Special Leave Petition Criminal No 1543 of 1984
From the Judgment and order dated the 3rd day of May 1984 of the Delhi High Court in Crl
MM No 421 of 1984 995 RN Poddar for the Petitioner
Miss Rani Jethmalani for the Respondent
The Judgment of the Court was delivered by B VENKATARAMIAH J
Four persons Maj
General Retd FD Larkins Air Vice Marshal Retd KH Larkins Lt Col
Retd Jasbir Singh and Jaspal Singh Gill alias Jassi Gill the respondent herein were accused of having committed offences punishable under sections 3 5 and 9 of the Official Secrets Act 1923 read with section 120 B of the Indian Penal Code and of them FD Larkins and Jasbir Singh were also accused of having committed the offence punishable under section 6 of the Official Secrets Act 1923 in a complaint filed by the Deputy Commissioner of Police Special Branch Delhi with the authorisation of the Government of India before the Additional Chief Metropolitan Magistrate Patiala House New Delhi
The prosecution case appears to rest inter alia on the following facts On March 24 1983 Group Captain Jasjit Singh informed the Air Vice Marshal now Air Marshal Shri section Raghavendran that for some days immediately prior to that date AVM Retd KH Larkins then resident of Azad Apartments Mehrauli Road New Delhi under whom he had served earlier was inducing him to pass on secret manuals of aircrafts used by the Indian Air Force for a consideration of Rs 20000 per document
AVM Raghavendran brought this to the notice of his superiors
Thereafter further information was collected and the movements of AVM Retd KH Larkins were kept under observation
The links of the said KH Larkins and his brother Major General Retd FD Larkins were discovered
A First Information Report was registered at Police Station Tughlak Road New Delhi
On November 11 1983 raids were conducted at the residence of KH Larkins as well as that of FD Larkins
Certain incriminating items are stated to have been recovered from the latter s 996 house
It is alleged that on interrogation after arrest FD Larkins and KH Larkins confessed that they had been passing on classified information relating to the defence of the country to a foreign agency
It is further alleged that Major General Retd
FD Larkins stated that he had engaged Lt Col Retd Jasbir Singh as his sub agent for procuring secretrestricted documents and manuals relating to armament
On this disclosure the search of the house of Jasbir Singh was conducted on November 13 1983 and he was arrested and remanded to police custody
It is stated that on interrogation he disclosed that he had been passing on secretclassified information to Major General Retd FD Larkins and Jaspal Singh Gill the respondent for monetary consideration
He appears to have further disclosed that many secretrestricted manuals and documents were unauthorisedly got issued to him from DGI and EME libraries to which he gained access through the good offices of certain Army Officers and by impersonating himself as a serving officer when actually he was retired and that the information contained in these documents and manuals was passed on by him to Major General Retd FD Larkins and Jaspal Singh Gill alias Jassi Gill resident of 82 Sunder Nagar New Delhi the respondent who represented a private firm namely Ms EMGEE International Pvt Ltd and with whom he Lt Col Retd Jasbir Singh was also working as consultant
On the basis of the said disclosure made by the said Jasbir Singh the search of the house of Jaspal Singh Gill alias Jassi Gill the respondent herein was conducted at 82 Sunder Nagar New Delhi
Some secretrestricted documents alongwith a Defence telephone directory connected with the Army are stated to have been recovered from his possession and he was arrested on November 19 1983
It is alleged that the respondent herein had obtained classified information on defence matters through the aforesaid Jasbir Singh for monetary consideration and had passed on the information to the US Intelligence Operator
During the search of the house of Jaspal Singh as many as 13 invitation cards from the US Officials for cocktail and dinner parties are alleged to have been recovered showing the association of the respondent 997 with foreign agents as defined in section 4 of the Official Secrets Act
It is alleged that the respondent was paying Rs 1000 per month to the Jasbir Singh and Rs 1000 per month to the wife of Jasbir Singh
It is further alleged that the copy of the Defence telephone directory was a restricted document the disclosure of the contents of which to unauthorised persons is prejudicial to the interest and security of the country
All the accused persons including the respondent have been committed to the Court of Sessions for the various offences which are really of a serious nature
During the investigation the respondent made an application for bail before the Addl
Sessions Judge New Delhi and it was rejected in January 1984
Then again he made another application for bail before the Sessions Court
