Metro Corporation Office Not 'Prohibited Place', Recording Office Calls Not 'Spying' Under Official Secrets Act: Bombay High Court

The Bombay High Court has said that recording a conference call between two officials of Maharashtra Metro Corporation Limited (MMCL) and then sharing the same with another official would not amount to 'spying' under Official Secrets Act (OSA) as the office of the MMCL would not amount to 'prohibited place' under the Act.The court however said that it would amount to unethical conduct by the employee. Single-judge Justice Urmila Joshi-Phalke, sitting at the Nagpur seat, partly quashed an FIR lodged against one Pravin Samarth, the Assistant Manager of the MMCL on July 9, 2019 under Section 3 (spying) of the OSA, while maintaining charges under Sections 43 and 66B of the Information & Technology (IT) Act.The bench quashed the proceedings to the extent of invocation of the OSA against Samarth.Providing reasons, the judge referred to section 2(8) of the OSA which defines 'prohibited place' and held that admittedly, the office of the MMCL, where the phone calls were recorded and shared to another official, illegally, could not be brought under the ambit of 'prohibited place.' Referring to Section 3 OSA, the court said:"On perusal of Section 3 of the Official Secrets Act which provides penalties for spying. In the context of the definition given under Section 2(8) of the Official Secrets Act of 'prohibited place'. Admittedly, the spot of incident is not prohibited place. The said definition does not specifically include the place i.e. office of the complainant company as a prohibited place. Therefore, the offence under Section 3 of the Official Secrets Act is not made out against the present applicant. The invocation of Section 3 of the Official Secrets Act prima-facie appears to have been invoked under the misconception. By no stretch of imagination it can be said that recording of the said calls as stated aforesaid be an act constituting an offence of spying.The word spying has different meaning. Section 3 of the Official Secrets Act provides punishment for acts, prejudicial to the safety or interests of the State; acts done affecting the sovereignty and integrity of India and so on i.e. for the acts stipulated therein. Prima-facie it is apparent that the Official Secrets Act applied by the Investigating Agency is under wrong conception. Section 3 could have been invoked in the facts of the present case when there is any apprehension due to act of the present applicant to the sovereignty or integrity of India. In view of that, the offence under Section 3 of the Official Secrets Act is not made out"Therefore, the bench quashed the FIR to the extent of invoking section 3(1)(c) of the OSA against Samarth. It also partly quashed the chargesheet with regards to the OSA applicability. However, the court maintained the charges under the IT Act. "In view of sections 43 and 66 of the Information Technology Act, the allegations relate to the use of communication by the employee of the complainant company by recording the conference call sharing without permission of the communicators or any other person who is in-charge of the said system and sharing it to other person falls within the purview of Section 43 of the Information Technology Act," the judge held. When such act is done dishonestly or fraudulently, Justice Joshi-Phalke, explained, it would attract the punishment under Section 66 of the Information Technology Act. "The ingredients of dishonesty or fraudulent are the same which require to be considered in view of Section 420 of IPC. As far as dishonest intention is concerned, which prima-facie reveals from the fact that he has shared the said information with the person who is working in another department. Thus, prima-facie offence under Section 66 read with Section 43 is made out against the present applicant," the judge concluded. According to the prosecution case, Samarth, who was employed for connecting conference calls of officials, had recorded some calls between the senior officers at the behest of another officer and co-accused Vishwaranjan Beora, who was being prosecuted under various other charges, separately. During the investigation that communication between the present applicant and Beora further discloses that the present applicant has shared information with him, the bench noted. "In view of the Maharashtra Metro Rail Corporations Limited Rules, it was not only a misconduct on the part of the present applicant but it is an unauthorised communication regarding information of the department which was shared by the present applicant with an employee of another department," the judge said.Further the judge pointed out that the Rule 11 itself shows that no employee shall, except in accordance with any general or special order of the Corporation or in the performance in good faith of the duties assigned to him communicate, directly or indirectly, any official document or any part thereof to any officer or other employee, or any other person to whom he is not authorised to...

Metro Corporation Office Not 'Prohibited Place', Recording Office Calls Not 'Spying' Under Official Secrets Act: Bombay High Court

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Metro Corporation Office Not 'Prohibited Place', Recording Office Calls Not 'Spying' Under Official Secrets Act: Bombay High Court

Narsi Benwal

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