Criminal Appeal No 118 of 1961
Appeal by special leave from the judgment and order dated May 10 1961 of the Punjab High Court Circuit Bench at Delhi in Criminal Misc
No 256 D of 1961
 C K Daphtary Solicitor General of India Bepin Behari Lal T M Sen and R H Dhebar for the appellant
N C Chatterjee Mehar Singh Chaddah A K Nag and I section Sawhney for the respondent
623 1961
September 14
The Judgment of the Court was delivered
by WANCHOO J The respondent Jagjit Singh along with two other s  was prosecuted for conspiracy and also under sections 3 and 5 of the Indian Official Secrets Act No XIX of 1923 hereinafter called the Act
The respondent is a former captain of the Indian Army and was at the time of
his arrest in December 1960 employed in the delegation in India of a French company
The other two persons were employed in the Ministry of Defence and the Army Headquarters New Delhi
The case against the three persons was that they in conspiracy had passed on official secrets to a foreign agency
The respondent applied for bail to the Sessions Judge but his application was rejected by the Additional Sessions Judge Delhi
Thereupon the respondent applied under section 498 of the Code of Criminal Procedure to the High Court and the main contention urged before the High Court was that on the facts disclosed the case against the respondent could only be under s 5 of the
Act which is bailable and Dot under section 3 which is not bailable
The High Court was of the view that it was hardly possible at that stage to go into the question whether section 3 or section 5
applied  but that there was substance in the suggestion on behalf of the respondent that the matter was arguable
Consequently the High Court took the view that as the other two persons prosecuted along with the respondent had been released on bail the respondent should also be so released particularly as it appeared that the trial was likely to take a considerable time and the respondent was not likely to abscond
The High Court therefore allowed bail to the respondent
Thereupon the State made an application for special leave which was granted
The bail granted to the respondent was cancelled by an interim order by
this Court and the matter has now come up before us for final disposal
There is in our opinion a basic error in the order of the High Court
Whenever
an application for bail is made to a court the first question that 624 it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise
If the offence is bailable hail will be granted under section 496 of the Code of Criminal Procedure without more ado  but if the offence is not bailable further considerations will arise and the court will decide the question of grant of bail in the light of those further considerations
The error in the order of the High Court is that it did not consider whether the offence for which the respondent was being prosecuted was a bailable one or otherwise
Even if the High Court thought that it would not be proper at that stage where
commitment proceedings were to take place to express an opinion on the question whether the offence in this case fell under section 5 which is bailable or under section 3 which is not bailable it should have proceeded to deal with the application on the assumption that the offence was under section 3 and therefore not bailable
The High Court however did not deal with the application for bail on this footing for in the order it is said that the question whether the offence fell under section 3 or section 5 was arguable
It follows from this observation that the High Court thought it possible that the offence might fall under section 5
This in our opinion was the basic error into which the High Court fell in dealing with the application for bail before it and it should have considered the matter even if it did not consider it proper at that stage to decide the question whether the offence was under s3 or s5 on the assumption that the case fell under section 3 of the Act
It should then have taken into account the various considerations such as nature and seriousness of the offence the character of the evidence circumstances which axe peculiar to the accused a reasonable possibility of the presence of the accused not being secured at the trial reason  able apprehension of witnesses being tampered with the larger interests of the public or the State similar other considerations which arise when court is asked for bail in a non bailable offence
It is true that under section 498 of the Code of Crime 625 Procedure the powers of the High Court in the matter of granting bail are very wide even so where the offence is non bailable various considerations such as those indicated above have to be taken into account before bail is granted in a non bailable offence
This the High Court does not seem to have done for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one
The only reasons which the High Court gave for granting bail in this case were  that the other two persons had been granted bail that there was no likelihood of the respondent absconding he being well connected and that the trial was likely to take considerable time
These are however not the only considerations which should have weighed with the High Court if it had considered the matter as relating to a non bailable offence under section 3 of the Act
The first question therefore that we have to decide in considering whether the High Court s order should be set aside is whether this is a case which falls prima facie under section 3 of the Act
It is however unnecessary now in view of what has transpired since the High Court s order to decide that question
It appears that the respondent has been committed to the Court of Session along with the other two persons under section 120 B of the Indian Penal Code and under sections 3 and 5 of the Act read with section 120 B Prima facie therefore a case has been found against the respondent under section 3 which is a non bailable offence
It is in this background that we have now to consider whether the order of the High Court should be set aside
Among other considerations which a court has to take into account in deciding whether bail should be granted in a non bailable offence is the nature of the offence and if the offence is of a kind in which bail should not be granted considering its seriousness the court should refuse bail even though it has very wide powers under section 498 of the Code 626 of Criminal Procedure
Now a 3 of the Act erects an offence which is prejudicial to the safety or interests of the State and relates to obtaining collecting recording or publishing or communicating to any other person any secret official code or paw 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
Obviously the offence is of a very serious kind affecting the safety or the interests of the State
Further 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 it is punishable with fourteen years  imprisonment
The case against the respondent is in relation to the military affairs of the Government and prima facie therefore the respondent if convicted would be liable upto fourteen years  imprisonment
In these circumstances considering the nature of the offence it seems to us that this is not a case where discretion which undoubtedly vests in the court under section 498 of the Code of Criminal Procedure should have been exercised in favour of the respondent
We advisedly say no more as the case has still to be tried
It is true that two of the persons who were prosecuted along with the respondent were released on bail prior to the commitment order but the case of the respondent is obviously distinguishable from their case inasmuch as the prosecution case is that it is the respondent who is in touch with the foreign agency and not the other two persons prosecuted along with him
The fact that the respondent may not abscond is not by itself sufficient to induce the court to grant him bail in a case of this nature
Further as the respondent has been committed for trial to the Court of Session 627 it is not likely now that the trial will take a long time
In the circumstances we are of opinion that the order of the High Court granting bail to the respondent is erroneous and should be set aside
We therefore allow the appeal and set aside the order of the High Court granting bail to the respondent
As he has already been arrested under the interim order passed by this Court no further order in this connection is necessary
We however direct that the Sessions Judge will take steps to see that as far as possible the trial of the respondent starts within two months of the date of this order
Appeal allowed


Summary:
The respondent who was a former Captain of the Indian Army and was employed in the delegation in India of a French Company was prosecuted along with two others for conspiracy and passing on Official Secrets to a foreign agency under ss3 and 5 of the Official Secrets Act
His application for bail was rejected by the Sessions judge but the High Court allowed bail on the ground inter alia that his case might fall only under s5 which was bailable and not section 3 which was not bailable
It did not express any opinion whether the case fell under section 5 or section 3 in view of the commitment proceedings which were going on at the time
On appeal by the State
Held that the High Court should have proceeded to deal with the application for bail on the assumption that the offence was under section 3 and therefore not bailable
It should have then taken into account the various considerations such as nature and seriousness of the offence the character of the evidence circumstances peculiar to the accused possibility of his absconding tampering with witnesses larger interests of the public
and the State and similar other considerations Which arise When bail is asked for in a non bailable offence
The fact that the applicant for bail might not abscond was not by itself a sufficient ground for granting bail