him for the various offences
alleged against him he was committed by the learned
committing Magistrate to stand his trial in the court of
Sessions. Charges for offences including the offences under
section 3/6 Official Secrets Act and Sections 18/19 of the
Atomic Energy Act, 1962 were framed against him. Against the
order for framing of charges, the applicant unsuccessfully
approached the Bombay High Court through revision
application No.96/89. The applicant thereafter filed a
criminal writ petition in the High Court once again inter
alia calling in question the order for framing of charges
and during the pendency of the writ petition, he filed a
criminal miscellaneous petition in the High court also
alleging that the charges against him were vitiated by
’fraud’ on the basis of the allegations made in the
application, committed by the State and the Public
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Prosecutor. While matters rested thus, on 26.4 1991 the
learned Sessions Judge trying the case, found that the
prosecution had not obtained any sanction to prosecute the
applicant and concluded that in the absence of sanction
under Section 197 Cr. C.P.C. the trial was vitiated and
accordingly discharged the applicant The High Court while
considering the criminal revision petition filed by the
State against the order of discharge declined to interfere
hut found that since the case had travelled beyond the stage
cf Section 227/228 Cr.P.C. an order of acquittal and not one
of discharge was warranted and converting the order of
discharge into an order of acquittal, dismissed the petition
filed by the State on 12.10.1991. Though, technically the
criminal writ petition filed by the applicant had thus been
rendered infructuous, a learned Single Judge, after
dismissal of the revision petition filed by the State, heard
the writ petition and the miscellaneous petition and made an
order passing strictures against the State and Public
Prosecutor virtually accepting various pleas raised by the
applicant alleging commission of ’frauds by the special
prosecutor and the State The State of Maharashtra aggrieved
by that order of the High Court, filed SLP (Crl.) No.
4178/91 (criminal appeal No. 275 of 1993) in this Court. On
March 16,1993, a Bench of this Court allowed the appeal and
set aside the order dated 28.10.1991 passed in the criminal
miscellaneous petition and the criminal writ petition and
directed that in view of the order of discharge made in
favour of the applicant by the trial court, criminal writ
petition would stand dismissed as infructuous. The remarks
made by the learned Single Judge of the High Court against
the State and the Public Prosecutor were also directed to be
expunged. This Court expressed its disapproval of the manner
in which the High Court had proceeded with the case.
The order of discharge made by the learned Sessions
Judge and confirmed by the High Court also challenged by the
State through SLP (Crl ) 996/92 (criminal appeal appeal No.
276/93). A Division Bench of this Court dismissed the appeal
against the order of discharge of the applicants being
criminal appeal No. 276 of 1993. This Court, however, opined
that the order of discharge made by the trial court was
sound and that the High Court fill in error in converting it
into an order of acquittal. The order of acquittal was
consequently converted into an order of discharge. The
applicant was awarded costs of Rs. 25,000/- taking into
consideration the mental suffering and financial loss
suffered by him. While dismissing the appeal it was observed
that since the appeal fails for non-compliance of Section
197 and the order discharging the accused has to be upheld
we do not propose to examine the finding if authorisation
under O.S Act and A.E Act to prosecute the accused was valid
or not." It transpires from the record that a review
petition filed by the applicant inter-alia to invite a
finding on the validity of consent and authorisation to
prosecute him and against the order ‘findings’ as recorded
by this Court has also been since dismissed by this Court.
In criminal appeal No. 277 of 1993, arising out of SLP
(Crl.) No. 987/92, this Court set aside the order of the
High Court dated 14th October, 1991 made in criminal
miscellaneous application No. 2260 of 1991. The short
question which was considered by this Court in that appeal
was whether the High Court was justified in allowing the
application filed by the respondent for declaring that the
charges framed by the Additional Sessions Judge against him
by the order dated 24-27th July, 1990 were null and void"
and obtained by ’fraud" practised by the State and the
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public prosecutor. While elaborately dealing with the
submissions made at the bar, this Court observed:
"Merits or otherwise of the
application, alleging fraud against
the State, apart, what has left us
completely surprised is not so much
the entertaining of the application
filed by the accused for
declaration that the charges framed
against him were nullity having
been procured by fraud as the
procedure adopted by the learned
Single Judge of granting the prayer
merely for failure of the State to
file any reply by way of counter
affidavit than by recording any
finding that the State was guilty
of procuring the order framing the
charges by fraud. One of the
objections raised by the State was
that since the High Court by its
order passed on 25/26th March 1991
in Criminal Writ Petition No. 966
of 1990 had specifically held that
the question of framing charge had
become final, therefore, it could
not be re-opened, cannot be said to
be without substance as the
Division Bench had clearly held
that it was not open to go behind
the order passed by the learned
Single Judge on 3rd/4th April 1990
directing that the charges be
framed against the accused not only
under Section 3 but under Section 5
as well. Nor can any exception be
taken to the finding of the Bench
that the said order could not be
said to have been passed without
jurisdiction in as much as the
learned Single Judge had
jurisdiction to decide the revision
application preferred under the
provisions of the Code. Even the
question of fraud raised by the
accused was negatived by the
Division Bench and it was held that
it was not capable of being gone
into as it did not form part of the
substratum of the case of the
prosecution and was not germane to
the question of deciding as to
whether he was entitled to be
discharged or not."
