New Delhi: A Delhi court on Monday reserved its judgment on the bail application of journalist Rajeev Sharma, who was arrested on September 14 by the Special Cell of Delhi Police under the Officials Secrets Act on charges of leaking classified military documents to China.
Earlier, on Sunday evening, Sharma was sent to judicial custody.
Moving his bail application today in the court of chief metropolitan magistrate Pawan Kumar Rajawat, Sharma’s lawyers, senior advocate Dr. Adish C. Aggarwala and advocate Amish Aggarwala, submitted before the court in writing that he should be granted bail as the arrest was “illegal”, and the Investigating Officer had “maliciously” not just held back the material allegedly uncovered so far, but also failed to produce the FIR on time, produced the Case Diary for signing of the Court, and refused to share any information as to the manner of investigation done to the Court.
“The role of the Magistrate is not just to decide Bail and Remand Applications, but also to monitor investigation, and ensure that the law of the land is followed,” Sharma’s lawyers pleaded and contended that the Investigating Officer had “deliberately made vague accusations about confessional statement of the Applicant”. They argued that if the Applicant had confessed to the allegations, then it was most pertinent to ask who was the source of the allegedly confidential information which was supplied to the Applicant.
“It is not the case of the Prosecution that the Applicant was charged with the custody of any sensitive national information as a Government Servant. It is also not the case of the Prosecution that the Applicant is a hacker, or possesses some other means by which sensitive information could be obtained by him unbeknownst to the the custodian of the sensitive information alleged to have been breached. In such situation, there is severe contradiction in the stand of the I.O. to suggest on one hand that the Applicant has confessed, and on the other that no Government Servant has been disclosed to be a co-offender who would have leaked the said information,” the said. They further stated that Sharma had clear antecedents and there was no possibility of him fleeing from justice, influence witnesses or tamper with evidence. “In fact, the I.O. himself has stated that the incriminating material has already been recovered by the Applicant,” they said. They also cited the Supreme Court’s view that that gravity of the offence is only one of the considerations to determine the bail application of an accused.
Sharma’s counsels moved his bail plea on these following grounds:
a) 61-year-old Sharma was a patient of high blood pressure and was suffering from acute case of sinus problems. He required constant treatment from a nebulizer, and had undergone two surgeries for sinus and therefore he stood to high risk to COVID-19.
b) The copy of the FIR against Sharma was “illegally” not uploaded on the website and the same was also neither filed before the Court, nor even filed with Naib (Prosecution). FIR is to be sent to concerned court within 24 hours even if it may relate to sensitive offence. It was not done. But FIR was antedated. It was only after 11 days of arrest that it was submitted before the Court of Chief Metropolitan Magistrate, New Delhi on 24.9.2020, and that too after moving application to the court for supply of copy of FIR. The accused also made many requests for supply of FIR, and he counsel also moved application on. 17.9.2020 and copy of FIR was provided by court on 24.9.2020 i.e after both remands.
In this case, Investigating Officer who is of Sub Inspector rank, himself decided that “Keeping in view the sensitivity of the input, the FIR may be sealed and not to be uploaded at Public Domain” while as per Supreme Court judgment in Youth Bar Association of India V/s. UOI & Others, it has been held that “the decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post”.
c)The FIR dated 13.9.2020 was not sent forthwith to the concerned Court of Chief Metropolitan Magistrate, Patiala House Courts, New Delhi till 24.9.2020 (on 12thday). An application was moved to Court on 17.9.2020 but the Court Master told the counsel that this FIR was received in court and that this application should be moved on 21.9.2020 when Investigating Officer will be in the court as he will be bringing the accused to court as on that date, police remand period will be over. Without having FIR, accused could not effectively move Bail application which resulted in deprivation of his legal right of being defending himself in a false case.
d) Complainant and Investigating Officer should not be same person and if same is the complainant and IO, then accused is entitled for acquittal: In the present case of Rajeev Sharma, Complainant is Sub Inspector Pradeep Singh and Investigating Officer is also Sub Inspector Pradeep Singh. This is evident from the contents of FIR.
