Holding

Section 14 of the Official Secrets Act is only an enabling provision to hold proceedings in camera and does not bar the accused from obtaining copies of statements nor contain a non‑obstante clause; the defence counsel’s privilege under Section 126 of the Evidence Act stands.

Summary

The State charged Satyen Bhowmick and others under the Official Secrets Act for passing military secrets. During a commitment inquiry the prosecution invoked Section 14 of the Act to hold the trial in camera and to bar the accused from obtaining copies of witness statements. The magistrate allowed the defence counsel to take notes but later demanded the notebooks, which the counsel refused to produce, invoking privilege under Section 126 of the Evidence Act. The High Court reversed, holding that Section 14 also prohibited the accused from receiving copies of statements and that the lawyer could be compelled to produce his notes. The Supreme Court held that Section 14 merely enables exclusion of the public and does not contain a non‑obstante clause nor does it deprive the accused of the statutory right to obtain copies of statements; the lawyer’s claim of privilege was valid and the magistrate’s order was proper. Consequently, the High Court’s view was overruled and the appeal was allowed, with the matter remitted to a magistrate for further proceedings.

Issues considered

The scope of Section 14 of the Official Secrets Act – whether it authorises denial of the accused’s right to obtain copies of witness statements and other evidence.
Whether the opening words of Section 14 constitute a non‑obstante clause that overrides procedural provisions of the Code of Criminal Procedure.
Whether a defence advocate can be compelled to produce his note‑book or whether privilege under Section 126 of the Evidence Act applies.
The propriety of the magistrate’s order allowing the defence counsel to retain notes and refusing to compel their production.

Legislation cited

Code of Criminal Procedure, 1973s. 207, s. 251A, s. 252, s. 548
Indian Evidence Act, 1872s. 126
Official Secrets Act, 1923s. 10, s. 14, s. 3, s. 5, s. 9

Subjects

Official Secrets ActSection 14in‑camera trialprivilege of communicationSection 126 Evidence Actright to copies of statementsnon‑obstante clausecriminal procedureArticle 21 constitutional rightpublic exclusion

Judgment

661

• SUPERINTENDENT & REMEMBRANCER OF LEGAL AFFAIRS, A
WEST BENGAL
v.
SATYEN BHOWMICK AND ORS.
January 15, 1981 B
[S. MURTAZA FAZAL Au AND A. VARADARAJAN, JJ.]

Official Secrets Act-Section 14-Scope of-Advocate taking, notes on
evidence of witnesses in respect of proceedings held in camera-Court, if could
. prohibit taking notes-Court 'if could compel the advocate to produce his notes
for inspection-Advocate if could claim privilege under section 126 of Evidence C
Act.

Section 14 of the Official Secrets Act provides that in addition to and without
prejudice to any powers which a Court may possess to order the exclusion of
the public from any proceedings if, in the course of proceedings before a Court
against any person for an offenc.e under this Act, the prosecution makes an
application that publication of any evidence to be given would be prejudicial D
to the safety of the State. The Court may make an order prohibiting the
publication of evidence to be given or of any statement to be made in the
course of proceedings if it is of opinion that the proceedings 'vould be prejudicial
to the safety of the State.

On the allegation that the accused had passed on some military secrets to
the enemy resulting in serious detriment to the safety and security of the country E
the accused were charge-sheeted under sections 3, 9 and ,10 of the Act.

During the commitment inquiry the prosecution prayed that the accused
should not be allowed to have access to or be given copies of statements of
witnesses recorded by the Magistrate. The defence lawyers were allowed to
take notes of the statements of witnesses. When the Magistrate asked the
defence Ja,vyers to produce their note-books for perusal, they claJmed privilege F
under section 126 of the Evidence Act on the ground that they contained certain
instructions given to them by the accused which amounted to privileged com-
munication a·nd that for this reason they could not be looked into by the Court.
The Magistrate upheld the objection .
•
Purporting to folloW one of its earlier decisions the High Court in a revision
filed by the State held that the Magistrate should have taken legal action against G
·the lawyer for flouting its order by not producing the note-books on the ground
of privilege. It also held that in view of the provisions of section 14 of the
Act not only could the public be excluded from the hearing but evP:n the
statements of witnesses recorded by the C.ourt could not be made available to
the accused or his counsel.
•
• In appeal to this Court it was contended that the opening words of section 14 H
really amounted to a non-obstante clause overriding the provisions of all Acts
including the Code of Criminal Procedure and the mode of trial contemplated
'hy section 14 would take precedence over the mode of trial provided bys. 251-A
662 SUPREME COURT REPORTS [1981] 2 S.C.R,