The Court then opined that the allegation that the
framing of charge was procured by "fraud" was made without
necessary foundation for the charge of fraud having been
laid in the petition. The Bench also noticed that in
paragraphs 4 to 8 (of his application) the applicant had
culled out sentences from one or the other order rendered
for or against him by different courts and on that basis had
claimed that State either knowingly did not place correct
facts to substantiate the observations made therein or
deliberately concealed the truth and made fraudulent
submissions thereby inducing the trial court to frame the
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charges. The Bench quoted in extenso paragraphs 4,5 and 7 of
the application in that behalf and observed :
"We must confess our inability to
appreciate the worth of such
averments to establish fraud. Legal
submissions cannot be equated to
misrepresentation. In our opinion
the pleadings fell short of legal
requirements to establish fraud.
Various sentences extracted from
different judgments between the
accused and State in various
proceedings could not give rise to
an inference either in law or fact
that the State was guilty of fraud.
Suffice it to say that it was
complete misapprehension under
which the accused was labouring and
it was indeed unfortunate that the
High Court not only entertained
such application but adopted a
course which amounted to reviewing
and setting aside orders of his
predecessor without sufficient
material and accept the claim that
all earlier judgments were liable
to be ignored under Section 44 of
the Evidence Act as the proceedings
were vitiated by fraud. We are
constrained to say that the learned
Judge not only committed an error
of procedure but misapplied the
law." (Emphasis supplied)
The appeal filed by the State (criminal appeal 277/93
arising out of SLP (Crl.) No. 987/92) was allowed on
16.3.1993 and the order made by the High Court on 14.10.1991
in Criminal Miscellaneous Application No. 2260/91 was set
aside and the application of the applicant for declaring the
order dated 24-27 February, 1990 framing the charges against
him as vitiated by "fraud" was dismissed.
We have referred to the history of the case only to
show how the applicant has, thanks to the permissiveness of
the judicial system, filed one petition after another to
question the validity of the charges framed against him even
after an order of discharge came to be made in his favour.
The present petition under Section 340 Cr. P.C. against the
then Attorney General of India and the Chief Vigilance
Officer of the Department of Atomic Energy also appears to
be an attempt to carry on with the ’litigation’ undaunted by
the orders made by this Court in Criminal Appeal Nos. 275-
277 of 1993 on 16.3.1993.
The main grounds on which this petition under Section
340 Cr. P.C. is founded are that according to the applicant,
the "consent" given by the then Attorney General of India
(Respondent No. 1) and the ‘authorisation’ given by the then
chief Vigilance Officer (Respondent No. 2) were "false
statements" as there was, according to him, no material
before either of the two respondents, on the basis of which
they could have given their "consent: and ’authorisation’
for his prosecution. The applicant, has alleged that
respondent No. 1 without "due care and attention" and
without ‘sufficient and proper application of his mind’,
made ‘false’ statement of the effect that the record
concerning technical material placed before him, had
‘satisfied’ him that the provisions of Section 18 of the
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Atomic Energy Act 1962 were attracted against the applicant
and since the document dated 9.8.1988 (order conveying
consent) containing the said ’false statement’ made by
respondent No. 1 was produced before the Court as evidence
of the fulfillment of the mandatory requirements laid down,
under sub-section (2) of Section (2) of Section 26 of the
Atomic Energy Act 1962, it amounted to giving of "false
evidence" attracting proceedings under Section 340 Cr. P.C.
against respondent No. 1. It is also alleged that by giving
his "consent" respondent No.1 had "created falsity" for the
department of Atomic Energy to give its "illegal
authorisation" on behalf of the Central Government and that
these actions of respondent No. 1 also amounted to
fabricating " false evidence" and producing "false
documents" before the Court. So far as the ‘authorisation’
given by the Chief Vigilance Officer is concerned the
applicant alleges that the Chief Vigilance Officer
(respondent No. 2) ‘without due care and attention’, and
‘without any authority’ had signed and issued letter No.
JS(B)/CVO/16/88 dated 16.8.1988 giving ‘authorisation‘ on
behalf of the Central Government to prosecute the applicant
’in camera’ for the alleged contravention of Sections 18 and
19 of the Atomic Energy Act and since the ’authorisation’
issued by respondent No. 2 to prosecute him was ‘illegal’
and made ’without due care and attention’ and ’without any
authority’ respondent No. 2 had committed "perjury". The
applicant then states that the document containing the
illegal ’authorisation’ issued by respondent No. 2 was
produced as evidence of the fulfillment of the mandatory
requirement prescribed under clause (b) of sub-section (1)
of Section 26 of the Atomic Energy Act, it had caused a
"circumstance" for the Magistrate to entertain the erroneous
opinion that the bar for taking cognizance placed by clause
(b) of sub-section (1) of Section 26 had been overcome
thereby making him to take cognizance and issue process
against the applicant, which action had ’deprived the life
and liberty’ of the applicant.
