Yashwant Sinha & ORS....Petitioner(s) versus Central Bureau of Investigation through its director & ANR....Respondent(s)

REPORTABLE 

IN THE SUPREME COURT OF INDIA 
CRIMINAL ORIGINAL JURISDICTION 
REVIEW PETITION (CRIMINAL) NO. 46 OF 2019 
IN 

WRIT PETITION (CRIMINAL) NO. 298 OF 2018 
YASHWANT SINHA & ORS. ...PETITIONER(S) 

VERSUS 
CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR & ANR. ... RESPONDENT(S) 
WITH M.A.NO. 58/2019 in W.P. (CRL.) 225/2018 R.P. (CRL.) NO. 122/2019 IN W.P. (CRL.) 297/2018 M.A. NO. 403/2019 IN W.P. (CRL.) NO. 298/2018 R.P.(C) No. 719/2019 in W.P.(C) 1205/2018 

JUDGMENT 

RANJAN GOGOI, CJI 

1. A preliminary objection with regard to the maintainability of the review petition has been raised by the Attorney General on behalf of the respondents. The learned Attorney General contends 

2 . that the review petition lacks in bona fides inasmuch as three documents unauthorizedly removed from the office of the Ministry of Defence, Government of India, have been appended to the review petition and relied upon by the review petitioners. The three documents in question are: 

(a) An eight­page note written by three members of the Indian Negotiating Team (‘INT’) charged in reference to the Rafale Deal (note dated 01.06.2016) 

(b) Note­18 of the Ministry of Defence (Government of India), F.No. AirHQ/S/96380/3/ASR PC­XXVI (Marked Secret under the Official Secrets Act) 

(c) Note­10 written by S.K. Sharma (Deputy Secretary, MoD, Air­III), Note dated 24.11.2015 (Marked Secret under the Official Secrets Act) 

It is contented that the alleged unauthorized removal of the documents from the custody of the competent authority of the  Government of India and the use thereof to support the pleas urged in the review petition is in violation of the provisions of Sections 3  and 5 of the Official Secrets Act, 1923. It is further contended that the documents cannot be accessed under the Right to Information  Act in view of the provisions contained in Section 8(1)(a) of the said  Act. Additionally, the provisions contained in Section 123 of the  Indian Evidence Act, 1872 have been pressed into service and privilege has been claimed so as to bar their disclosure in the public  domain. Section 3, 5(1) of the Official Secrets Act; Section 8(1)(a)  and 8(2) of the Right to Information Act and Section 123 of the  Evidence Act on which the learned Attorney has relied upon is extracted below. 

3. Penalties for spying.­ (1) If any person for any purpose prejudicial to the safety or interests of the State – 

(a) approaches, inspects, passes over or is in the vicinity of,  or enters, any prohibited place; or 
(b) makes any sketch, plan, model or note which is calculated to be or might be or is intended to be directly or indirectly, useful to any enemy; or 
(c) obtains, collects, records or publishes or communicates to any other person any 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, the security of the State or friendly relations with foreign States: 

he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years. 

(2) On a prosecution for an offence punishable under this section it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, information, code or password shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State. 

5. Wrongful communication, etc., of information.­(1) If any person having in his possession or control any secret official code or password or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in contravention of this Act, or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an office or contract­

(a) willfully communicates the code or password, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorized to communicate it, or a Court of Justice or a person to whom it is, in the interests of the State, his duty to communicate it; or 

(b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety of the State; or 

(c) retains the sketch, plan, model, article, note or document in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, or willfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or 

(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of the sketch, plan, model, article, note, document, secret official code or password or information; 

To read more in details, find the enclosed attachment