A ors. 252 of the Code and (2) the l\,Iagi~rr:-:tc could not only hold the proceedings •
in camera but could exclude publication of any evidence, including the right
of accused to get notes of the statements recorded during the police investigation
or during inquiry or trial.
HELD : The opening words of section 14 '·in addition and without prejudice
to any powers \Vhich a Court may possess" clearly rev~al that the intention
B of the legislature was to give only an enabling additional power to the Court
regarding holding of the proceedings in camera. The legislature never intended
that the inherent powers possessed by the Court to hold the proceedings in
camera in suitable cases should in any way be affected by section 14. The
intention was merely to give an addition<il power to strengthen the hands of
the Court for holding the proceedings in camera where tbe necessities of the
situation demanded. [669F-H]
c It is we11 settkd that a non-obstante clause has the efft:l"t of overriding the
provisions of a law or of the law in which the said clause is inserted. The
non-obstante clause cannot reasonably be read as overriding anythil)g contained
in any relevant existing law which is inconsistent with the new enactment.
Normally a non-obstante clause is always expressed in a negative form i.e. by
using the words "notwithstanding anything contained" or "an:Ything contained
D in previous law shall not affect the provisions of a particular Act" and so on.
[670B-EJ
In the instant case the words "in addition and without prejudice to any
powers" cannot be construed to be a non-obstante clause at all so as to override
other provisions of the Act or those of the Code of Criminal Procedure.
[670EJ
E Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr. [1953] S.C.R.
referred to.
Interpretation of Statutes, Vepa P. Sarathi, 2nd Edn. referred to.
Section 14 not only confers powers on a Court for holding the proceedings.
in camera but also to exclude publication of any evidence \Vhich includes the-
right of the accused to get copies of the statements recorded during police
F investigation or during the inquiry or during tria-1. [670G]
The right to obtain copies of statements of witnesses recorded by the police
is a very valuable right because without having those statements in his posses-
sion, it would be difficult for the accused to defend himself effectively. If an
accused is not supplied either the statements recorded by the police or the
statements of witnesses recorded at the inquiry or the trial he cannot defend·
G himself and instruct his lawyer to cross-examine the witnesses successfully and
eITectively so as to disprove the prosecution cnse. [671D~E]
Section 14, therefore, could never have intended to take away or deprive
an accused of this valuable right which has been conferred on him by the •
Criminal law of the land. The first part of the section does not prohibit or
exclude giving to 3n accused person copies of the statements of witnesse"i either
during police investigation or in court but is mentioned merely as a motive or
H
reason for holding proceedings in camera. The entire sentence starting from
"application is m<tde by the prosecution on the ground that the publication of·
any evidence to he given or of any statement to be made in the course of the·
SUPDT. & REMEMBRANCER v. s. BHOWMICK (Faza/ Ali, J.) 663

• proceedings would be prejudicial to the safety of the State" that all or any
portion of the public should be excluded during any part of the bearing has
A·

to be read conjunctively as one composite sentence and there is no wan-ant for
truncating it into two separate parts dealing with diiierent subject matters. The
words 'publication of any evidence' do not indicate that the accused should
not be allowed access to the evidence recorded by the Court : they are merely
made to highlight the ground for holding the proceedings in camera because
if public are allowed to be present during the hearing the evidence which is B
recorded in their presence will amount to publication and it is in that sense
<done that the word publication -has been used in section 14. [671F-HJ

If it is held tbat section 14, by using the word 'publication' deprives an
accused of getting any copies of the statement of witnesses or of the judgment
under section 548 of the Code of Criminal Procedure or Criminal Rules of
Practice framed by the High Court then it would be difficult to uphold the C
constitutional validity of section 14 because in that event the procedure would
become extremely unreasonable, harsh and prejudicial to the accused as a result
of which the case would have been tried according to a procedure which was
not in consona·nce with the provisions of article 21 of the Constitution. [6720-H]
The apprehension that if the accused was allowed access to copies of state-
ments recorded by the police or the Magistrate it would amount to publication,
is not well founded. Under the provisions of section 5 of the Act, any person
who is found in possession or control of any document or information and
niak.es it public would also be deemed to have committed an offence under
that section and would be prosecuted and liable to a heavy penalty. This
prohibits even the lawyers from disclosing the evidence outside the Court.
[673B-C]

In the instant case the Magistrate \Vas fully justified in not compelling the E
lawyer to surrender his register which contained a part of the privileged com-
1nunication and even if the lawyer had taken down the evidence in extcn<;o for
the Jimited purpose of using it to defend the accused or cros5-examine the
\vitnesses, he could not be prevented from doing so, nor does section 14
contemplate or· envisage such a course of action. [673E-FJ
The Superintendent and Reme1nbrancer of Legal Affairs, Wt>st Bengal v. F
Satyen Bhawrnik & Ors., A.I.R. 1970 C<llcutta 535, overruled.

