3 Jan 2011

Witholding State Secrets from accused not against fair trial: High Court

As a lawyer one comes across various types of judges and various types of practices adopted in a court room. While the substance of the legal principles required to be observed is followed in essence, it may be so done in different names and manners. For illustration, one of the mandatory conditions for a decision to be sustained is that it must have been passed following the principles of natural justice. These require that the accused/delinquent must be given full opportunity to defend himself. As one of the judges used to put it, "hear them before you hang them", thus the accused was required to be heard. 

However can an accused defend himself in a matter where he is implicated for leaking official documents and these documents are not given to him at the time of trial to defend himself. The requirements of fair-trial are that the accused must be supplied with all the incriminating material that is to be used against him in the trial. However, being of the view that when the documents in question are State Secrets and handing them over to the accused may lead to putting into jeoparty the security of the country, the Delhi High Court in a recent decision [Jarnail Singh Kalra v. CBI] has held that such documents need not be given to the accused and denial of such documents does not imply non observance of the requirement of fair-trail.

The High Court inter alia observed as under;
5. Under Section 3 of Official Secrets Act mere possession of Secret official code or password, 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 or security of State has been made offence. In the present case copies of certain official notings and documents were recovered from the accused which related to classified information regarding defence of the Nation. The prosecution had prepared a memo of documents and the nature thereof and the same has been handed over to accused. The contention of the accused is that the copies of those documents which were recovered from him be handed over to him under Section 207 Cr. P.C. If the documents had been de-classified and the stand of the state had been that these documents were no more classified or secret, there was no difficulty in handing over these documents to the accused. However, so long as the documents remain classified and secret handing over of copies of those documents, to accused and possession of such documents by anyone would amount to an offence under Section 3 of Official Secrets Act.
6. The purpose of legislature in providing Section 173 and 207 of Cr. P.C. was to see that accused gets a fair trial. The purpose was not to see that the offence is again repeated. It is not that fair trial cannot take place without giving the secret documents recovered from the accused back in the hands of accused during trial. It would be sufficient if recovery of these documents is proved during trial by producing the recovered documents at the time of evidence before the court concerned for perusal that these documents were confidential and secret document and then again retaining them by prosecution. A secret disclosed to more number of persons does not remain a secret. There is every likelihood, that once the documents are given in the custody of accused or his counsel for the purpose of conducting trial, they would not remain secret nor there is a guarantee that the documents when placed on court records would not fall in the hands of scrupulous elements and misused. Therefore, State’s insistence that copies of these documents should not be supplied to the accused is justified. It need not be emphasized by this Court that neither the court records are preserved or guarded in such a manner that they do not fall in the hands of unscrupulous elements neither the accused or counsel for accused can give a guarantee about the documents given to them would not fall in the hands of unwanted person.
7. If the State has chosen not to give copies of these documents for the reasons of the security of Nation, no fault can be found with the State. Ultimately the guilt of the accused has to be decided at the end of the trial and not before trial and if the Court comes to a conclusion that non supply of these documents caused a prejudice to the accused and the accused was not able to prepare his defense adequately, the court can always acquit the accused. The prosecution has a right of choice, to insist that it would not hand over these documents even at the cost of ultimate acquittal of the accused, and the court cannot force the prosecution to hand over the secret documents to accused at the cost of security of Nation.
8. I also consider that it is not the law that every incriminating material which is recovered from an accused has to be produced in the court in the same shape and order, in order to prove that the incriminating material was recovered from the accused nor it is necessary that a copy of every incriminating document should be furnished to the accused in order to ensure fair trial to the accused. Say, in a case under Arms and explosive Act when a time bomb or other explosive substance is recovered at the instance of accused which is necessarily required to be defused, it would not be necessary for prosecution to produce the time bomb or other explosive substance in the same condition in which it was recovered. It is sufficient if the time bomb is defused and a memo of its recovery showing what were the constituents of time bomb is prepared and a copy of memo is handed over to the accused during trial and the defused time bomb is produced at the time of trial. Similarly, if highly radioactive material is recovered from any person, it is not necessary that such radioactive material should be even brought to the court. It would be sufficient if a memo of material is prepared about the recovery of radioactive material and a report of expert regarding the nature of radioactive material is produced in court and copy thereof is given to the accused. In such circumstances, it cannot be said that a prejudice was caused to the accused. Similarly, in case of perishable things, an order can be obtained from the court about the disposal of such things and still the recovery can be proved from the accused on the basis of order so obtained. Similarly, in the cases of offences under Narcotics drugs it is not necessary for the accused to insist that he should be given a sample of the drug recovered from him. It is sufficient if a memo of recovery of Narcotics substance is prepared and at the time of trial, it is proved that Narcotics substance was recovered and it was tested in laboratory and found to be a prohibited substance under NDPS Act.
9. I consider that where handing over sample of a substance or a copy of recovered document in the hands of accused itself amounts to an offence, the accused cannot insist, during trial that the same should be supplied to him and without that his right to fair trial stands prejudiced.
10. A fair trial has to be fair to the State and to the accused. If the State considers that official secrets found in the possession of accused were such sensitive that handing over the copies of those secrets documents to the accused, counsel or to the Court would prejudice the security of the State or shall affect the security of the State or Nation or would put some person’s life in danger (like a list of undercover agents) the State will have a right to withhold those documents. The court cannot compel that those disclosure should be given to the accused at any cost because right of accused involved in that offence shall be prejudiced. I, therefore, consider that the court cannot compel the State to give those documents which the State considers to be sensitive and confidential and disclosure of which was prejudicial to the interest of the State. The accused at the end of trial can argue how the non disclosure of documents resulted into miscarriage of justice, if any, and convince the Trial Court about his stand but cannot insist that the copies of secret documents must be supplied to him.

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