Before the said application could be taken up he made an application under section 482 of the Criminal Procedure Code before the High Court of Delhi for bail
The learned Judge of the High Court who heard the bail application went into the merits of the case and after holding that the material before the Court was insufficient to sustain the conviction of the respondent proceeded to enlarge him on bail subject to his furnishing a personal bond in the sum of Rs 5000 with one surety in the like amount
It may be stated here that the very same learned Judge had dismissed earlier the bail application of Jasbir Singh who was the employee of the respondent
Aggrieved by the order of the High Court enlarging the respondent on bail the prosecution has filed this Special Leave Petition for revoking the said order of bail
The offence punishable under section 3 of the Official Secrets Act 1923 with which the respondent is charged relates to military affairs and it is punishable with imprisonment which may extend to fourteen years
This Court in The State vs Captain Jagjit Singh has indicated that the Court should exercise a 998 greater degree of care in enlarging on bail an accused who is charged with the offence punishable under section 3 of the Official Secrets Act when it relates to military affairs
I have also gone through the decisions of this Court in Gurcharan Singh  Ors
vs State Delhi Administration and Gudikanti Narasimhulu  Ors
vs Public Prosecutor High Court of Andhra Pradesh which deal with the principles governing the grant of bail
It may be mentioned here that in the last of the above cases the accused had been acquitted by the trial court but convicted by the High Court on appeal
On a consideration of the above three decisions I am of the view that the Court before granting bail in cases involving non bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence the character of the evidence circumstances which are peculiar to the accused a reasonable possibility of the presence of the accused not being secured at the trial reasonable apprehension of witnesses being tampered with the larger interests of the public or the State and similar other considerations
On going through the order passed by the High Court I feel that its decision that the material collected by the prosecutions and the evidence to be adduced at the trial would not be sufficient to sustain a conviction appears to be a premature one in the circumstances of this case
Since the trial is yet to begin I do not propose to say anything more at this stage lest it should prejudice either the accused or the prosecution than observing that on a perusal of the complaint and the other material available in the case it cannot reasonably be stated that the prosecution case against the respondent is such that it can be thrown out at the threshold
It appears that a prima facie case is made out against the respondent
The gravity of the offences is quite obvious
They relate to the security of the State Espionage and intelligence are utilised to pass on information regarding military plans equipment technical advances etc
of one country to another
Naturally passing on of such information from our country to a foreign country is bound to be most harmful to our country
The 999 persons accused alongwith the respondent are admittedly ex military men well versed in military affairs who are capable of establishing bridges with the sensitive sections of the defence services
The respondent is also alleged to be having some dealings with the defence department and Jasbir Singh is in the employment of the respondent
The allegations made by the prosecution which no doubt have still to be established at the trial suggest that the respondent and the persons accused alongwith him are persons of easy conscience in so far as the interests and security of the country are concerned
The current situation in the country is such that it can be easily be exploited by unscrupulous men to their own or to some foreign power s advantage
These aspects of the case do not appear to have been considered by the High Court
It is seen that while dismissing the bail application of Jasbir Singh on April 24 1984 the learned Judge of the High Court had relied on the decision of this Court in Captain Jagjit Singh s case supra he has not even referred to that decision while granting bail to the respondent on May 3 1984
Some of the observations made by the High Court against the sustainability of the case of criminal conspiracy alleged by the prosecution at this stage were not called for
The circumstances of this case are such that the question whether the case of criminal conspiracy had been made out or not should have been left to be decided by the trial court at the end of the trial on a consideration of the entire evidence adduced in the case
In the circumstances I am of the view that the High Court should not have enlarged the respondent on bail in the larger interests of the state
It is urged that the respondent is a person who has undergone a cardiac operation and needs constant medical attention
