Official Secrets Act, 1923

IN Law and Policy | 18/10/2007

 

Sections effecting journalism & Journalists

1[1. Short title, extent and application

    (1) This Act may be called the Official Secrets Act, 1923.

    (2) It extends to the whole of India and applies also to servants of the Government and to citizens of India outside India.]

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 an enemy; or

    (c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, 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 2[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.

4. Communications with foreign agents to be evidence of commission of certain offences

        (a) A person may be presumed to have been in communication with a foreign agent if-

            (i) He has, either within or without 3[India], visited the address of a foreign agent or consorted or associated with a foreign agent, or

            (ii) Either within or without 3[India], the name or address of, or any other information regarding, a foreign agent has been found in his possession, or has been obtained by him from any other person;

5. Wrongful communication, etc., of information

    (1) If any person having in his possession or control any secret official code or pass word 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, 4[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 office under Government, or as 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) Wilfully communicates the code or pass word, sketch, plan, model, article, note, document or information to any person other than a person

to whom he is authorised 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 wilfully 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 pass word or information;

He shall be guilty of an offence under this section.

    (2) If any person voluntarily receives any secret official code or pass world or any sketch, plan. Model, article, note, document or information knowing or having reasonable ground to believe, at the time when he receives it, that the code, pass word, sketch, plan, model, article, note, document or information is communicated in contravention of this Act, he shall be guilty of an offence under this section.

    (3) If any person having in his possession or control any sketch, plan, model, article, note, document or information, which relates to munitions of war communicates it, directly or indirectly, to any foreign power or in any other manner prejudicial to the safety or interests of the State, he shall be guilty of an offence under this section.

    5[(4) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.]

6. Unauthorised use of uniforms; falsification of reports, forgery, personation, and false documents

    (1) If any person for the purpose of gaining admission or of assisting any other person to gain admission to a prohibited place or for any other purpose prejudicial to the safety of the State-

        (a) uses or wears, without lawful authority, any naval, military, air force, police or other official uniform, or any uniform so nearly resembling the same as to be calculated to deceive, or falsely represents himself to be a person who is or has been entitled to use or wear any such uniform; or

        (b) orally, or in writing in any declaration or application, or in any document signed by him or on his behalf, knowingly makes or connives at the making of any false statement or any omission; or

        (c) forges, alters, or tampers with any passport or any naval, military, air force, police, or official pass, permit, certificate, licence, or other document of a similar character (hereinafter in this section referred to as an official document) or knowingly uses or has in his possession any such forged, altered, or irregular official document; or

        (d) personates, of falsely represents himself to be, a person holding, or in the employment of a person holding, office under Government, or to be or not to be a person to whom an official document or secret official code or pass word has been duly issued or communicated, or with intent to obtain an official document, secret official code or pass word, whether for himself or any other person, knowingly makes any false statement; or

        (e) uses, or has in his possession or under his control, without the authority of the department of the Government or the authority concerned, any die, seal or stamp of or belonging to, or used, made or provided by, any department of the Government, or by any diplomatic, naval, military, or air force authority appointed by or acting under the authority of Government, or any die, seal or stamp so nearly resembling any such die, seal or stamp as to be calculated to deceive, or counterfeits any such die, seal or stamp, or knowingly uses, or has in his possession or under his control, any such counterfeited die, seal or stamp;

He shall be guilty of an offence under this section.

    (2) If any person for any purpose prejudicial to the safety of the State-

        (a) retains any official document, whether or not completed or issued for use, when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with any direction issued by any department of the Government or any person authorised by such department with regard to the return or disposal thereof; or

        (b) allows any other person to have possession of any official document issued for his use alone, or communicates any secret official code or pass word so issued, or, without lawful authority or excuse, has in his possession any official document or secret official code or pass word issued for the use of some person other than himself, or, on obtaining possession of any official document by finding or otherwise, wilfully fails to restore it to the person or authority by whom or for whose use it was issued, or to a police officer; or

(3) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to 6[three years], or with fine, or with both.

9. Attempts, incitements, etc.

Any person who attempts to commit or abets the commission of an offence under this Act shall be punishable with the same punishment, and be liable to be proceeded against in the same manner as if he had committed such offence.

7[12. Provisions of section 337 of Act 5 of 1898 to apply to offences under section 3, 5 and 7

The provisions of section 337 of the Code of Criminal Procedure, 18988 shall apply in relation to an offence punishable under section 3 or under section 5 or under section 7 or under any of the said sections 3, 5 and 7 read with section 9, as they apply in relation to an offence punishable with imprisonment for a term which may extend to seven years.]

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 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 prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the 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.

9[15. Offences by companies

    (1) If the person committing an offence under this Act. Is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to such punishment provided in this Act. if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

    (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act. has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

    Explanation.-For the purposes of this section,-

        (a) "company" means a body corporate and includes a firm or other association of individual; and

        (b) "Director", in relation to a firm, means a partner in the firm.]

[16. Repeals: Repealed by the Repealing Act, 1927]

 

Footnotes

 

1. Substituted by Act No. 24 of 1967.

2. Inserted by Act No. 24 of 1967.

3. Substituted by Act No. 3 of 1951, for the words "the States".

4. Substituted by Act No. 24 of 1967, for the words "or which has been made or obtained in contravention of this Act,"

5. Substituted by Act No. 24 of 1967 for the former sub-section (4), w.e.f. 10th. July, 1968.

6. Substituted by Act No. 24 of 1967 for the words "two years".

7. Substituted by Act No. 24 of 1967 for the former section 12.

8. See now the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), section 306.

9. Substituted by Act No. 24 of 1967, for the former section 15.  

 

 

 

Case Law

 

Iftikar Gilani Case

On September07, 2002 New Delhi,  Iftikhar Geelani, the son-in-law of firebrand Jamaat-e-Islami leader Syed Ali Shah Geelani, was charge sheeted by Delhi police for allegedly supplying sensitive documents to Pakistan on the deployment of Indian troops and para-military forces in Jammu and Kashmir, under Sections 3 and 9 of the Official Secrets Act and Sections 120-B (criminal conspiracy) and 292 (obscenity) of IPC.

The court observed that under Section 3(2) of Official Secrets Act it is not necessary to show that the accused was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the state. Prima facie the circumstances and conduct are enough to draw a presumption against the person so accused.

On January 13, 2003 Seven months after he was arrested journalist Iftikar Gilani was released by a Special Court .The release came after the government in a volte-face decided to withdraw the case against him for allegedly possessing sensitive documents relating to troop deployment in Jammu and Kashmir.

                                              Further Information

Official Secrets Act 1923

http://indiacode.nic.in/rspaging.asp?tfnm=192319

OSA vs. RTI

http://indiacode.nic.in/qrydisp.asp?tfnm=200305%20&tfnm2=17

 

 

 

 

 

 

 

 

 

 

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