Anthony A!lc11 Fletcher v. Starl' 78 Calcutta Weekly Notes 313 approved.

Narcsh Shridhar Mirajkar & On-. \'. State of Maharashtra & Anr. [1966} 3
S.C.R. 744 relied on.
G
CRIMINAi APPELLATE JL'RISDICTION : Criminal Appeal No. 368
ol 1975
• Appeal by special leave from the Judgment and Order dated
5-4-1974 of the Calcutta High Court in Cr!. Revn. No. 193 of 1971.

• D. N. Mukherjee, M. M. Kshtriy11. A. K. Ganguli and G. S.
H
Chatterjee fo1 the appellant.
T. S. Arora for RR 1, 3 to 17.
664 SUPREME COURT REPORTS [1981] 2 S.C.R.
•
A Uma Dutta for Respondent No. 2.

The Judgment of the Court was delivered by
•
FAZAL Au, J. This appeal by special leave is directed against a
judgment dated April 5, 1974 of the Calcutta High Court by which the
order of the trial court was set aside and the case was remitted for fresh
'8
hearing in the light of the directions given by the High Court. The
High Court further directed that the Commitment Inquiry held by
Mr. R. P. Roy Chowdhury who was the Trial Magistrate, should be
held by some other Magistrate. /

The facts of the case lie within a very narrow compass and the
central controversy turns upon the interpretation of s. 14 of the Official
Secrets Act., 1923 (hereinafter referred to as the 'Act'). It appears
that a complaint was filed on the 20th March 1969 against 38 accused
persons under s. 120B of the Indian Penal Code read with sections 3
9, and l 0 of the Act. The charges against the accused were no doubt
very serious and concerned the security of the State, as the 2ccused
D
persons are alleged to have passed 011 some military secrets to the
enemy resulting in serious detriment to the safety and security of our
cormtry. _ Of the 38 accused persons named in the chargesheet, only
17 were in custody and a commitment inquiry into the charges was held
against them by the trial Magistrate.

During the commitment inquiry the State filed an application under
s. 14 of the Act praying that the proceedings be held in camera and
public should be excluded from attending the hearings of the case be-
cause the statements made in the course of the proceedings would be
prejudicial to the safety of the State. It was also prayed that apart
F from excluding the public from the hearings of the proceeding, the
accused should not be allowed to have access to, or be given copies of,
the statements of the witnesses recorded by the Magistrate or those
recorded earlier during police investigation. The Magistrate partly
allowed the application but permitted the defence lawyer to take
copious notes of the statements of witness·~s in order to be in a position
·G to cross-examine the witnesses. Subsequently, the Magistrate directed
the lawyer to produce his notebook so that the Magistrate may examine
if only a summary of the evidence had been taken by the lawyer or the •
statements had been taken in extenso in which case it would amount to
publication and, therefore, would be barred by s. 14 of the Act. The
lawyer of the defence appearing before the Magistrate first agreed to
show his note-book but later claimed privilege under s. 126 of the
~· Evidence Act on the ground that the register in which he had takeri
down the notes of the evidence also contained certain instructions given
SUPDT. & REMEMBRANCER v. s. BHOWMICK (Fazal Ali,!.) 665

