SC: Can’t use OSA to deny accused access to documents relied on by prosecution

NEW DELHI: Holding that it is part of an accused’s right to fair trial that he gets access to documents relied upon by the prosecution, Supreme Court has said invocation of the Official Secrets Act (OSA) cannot take away the right of the accused person to get copies of the documents forming part of the chargesheet even if they are highly classified and confidential pertaining to national security.

A bench of Justices J K Maheshwari and Atul S Chandurkar directed the Centre to provide the alleged secret confidential documents to Major General V K Singh (Retd), who is facing prosecution under OSA.

Give Maj Gen copies of ‘secret documents’: SC to govt
Major General V K Singh (Retd), who also worked as a joint secretary in the Cabinet Secretariat (RAW) from Nov 2000 to June 2004 but has been charged for allegedly revealing classified information in his book titled “India’s External Intelligence – Secrets of Research and Analysis Wing (RAW)”. SC directed govt to provide typed copies of the alleged secret confidential documents to him within two months and directed him not to share the documents with anyone or make them public.

“It is trite law that an accused cannot be denied access to documents forming part of the chargesheet, including those from the general diary, if such documents were obtained in good faith, are relevant to the prosecution’s case, and their disclosure is considered necessary by the public prosecutor for the interests of justice and fair trial. It is so because withholding such documents could seriously prejudice the accused’s right to a fair trial,” the bench said.

“Being part of the chargesheet and being used against the said documents ought to be supplied to the appellant. While observing so, we are guided by the letter and spirit of Section 207 of the CrPC,” the bench said while allowing Singh’s plea. “The documents as demanded and supplied shall not be made public by way of electronic or print media or social platform or otherwise. An undertaking in this regard shall be filed by Singh before the trial court within one month.”

Section 207 mandates when criminal proceedings are instituted, the magistrate must provide accused, free of charge, with copies of any document or relevant extract thereof including police report, FIR, and witness statements recorded under Sec 161 of CrPC.

A case against Singh was registered in 2007 and is being tried for Section 3/5 of OSA and Sections 409/120B of IPC.

The prosecution alleged he published in his book various classified secret information, including the names of various officials and their designations, functions, station codes, various technical projects, and the functioning of the telecom division and signals intelligence, including that of SPGs in complete violation of OSA. It was alleged that he enabled the general public and foreigners/foreign countries to know the classified secrets of the State that have endangered security as well as sovereignty of India.

The CBI invoked Sec 14 of OSA to deny access to those documents, but SC rejected the plea and said such interpretation of the section would make it ultra vires to Part III of the Constitution.