The Supreme Court in Mohan Lal vs. State of Punjab Criminal Appeal (No. 1880/2011 (2018) SCC online SC 974) had decided on 16.8.2018 that “a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.”
e) FIR in question also does not contains the signature of the complainant in Column 14.
f) Para 15 of FIR also does not disclose the date and time of despatch to the Court as the same was sent in sealed cover on 24.9.2020 i.e. on 12th day of registration of FIR.
g) The Police deliberately avoided the production of the case diary before the Metropolitan Magistrate at the time of seeking Police Remand and extension of Police Remand which was a must as per Delhi High Court Rules – Vol III, Chapter 11, Part B, Rule 3 which mandates: “The Magistrate shall sign and date every page of the case diaries or copies thereof in token of his having seen them.”
h)Requirements of Section 11(3) of Official Secrets Act, was not complied with by the Investigation Officer in the matter of Search Warrant. After obtaining Search warrant from Deputy Commissioner of Police, the District Magistrate or Sub-Divisional Magistrate of the area was not informed about the issuance of Search Warrant by the DCP. “Therefore, the search dated 14.9.2020 at the residence of Mr. Rajeev Sharma has become illegal.”
(Official Secrets Act under Section 11:
11. Search-warrants.—
(1) If a Presidency Magistrate, Magistrate of the first class or Sub Divisional Magistrate is satisfied by information on oath that there is reasonable ground for suspecting that an offence under this Act has been or is about to be committed, he may grant a search-warrant authorising any police officer named therein, not being below the rank of an officer in charge of a police station, to enter at any time any premises or place named in the warrant, if necessary, by force, and to search the premises or place and every person found therein, and to seize any sketch, plan, model, article, note or document, or anything of a like nature, or anything which is evidence of an offence under this Act having been or being about to be committed which he may find on the premises or place or any such person, and with regard to or in connection with which he has reasonable ground for suspecting that an offence under this Act has been or is about to be committed.
(2) Where it appears to a police officer, not being below the rank of Superintendent, that the case is one of great emergency, and that in the interests of the State immediate action is necessary, he may by a written order under his hand give to any police officer the like authority as- may be given by the warrant of a Magistrate under this section.
(3) Where action has been taken by a police officer under sub-section (2) he shall, as soon as may be, report such action, in a Presidency-town to the Chief Presidency Magistrate, and outside such town to the District or Sub-divisional Magistrate).
i) Statute requires that order of remand has to be supplied to the accused also. This was not done in the case of first remand. Even the concerned papers of first remand application and remand order is not in the judicial file, which has been observed after inspection of judicial file of this court.
j) Copy of reply to bail application not given in spite of moving application to this court and letter dated 21.9.2020 to Joint Commissioner of Police and Deputy Commissioner of Police. “This has been done with a mala fide intention to deprive the accused of an opportunity to effectively oppose custody.’
k) First Remand was illegal : As per Delhi High Court Rules – Vol III, Chapter 11, Part B, Rule 12, accused has the right to oppose the Remand Application. Neither the accused nor any family member was informed about the name of the Magistrate nor the name of the court where the accused was to be produced on 15.9.2020. Therefore, the accused was deprived the right to engage a lawyer to oppose the remand on 15.9.2020; The accused has the right to have the copy of remand application so that he can effectively oppose the Remand application. In the present case, the Accused was not provided the Remand Application dated 15.9.2020. Once the accused has the right to oppose the Remand Application, then he has a right to have the copy of Remand Application so that he can make submissions.
It may be pointed out that the FIR against Sharma stated that an input from Indian Intelligence Agency was received by the Duty Officer, Special Cell of police, New Delhi, on 12-09-2020, “through proper channel”. The input was that “Sharma has been having links with foreign intelligence officer and he has been receiving funds from his handler through hawala and Western union money transfers platform for conveying sensitive information having bearing on National Security and Foreign relation, to his handler based abroad, through electronic means”.
The FIR further read: “The same was marked to me for further and necessary action. From the contents of input, prima facie an offence u/s 3/4/5 Official Secrets Act is made out. Hence, a case u/s 3/4/5 Official Secrets Act, be registered and investigation be entrusted to undersigned. Keeping in view the sensitivity of the input, the FIR may be sealed and not to be uploaded at Public Domain. Sd/- English SI Pardeep Singh, No. D-5775 PIS No. 16140182 Special Cell, South-West Range, Delhi Date: 13-09-2020……………………”
It may be mentioned that Sharma, a freelance journalist, had earlier worked for several newspapers and has also written books on strategic affairs.
– globalbihari bureau