The appellant also alleges that his ’prosecution’ was
’illegal and unjustified’ and that respondent No. 1 and No.
2 also committed an offence of criminal conspiracy under
Section 120A of the Indian Penal Code.
The applicant has made the following prayers in his
application:
(1) That this Hon’ble Court may be
pleased to:
(i) record a finding that it is
expedient in the interests of
justice that an inquiry should be
made into the offences punishable
under Section 193, 195 and 196 and
also Section 120B of the Indian
Penal Code and the abetment thereof
which appear to have been committed
by the respondents No.1 and No. 2
above named;
(ii) make a complaint thereof in
writing; and
(iii) send it. to a Magistrate of
the first class having
jurisdiction.
(2) That this Hon’ble Court may be
pleased to direct the Magistrate
who is to act upon the complaint of
this Court, that it during the
inquiry it is found that there are
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others whose actions or omissions
would amount to an of the offences
mentioned in Section 195(1)(b) of
the Criminal Procedure Code or any
other offences, to proceed against
them also according to law.
(3) That this Hon’ble Court may be
pleased to direct the Registrar of
the Supreme Court to take necessary
action and ensure that the sanction
under Section 197 of the Criminal
Procedure Code from the Central
Government is forwarded to the
concerned Magistrate to prosecute
the respondents No. 1 and No. 2, as
per the complaint made by this
Court under Section 340 of the
Criminal Procedure Code.
Leaving out. unnecessary and repetitive submissions,
what can be culled out from the averments made by the
applicant in the memorandum of the present application, is
that respondent No. 1 and respondent No 2 had given their
"consent" and "authorisation" for his prosecution on behalf
of the Central Government, "without due care and attention"
and ’without proper application of mind’ and had thereby
given "false evidence", and "fabricated false evidence" for
use in judicial proceedings, which evidence became the basis
of his prosecution.
The applicant, it appears to us is labouring under
grave misconception both of law and facts and has filed this
petition unmindful of the scope of the provisions of Section
340 Cr.P.C. as will as of Sections 191, 192 and 193 IPC. By
no stretch of imagination on the basis of the allegations
made in this application can it be said that either
respondent No. 1 or respondent No. 2 had ’fabricated false
evidence or had given false evidence while giving ’consent’
and ’authorisation’ as required by law for the prosecution
of the applicant in discharge of their official duties. A
bare look at Sections 191 192 and 193 IPC would show that
the said provisions have no application to the case. Neither
Respondent No. 1 nor Respondent No. 2 can be said to have
given ’false evidence while giving the "consent and
"authorisation" unless the expressions ’false’ and
’fabricated are used as an "abuse" rather than in the legal
sense as defined in Section 191/192 IPC. How the applicant
can allege that the recording of ’satisfaction" by the
Attorney General was a "false statement" defies logic and
sense? The accusation is reckless and bereft of any factual
foundation. It deserves notice that neither the trial court
nor even the High Court in its various orders made for or
against the applicant or this Court while dealing with the
orders arising in the case against the, applicant has
returned any finding even prima facie, that the ’consent’ or
the ’authorisation’ given by respondents No.1 and 2 amounted
to the giving of ’false evidence’ or ’fabricating of false
evidence’. According to the applicant, the ’consent’ was
given by the then Attorney General of India ’without due
care and attention and even if this submission is, for the
sake of arguments, accepted (though there is no basis for
accepting the same), we are of the opinion that it cannot
lead to, an inference that the document conveying consent
was a ’false document’ or that giving of ’consent’ amounted
to giving of ’false evidence’ or ’fabricating false
evidence’ at any stage of judicial proceeding. There is no
’prima facie’ material on the record from which any
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inference may be drawn that either Respondent No.1 or
Respondent No. 2 gave ’false evidence’ in the Court.
Considering the submissions of the applicant, stripped to
their bare essentials, the factual matrix on which
allegations have been made against respondents Nos. 1 and 2
do not attract the provisions of Sections 191, 192 or 193
IPC. The filling of the present application appears to us to
be an effort to get ’reopened’ the case even after this
Court decided criminal appeal No. 275-277 of 1993 on
16.3.1993 and dismissed the review petition also more than
three years ago. Finality must attach to some stage of
judicial proceedings. The course adopted by the applicant is
impermissible and his application is based on misconception
of law and facts. No litigant has a right to unlimited
drought on the court time and public money in order to get
his affairs settled in the manner as he wishes. Easy access
to justice should not be misused as a licence to file
misconceived or frivolous petitions. After giving our
careful consideration to the submissions made at the bar as
well as those contained in the memorandum of the
application, we are of the opinion that this application
is misconceived, untenable and has no merits whatsoever.
It is accordingly dismissed.