I am sure that the prison authorities will arrange for proper treatment of the respondent whenever the deed for it arises
I am informed that in a criminal revision petition filed by one of the accused the High Court has stayed the trial of the case The High Court is requested to dispose of the case early since the accused are all in judicial custody
The order of bail passed by the High Court was suspended by this Court by an order made on June 4 1984 and the respon 1000 dent was ordered to be re arrested and kept in judicial custody The respondent is now taken back into judicial custody
In the result the order of the High Court enlarging the respondent on bail is set aside and the respondent is directed to remain judicial custody until further orders to be passed by a competent court
The trial court shall proceed to dispose of the case without feeling itself bound by any of the observations of the High Court


Summary:
The respondent along with three others were accused of having committed offences punishable under sections 35 and 9 of the Official Secrets Act 1923 read with section 120 B of the Indian Penal Code and therefore committed to the Court of Sessions for the said offences which are of a serious nature
During the investigation the respondent made an application for bail before the Additional Sessions Judge New Delhi and it was rejected in January 1984
Then again he made another application for bail before the Sessions Court
Before the said application could be taken up he made an application under section 482 of the Criminal Procedure Code before the High Court of Delhi for bail
The learned Judge of the High Court who heard the bail application went into the merits of the case and after holding that the material before the Court was insufficient to sustain the conviction of the respondent proceeded to enlarge him on bail subject to his furnishing a Personal bond in the sum of Rs 5000 with one surety in the like amount
However the very same Learned Judge had dismissed earlier the bail application of Jasbir Singh who was the employee of the respondent
Aggrieved by the order of the High Court enlarging the respondent on bail the prosecution has filed this special leave petition for revoking the said order of bail Allowing the petition the Court
 HELD 11
The Court before granting bail in cases involving non bailable offences particularly where the trial has not yet commenced should 994 take into consideration various matters such as the nature and seriousness of the offence the character of the evidence circumstance which are peculiar to the accused a reasonable possibility of the presence of the accused not being secured at the trial reasonable apprehension of witnesses being tampered with the larger undressed of the public or the State and similar other considerations
Further the Court should exercise a greater degree of care in enlarging on bail an accused who is charged with the offence punishable under section 3 of the Official Secrets Act when it relates to military affairs
Here the offence punishable under section 3 of the Official Secrets Act 1923 with which the respondent is charged relates to military affairs and it is punishable with imprisonment which may extend to fourteen years
The State vs Captain Jagjit Singh  Gurcharan Singh  Ors vs State Delhi Admn   Gudikanti Narsaimhulu  Ors
vs Public Prosecutor High Court of Andhra Pradesh 1978 2 SCR 361 referred to 998C D 998A 997H 12
The decision of the High Court that the material collected by the prosecution and the evidence to be adduced at the trial would not be sufficient to sustain a conviction appears to be a premature one in the circumstances of this case
The allegations made by the prosecution which no doubt have still to be established at the trial suggest that the respondent and the persons accused alongwith him are persons of easy conscience in so far as the interests and security of the country is concerned
The current situation in the country is such that it can easily be exploited by unscrupulous men to their own or to some foreign power s advantage
These aspects of the case do not appear to have been considered by the High Court
Further while dismissing the bail application of Jasbir Singh on April 24 1984 the learned Judge of the High Court had relied on the decision of this Court in Captain Jagjit Singh s case he has not even referred to that decision while granting bail to the respondent on May 3 1984
Some of the observations made by the High Court against the sustainability of the case of criminal conspiracy alleged by the prosecution at this stage were not called for
The circumstance of this case are such that the question whether the case of criminal conspiracy had been made out or not should have been left to be decided by the trial court at the end of the trial on a consideration of the entire evidence adduced in the case
Therefore the High Court should not have enlarged the respondent on bail in the larger interest of the State
998E 999B F