State of Maharashtra v. B.K. Subbarao, 1993 Cri LJ 2984 (Bom)

This case sets strict ground rules for prosecutions under the Official Secrets Act and Atomic Energy Act. Authorization must be clear and specific. Section 197 CrPC sanction is needed when acts relate to official duty—even for retired officers. Courts must see the documents to decide if they are truly “secret,” and the State must prove intent to harm security. Here, these steps were missing, so the discharge was upheld.

• Authorization covered only S.3 & S.6 OSA, not S.5—charge failed.
• Sanction under AEA was granted without reading the documents—invalid.
• No proof of intent; documents not produced for judicial scrutiny.

1. Was there valid, specific Central Government authorization under OSA/AEA?
2. Did Section 197 CrPC apply to a retired naval officer for acts linked to official duty?
3. Did failure to produce the alleged secret documents vitiate the charges?

• Explicit Authorization: Must precisely cover the sections invoked; “other cognate offences” is insufficient.
• Evidence-Based Sanction: Sanctioning authority should examine the actual documents, not only summaries.
• Section 197 CrPC: Protects acts done in official capacity; applies even post-retirement if connected to duty.
• Judicial Scrutiny of Documents: Courts must verify secrecy; mere possession isn’t an offence without harmful intent.

Held: Authorization under OSA/AEA must be explicit; here it covered only OSA S.3 & S.6, not S.5. AG’s sanction under AEA was issued without examining the actual documents. Section 197 CrPC applied as the acts related to official duty. Mere possession was not enough without proof of harmful intent. Refusal to produce documents blocked judicial scrutiny. The prosecution was vitiated; discharge was upheld; the State’s revision was dismissed.

Specific authorization + real sanction + court scrutiny + intent are mandatory pillars for national security prosecutions. Skipping any pillar collapses the case.

• Prevents misuse of security laws through vague authorizations.
• Protects fair process: courts must see and assess sensitive documents.
• Clarifies that retired officials still need S.197 sanction when duty-linked.

1. Name the sections—authorization must be specific.
2. Read the evidence—sanction after examining documents.
3. Apply S.197—duty-linked acts need prior sanction.
4. Prove intent—possession alone is not an offence.
5. Show the court—documents must be produced for scrutiny.

Mnemonic — “A-S-I-D” (Authorize • Sanction • Inspect • Demonstrate intent)

1. Authorize: Name exact sections (no vague add-ons).
2. Sanction: Decide after reading the real documents.
3. Inspect: Court must see and test the papers.
4. Demonstrate intent: Show real risk to security.

Official Secrets Act (OSA)

Law penalising unauthorised handling of sensitive information related to state security.

Section 197 CrPC

Requires prior sanction to prosecute public servants for acts done in official duty; applies to retired officers if duty-linked.

Sanction

Formal permission to prosecute; must be based on direct examination of evidence.