I
to him which amounted to a privileged communication and could not A
be looked into by the Court. In this view of the matter the Magistrat~
found himself helpless and proceeded with the inquiry. As the prose-
• cution was nor satisfied with the procedure adopted by the Magistrate,
the State filed a revision before the High Court for quashing of the
order of the Magistrate in allowing the lawyer to cross-examine the
witnesses without impounding the notes comprising the statements of B
the witnesses taken down in extenso by the lawyer.
The High Court after hearing the counsel for the parties thoroughly
examined the entire position and ultimately came to a finding that the
Magistrate should have taken legal action against the lawyer for flout-
ing the orders of the Court by not producing the notebook on the plea C
of privilege which did not hold any water. The High Court was fur-
ther of the opinion that in view of the provisions of s. 14 of the Act
not: only could the public be excluded from taking part at the hearing
but even the statements of witnesses recorded by the court or other
documents could not be made available to the accused or his counsel
nor could copies of the said documents be given to the accused. In
this view of the matter the High Court quashed the order of the Magis-
D ..
trate and remitted the case to the trial court to be heard by some other
Magistrate in view of the directions given by it. Hence, this appeal to
this Court.
We have been taken through the entire judgment of the High Court E.
by the learned counsel for the parties. The two Judges who decided
the case agreed in the conclusion but have given separate reasons for
coming to the conclusion arrived at by them.
The only question that is to be determined in the present appeal is
as to the scope and ambit of s. 14 of the Act. Mr. Mukherjee, appear-
F.
ing for the State, however, submitted that on a close scrutiny of the
language employed in s. 14, it wonld appear that the statute contains
•~a two-fold bar-0) that publication of any evidence cannot be given,
and (2) that public should be excluded from attending the hearing of
the proceedings. The learned counsel appearing for the respondent
submitted that s. 14 does not in any way deprive the valuable right G
of the accused to get copies of the statements of witnesses recorded
during the commitment inquiry or the documents or statements record-
• ed by the police which is a statutory right conferred on the accused
under the Code of Criminal Procedure and the Criminal rules framed
thereunder by various High Courts. All that s. 14 prohibits is that the
public be excluded from attending the hearings of the inquiry. Since H.
the Magistrate had already acceded to this prayer of the accused, there
was nothing more that could be done by him.
666 SUPREME COURT REPORTS [1981] 2 S.C.R.

A
•
It appears that the Calcutta High Court has been consistently
taking the view as adumbrated by the learned counsel for the appel-
lant, viz., that the court has a discretion under s. 14 of the Act not
only to hold the proceedings in camera by excluding the public but
also has the discretion to prohibit publication of any evidence given
in the course of the proceedings.
B
In Rame11dra Singh v. Mohit Choudhary & Ors.(') a Division
Bench of the Calcutta High Court went to the extent of holding that
the Act prescribes a special procedure and, therefore, overrides the
/
procedure for trial under s. 251 A or 252 of the Code of Criminal
Procedure as amended by the Act of 1955. In this connection, the
c High Court observed as follows : -
"The prosecution is under the Official Secrets Act and, it
is unlikely that the Legislature would provide for a camera
trial and at the same time provide for giving copies of all
documents under section 173 to the accused. This strikes
0 at the root of secrecy and goes counter to the provisions of
trial in camera and this is why the Legislature purposely
used the word 'complaint' and provided for a special pro-
cedure regarding cognisance. This view finds support from
the provisions of Section 14 of the Act providing for camera
trial.
E
The Official Secrets Act provides for a special procedure
of com plaint and if it was upon a complaint by a person
authorised under the Act, cognisance was taken under Sec-
tion 190(1)(a)and not under Section 190(1)(b). The
procedure for trial would therefore, be under Section 252
F of the Code of Criminal Procedure and not under Section
251A. In respect of prosecution under Section 252 of the
Code of Criminal Procedure there is no compulsory provi-
sion for giving copies of documents referred to under Sec-
tion 173 and the opposite parties are not, therefore, en-
titled to copies as of right."
G
The decision under appeal follows the aforesaid decision and has
taken the same '~ew. In a later decision in In Re Anthony Allen
Fletcher v. State('), the Calcutta High Court seems to have struck a
slightly different note. In that case, the court was considering the
question of bail and the exclusion of the public from attending the
H bearing of the case, where the following observations were made :
(!) AIR 1969 Calcutta 535.
(2) 78 Calcutta Weekly Notes 313.
SUPDT. & REMEMBRANCER v. s. BHOWMICK (Fazal Ali, J.) 667

• '·On a consideration of the provisions of the Statute as
also the imprimatur of the judicial decisions, we ultimately
A

hold that in view of the specific provisions contained in Sec-
tion 14 of the Official Secrets Act, 1923 when it reasonably
appears to the Court that a trial eatiis apertfa would have
the risk of any publication of any evidence to be given or any
B
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 ex-
ercised by the Court to do justice."
It may be noticed that the High Court did not go to the extremr~ c
of holding that even the statements or evidence recorded by the Magis-
trate in the course of th~ proceedings would have to be excluded un-
der s. 14. All that was held by the High Court was that the Court
has a discretion to exclude the public from the proceedings and that
this power of exclusion was available to the court apart from the in-
herent power which ewry Court possessed in this matter. With dur' D
respect we find ourselves in agreement with the view taken by th'
Calcutta High Court in Fletcher's case (supra) as mentioned above.
However, we find ourselves unable to agree with the view taken b;r
the High Court in the judgment under appeal for the reasons that wt:
shall give hereafter.
E
We might also mention that s. 14 was interpreted by this Court in
Naresh Shridhar Mirajkar & Ors. v. State af Maharashtra & Anr. ( '),
where this Court while dealing with the question of holding procee-
dings in camera observed as follows : -
"Having thus ehnnciated the universally accepted pro-
F
position in favour of open trials, it is necessary to consider
whether this rule admits of any exceptions or not. Cases
may occur where the requirem~nt of the administration of
justice itself may make it necessary for the court to hold a
trial in camera. While emphasising the importance of pub-
lic trial, we cannot overlook the fact that the primary func- G
tion of the Judiciary is to do justice between the parties
who bring their causes before it. If a Judge trying a case
is satisfied that the very purpose of finding truth in the case
would be retarded, or even defeated if witnesses are required
to give evidence subject to public gaze is it or is it not open
to him in exercise of his inherent power to hold the trial in H
camera either partly or fully? .......... That is why we
(1) [1966] 3 S.C.R. 744
668 SUPREME tOURT REPORTS (1981] 2 s.c.R.

A feel no hesitation in holding that the High Court has inhe- •
rent jurisdiction to hold a trial in camera if th~ ends of jus-
tice clearly and necessarily require the adoption of such a •
course. . . . . . . . . It is the fair administration of justice which
is the end of judicial process, and so, if ever a real conflict
arises between fair administration of justice itself on the one
B
hand, and public trial on the other, inevitably, public trial
may have to be regulated or controlled in the interest of ad-
ministration of justice."

While interpreting the scope and ambit of s. 14 this Court inc
Naresh Shridhar Mirajkars case (supra) observed as follows : -
c "It would be noticed that while making a specific pro-
vision authorising the court to exclude all or any portion of
the public from a trial, s. 14 in terms recognises the exis-
tence of such inherent powers by its opening clause."
It may be pertinent to note that while this Court was fully alive to
D the contents of s. 14, it neither held that the opening part of the
section amounted to a non obstante clause nor that the section in any
way deprived the accused of the right of getting copies of the statements.
of witnesses recorded by the court or before the police. In the afore-
said case, the Supreme Court was concerned with a defamation case ·
but the obs.ervations made by this Court fully apply to the_ facts of
E the present case also on the view that we take: on. the scope and ·
ambit of s. 14 of the Act.
There can be no doubt that an open trial held in· public is the
general rule and seems to be the very concomitant of a fair and
reasonable trial, yet the public can be excluded from the hearings of
F the trial and the proceedings can be held in camera only under very
exceptional circumstances as pointed out by this Court in the afore- I
said rose. This being the position, section 14 must be interpreted so ~-".
as to fall in line with the observations made and the test laid down by
this Court regarding the doctrine of holding proceedings in camera.
A close and careful scrutiny of s. 14 would itself clearly show that
G the section does hot contemplate the type of exclusion that the High
Court seems to think.
It is true that offences under the Act are very serious offences and
maintenance of secrecy is of the very essence of the matter but that
by itself will not justify the legislature to pass an Act so as to deprive
H an accused of the valuable right to defend or for that matter to stifle
the defence itself. The importance of holding trial in camera in cases
under the Official Secrets Act has been emphasised iin R. v. Socialist -
~UPDT. & REMEMBRANCER v. s. BHOWMICK (Fazal Ali,!.) 6 69

• Worker Printers and Publishers Ltd. & Anr.(1), where Lord Widgery, A
C. J., observed as follows : -
"When one has an order for trial in camera, all the public
and all the press are evicted at one fell swoop and the en-
tire supervision by the public is gone..... The actual conduct
of the trial, the success or otherwise of the defendant, does B
not turn on this kind of thing, and very often the only value
of the witness's name being given as opposed to it being
withheld is that if it is published up and down the country
other witnesses may discover that they can help in regard to
the case and come forward."
c
With this background we shall now proceed to examine the langu-
age of section 14 of the Act itself which may be extracted thus : -
"14. Exclusion of public from proceedings.
In addition and without prejudice to any powers which
a Court may possess to order the exclusion of the public
D
from any proceedings if, in the course of proceedings before
a Court against any person for an offence under this Act or
the proceedings on appeal, or in the course of the trial of a
person under this Act, application is made by the prosecu-
tion, on the ground that the publication of any evidence to
be given or of any statement to be made in the course of the E
proceedings would be prejudicial to the safety of the State,
that all or any portion of the public shall be excluded during
any part of the hearing, the Court may make an order to
that effect, but the passing of sentence shall in any case take
place in public."
F
To begin with, the opening words of the section, namely, 'In
addition and without prejudice to any powers which a Court may
• possess' clearly reveal that the intention of the legislature was to give
- , Oll!y an enabling additional power to the court regarding holding the
proceedings in camera. In other words, the legislature never intended
that the inherent powers possessed by the court to hold the proceeding G
in camera in suitable cases would be in any way affected by section
14 but the intention was merely to give an additional power to streng-
then the hands of the court for holding the proceedings in camera
where the necessities of the situation demanded. Thus, to begin with,
section 14 is merely an enabling and not a barring provision. Mr.
Mukherjee argued that the opening woros of section 14, referred to B
above, really amount to a non-obstante clause overriding the provisiOllll
(l) [1975] l All ER 142.
!0-152SCI/81
670 SUPREME COURT REPORTS [1981] 2 S.C.R.
A of all Acts including the Code of Criminal Procedure and the mode
of trial contemplated by s. 14 would take precedence over the mode
of trial provided by s. 251 A or 252 of the Code of Criminal Procedure.
We are, however, unable to agree with this extreme argument wliich
in fact overstates the law. It is well settled that a non-obstante clause •
has doubtless the effect Olf overriding the provisions of a law or of the
B
law in which the said clause is inserted. Sarathi in 'Interpretation of
Statutes'''' defines a non-obstante clause thus : -
"A section sometimes begins with the phrase 'notwith-
standing anything contained etc.'. Such a clause is called a
non-obstante clause and its general purpose is to give the pro-
c vision contained in the non-obstante clause an overriding
effect in the event of a conflict between it and the rest of the
Secti-On."
In Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr.(').
Sastri, C.J., held that the non-obstante clause cannot reasonably be
read as overriding anything contained in any relevant existing law

•
0
which is inconsistent with the new enactment. These are the well
settled rules of interpretation of a non-obstante clause. Normally, a
non-obstante clause is always expressed in a negative form, that is to
say, by using the words 'notwithstanding anything contained' or 'any-
thing contained in a previous law shall not affect the provisions of a
E particular Act' and so on. In the instant case, the words 'in addition
and without prejudice to any powers cannot be construed to be a non-
ohstante clause at all so as to override other provisions of the Act or
those of the Code of Criminal Procedure. In these circumstances,
therefore, the argument of Mr. Mukherjee that the opening words of
s. 14 amount to a non-obstante clause cannot be accepted on a simple
F and plain interpretation of the opening part of section 14.
This takes us to the substantive portion of the Act on which re-
liance was placed both by Mr. Mukherjee and by the High Court so )
as to hold that the section not only conferred powers on a court foi:- .. t .
. holding the proceedings in camera but !llso to exclude publication of
iny evidence which includes the right of the accused to get copies of
the statements recorded during police investigation or during the in-
quiry or during trial. With great respect to the learned Jndges of the
Calcutta High Court, we feel that the main part of the section has not
;
been correctly inrerpreted by them. The High Court seems to have
taken for granted that section 14 consists of two separate parts, one,
providing for a trial in camera, and the other prohibiting publication of
H
•S:cond Bdn, P. 422.
: (I) [19531 SCR I,
SUPDT. & REMEMBRANCER v. s. BHOWMICK (Fazal Ali, J.) 671

evidence. By the expression 'publication of evidence' is meant, A
according to the High Court, the power to deprive an accused of the
right to get copies of the evidence recorded by the court or the statO.:'
ments recorded during the police investigation. We might mention:
here that as s. 13(3) of the Act clearly provides that no court shall
take cognizance of any offence under the Act except upon a complaint
made by or under the authority of the Government or any person em, B
powered by it, it is manifest that s. 251 A of the Code of Criminal
Procedure, as amended by the Act of 1955, will not apply because the
present case was not inslituted on a police report but on the basis of
a complaint. As the occurrence had taken place before the Code of
1973, therefore, the provisions of s. 207 of the Code of 1973 would
·not apply to the present case. c
The question, however, is: does the first part of s. 14 empower the
court to take away the valuable right of an accused of getting copies
of the statements recorded by the Magistrate before the Court ? Even
before the amending Act of 1955, under the criminal rules framed by
D
various High Courts, an accused was undoubtedly entitled to have
copies of the statements of witnesses recorded by the police. This is
a very valuable right because without having the statements recorded
by the police in his possession, it would be difficult, if not impossible,
for an accused to defend himself effectively. It is well settled that
fouler the crime the higher should be the proof. If an accused is not E
supplied either the statements recorded by the police or the statement
of witnesses recorded at the inquiry or the trial, how can be possibly
defend himself and instruct his lawyer to cross-examine the witnesses
successfully and effectively so as to disprove the prosecution case. We,
therefore, think that s. 14 could never have intended to take away or
deprive an accused of this valuable right which has been conferred on F
him by the criminal law of the land. The legislature when it passed
the Act in 1923 was aware of the provisions of the Code of Criminal
,!Procedure which had conferred the valuable right on an accused in
order to defend himself. Indeed, if any of these rights were to be
taken away, we should have expected a clearer and more specific
language used in section 14 to connote such an intention. Our read- G
ing of s. 14 is merely this : that the first part of the section does not
prohibit or exclude giving to an accused copies of the statements of
witnesses either during police investigation or in court but is mentioned
merely as a motive or reason for holding the proceedings in camera.
The entire sentence starting from 'application is made by the prosecu-
tion. on the ground that the publication of any evidence to he given H
or of any statement to be made in the course of tbe proceedings would
be prejudicial to tbe safety of the State, that all or any portion of the
672 SUPREME COURT REPORTS [1981] 2 S.C.R.

A public shall be excluded during any part of the hearing' has to be read
conjunctively as one composite sentence and there is no warrant for
truncating it into two separate parts dealing with different subject
matters. The words 'publication of any evidence' on which great stress •
has been laid by Mr. Mukherjee and the High Court do not indicate
that the accused should not be allowed access to the evidence recorded
B
by the court, are merely made to highlight the ground for holding the
proceedings in camera because if public are allowed to be present dur-
ing the hearing the evidence which is recorded in their presence it will
amount to publication and it is in that sense alone that the word 'pub-
lication' has been used in section 14. •
c Indeed, if the interpretation put by the High Court or by Mr. - ·
Mukherjee is accepted then the provisions of section 14 will have to
be struck down as being violative of Arts. 14 and 21 of the Constitution
of India.

This. Court has now widened the horizon of the concept of liberty,
D as contained in Art. 21 so as to give the word 'procedure' a very wide
counotation. In Maneka Gandhi v. Union of India (') while detailing
the attributes of a fair trial as contemplated in Art. 21 this Court
observed as follows : -
"The principle of reasonableness, which legally as well
E as philosophically, is an essential element of equality or non-
arbitrariness pervades Article 14 like a brooding omnipre-
sence and the procedure contemplated by Article 21 mnst
answer the best of reasonableness in order to be in confor-
mity with Article 14. It must be "right and just and fair"
and not arbitrary, fanciful or oppressive; otherwise, it would
F be no procedure at all and the requirement of Article 21
would not be satisfied."
Thus, if we hold that s. 14 by usin~ the word 'publication' deprives i_
an accused of getting any copies of the statement of witnesses or 'Of
the judgment under s. 548 of the Code of Criminal Procedure or
G Criminal Rules 308 and 3 IO framed by the Calcutta High Court, then
it would be difficult to uphold the constitutional validity of s. 14 because
then the procedure would become extremely unreasonable harsh and
prejudicial to the accused as a result of which the case would have
been tried according to a procedure which was not in consonance with
the provisions of Art. 21 of the Constitution. This aspect of the
H matter does not appear to have been considered by the High Court
perhaps because Maneka Gandhi's case (supra) came much later.
(I) [1978] 2 S.C.R. 621.
SUPDT. & REMEMBRANCER v. s. BHOWMICK (Fazal Ali,!.) 673
• Mr. Mukherjee submitted that if the accused is allowed to have A
access to the statements recorded by the police or is given a copy of
the statement recorded by the Magislrate, then it will amount to publi-
• cation and will en4anger the safety and security of the country becaus0
the accused or the lawyer who is defending the accused may publish
the statements or disclose the same to other persons. This apprehen-
sion, in our opinion, is not well founded. The Act itself takes parti- B
cular "care of such a situation because under the provisions of s. 5 of
the Act any person who is found in possession or control of any docu-
ment or information and makes it public would also be deemed to have
committed an offence under that section and would be prosecuted and
~ , entitled to a heavy penalty. This, therefore, prohibits even the lawyers
from disclosing the evidence outside the court. So far as the argu- c
ments and the discussion of the evidence inside the court is concerned,
so long as the proceedings are in camera the danger of publication is
completely excluded.
The High Court had been rather bitter on the trial Magistrate when
it observed that he could compel the lawyer to submit his register. Tho
D
observations made by the High Court on the conduct of the Magistrate
or on the lawyer were not at all called for because both of them were
doing their duties according to law. On the view that we have taken,
the Magistrate was fully justified in not compelling the lawyer to
surrender his register which undoubtedly contained a part of the pri-
vileged communication and even if the lawyer had taken down the evi- E
dence in exlenso for the limited purpose of using it to defend the
accused or cross-examine the witnesses, he could not be prevented
from doing so, nor does s. 14 contemplate or envisage such a course
of action. The Magistrate also in declining to give copies of the state-
ments concerned to the accused, took an erroneous view of s. 14 of
the Act which, as we have already held, did not debar the Magistrate F
from giving copies to the accused for the purpose of his defence. Thus,
~ are satisfied that the judgment of the High Court under appeal is
vitiated by an error of law and it has not correctly interpreted s. 14 of
the Act. Similarly the earlier decision of the Calcutta High Court in
Superintendent and Remembrancer of Legal Affairs, West Bengal v.
Satyen Ehowmik & Ors. (') cannot be held to be good law and must G
be overruled.
Thus on an overall consideration of the facts and circumstances of
the case and a true interpretation of the language employed in s. 14
-0f the Act, we reach the following conclusions : - ·
l. That s. 14 apart from providing that the proceedings of the H
Court may be held in camera under the circumstances men•
(I) AIR 1970 Calcutta 535.
.674 SUPREME COURT REPORTS [1981] 2 S.C.R.

tioned in the Section, does not in any way affect or over-
ride the provisions of the Criminal Procedure Code relating
to enquiries or trials held thereunder. •
2. That s. 14 does not in any way deprive the valuable rights
of the accused to get copies of the statement recorded by
B the Magistrate or statements of witnesses recorded by the
police the documents obtained by the Police during the in·
vestigation as envisaged by criminal Rules 308 and 310
framed under the Code of Criminal Procedure hy various
. High Courts nor does s. 14 in any way affect the right of . __,
the accused to get copies under s. 548 of the Code of Cri- J~
c minal Procedure.
3. That the opening words of s. 14 do not amount to a non-
obstante clause but are merely in the nature of an enabling
provmon reserving the inherent powers of the Court to
exclude the public from the proceedings if the Court is of
the opinion that it is just and expedient to do so.
D
4. That there was absolutely no impropriety on the power of
the Magistrate in not taking action against the defence
lawyer for his refusal to show his register because the lawyer
had rightly claimed privilege under s. 126 af the Evideuce
Act as the register contained instructions given by the client
E which being privileged could not be disclosed to the Court.
On a parity of reasoning we find no impropriety on the con-
duct of the lawyer in refusing to show the statement of wit-
nesses recorded by the Court in extenso in order to pre-
pare himself for an effective cross-examination of the
witnesses. Hence the strictures passed by the High Conrtl
F on the Magistrate as also on the lawyer of the defence were,
in our opinion, totally unwarranted.
,,-J,
5. That if. the lawyer of the defence or staff of the Conrt or
any one who was not excluded from the hearing of the case
made any attempt to disclose the contents of the documents
G or the statements of the witnesses, exposed himself to a
prosecution on a charge under s. 5 of the Act.

For the reasons given above, we overrule the view of the High '
Court and the reasons given therefor that s. 14 af the Act prohibits
the giving of copies of the statement concerned to the accused or that
H (he lawyer is prohibited from taking the statements in extenso and had
a duty to show the same to the court. We also overrule the view taken
by the High Court regarding the interpretation of s. 14 of the Act.
SUPDT. & REMEMBRANCER v. s. BHOWM!CK (Fazal Ali, J.) 675

We do not agree with the lligh Court that the case should be tried A
by some other Magistrate but as lot of time has elapsed, surely the
.. Magistrate against whose orders revision was taken to the High Court
must have been transferred by this time. Therefore, the case will now
be inquired into by a Magistrate who is available in the light of the
observations made by us. The appeal is disposed of accordingly.
B

N.K.A.
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