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STATE

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~ -.

JASPAL SINGH GU:, L

Ju~ 25, 19,$4

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.• ·., {E.8 •• '\'l!NKA'1'ARkM'lAH, YACATION JUDGE] .

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Sptclal Powers of the High Court to enlarg~. an acrused. 011. ball under stctfon 439. (J) read with section •37 (3) and482 of th~ Codi <if Criminal Pr~ CMhlre, sCOpe of. . . , ; .-) ~~

. ' The re&pondent along with three others wer~ accu9d rirq11v; ji;1omfuii'.. ted offences punishable under ss. 3, 5 and 9 of the ()flicjiil Secre~ Act,. 1923 -rea<I ithco a: 120 B of lhe Indian Penal Code and therefore committed to t, he Court of sessions for the said offences. which ar_e of a serious :ture. Du.ring -

thC -investiga:tiOn, __ the -rsp~dent maq~ a.it .applicitibn .fg_t/.baLlbe~~ the Additional Sesions Judge, New Delhi and it was rejec(!'d .j(i JaliuJii:y; 1984.

Then t1gaili' he ma.de another applicatiotl for bail before,'the St!sij>~S Court.

Before the aid a.pPlicatiqn could be ta.ken up he made an application under

8, 482 of. tlte Crimfoal Procedure !Code , before !the H)gh Court of Delhi roribaiJ.,. Tu.,:10.riied Judge of the High Court who eard thp bail application ' ,;.,..n_t into the tn\!rlts of the case and after holding that the-jllaterial. before the . ~/ Couft was insufficient to_sustain the conyic.iion of the respondent. pxoceeded

to enlarge him on !:>'ail subject to his. furnishing a Personal bond in the sum of Rs. 5,000/- with :one surety it'l.· the ti lee arn, ollnt. However, the very same Learned Judge had di&missed earHiif the bail application of Jasbir Siiigh who was the employee of the. re•pondent~ Aggri, eved 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, tlie Court.

HELD : {: J. The Court before granting , bail in cases, Involving nonbailable olrences particularly wher~ the trial has not yet commenced should

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SUPR!M! com T llEPOlTS [1984) 3 s.c.ll;

tak:t into consi.deration-va'rious Matters auch-as the-Oatµre and seriousnesa of theoffence, the character of tht evidence, circumstanc~ which are pectiliar to

he accused, a reasonable possiQilitY Of.the Presence Of the accused not being

1ecured at thetrial, rea1onable .apprehension Of witnesses being tampred with, the larger intrestsof the public or the. State and similar other considerations. Further, the Court should cxercfsC'& gfcate-r degree ot care in enlirR

ging on bail an accused who io charged.wi, th the offence punishable under s. 3 or the Official Secre!I Act when it relate• I\> military affairs. Here the offeace punishable under,, 3 .of the Official Secrets Act, 1923 with whicp the respon. •ent is charaed relates to military affairs an.d it is punjshable with imprisonment whi1:h may, extend to foartten years. ·

. ,. ,. ., rh1 Stat• v. CM1tain latjit Sinjh,' A.LR. 1962 S.C. 253 Gurcharan.

Sinrh .t Orn. Stat• (D1lhl Acim•.J,{1971i 2.S.C.R. 358; Guciikantl Narsaim' hwlil <l Ors. " uhlic fffleciilr, Hlth Co•ri of Andlva l.'radesh, (!97BJ 2 S.C.R. 361, rcfr•d to.![998C-D; 998A; 997H]

1 : 2 .• The decision oftbe-High Court th,•!.t1ie material collected bYtho . prosecution aatl lhehidenre to be adduced at the trial would not be. sufficien\ , . to sustain a conviction app~rs tq be.A premature one.in the circumptances or· this case. Tho allegations made by tbe prosecution which no doubt have slill

- to be established •.t the. Wal suggest that the •eapondent pd the person•

accused S:loopjih hi qi a"'ie persons of eBay conscience in'so far as thC ilitei:reits and security Of the counm• is concerned, 'fhe current Sitpatlon in the COlldlfl' is such .that it can easjlj/, be eXp!Oited by UQlcrupUJOu! men to their OWD Of tO. ·

some fofeign powet'sadva.ntage. :These aspects. Of thO case do not appear to , have' been c0nsidered by the IftJh Court. Further.' while dismissina theJie.il application of Jasbir Singh on April 24, .1984 •.. the learned Judge of the ljigh; j i Courth.ad relied on.the decision Of \his:urt in Captain J~Jlt Sillgh's 'ca16;. . hj> tias not even rereired to that di:cisiop while granting'bai) to the respono'h May a, 1984:° some qt the observations (llllde by th• Hieb C11im asainit 'the snstainabliitY of thO ca1.e of criminal conspiracy_alledbi' tbcpl))lecution •.

at this stage were not called for. 'l'he circun1stance of this case .are sue!) that'. , the qUestlOn whether .. the se of ftminaf conspiracy had ben made oµt_or .. not should haV. qeen left to be decided by. the irial court at the. , Po4 of the . trial. op. a onSideraticitt of te c:ntire eviden.cc addued in th.~ case.

Ther~:· fore, the High Court should not qave enlirged the respondent on bail in the larger inierest of theStaet. [998B; 999B-F} ·· . . J ' ' •

CRIMINAL APPl!LLATE JURISD!CTIOJ:I ; Special Leave Petition (Criminal) No. 1543 of 1984. .

. J:rom the JudSo!•rlt and Otder dated the 3rd day ot'My, 1984 'Cir tbe Delhi High Court in Cr!. M(p; f) No.' 421 of 1984 · '

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• STATE ves. GiLL (Venkataramiah, J.) 995.

-· R.N. Poddar for the Petitioner.

Miss Rani Jethmaldni for the Respondent.

The Judgment of the Court was delivered by

VENKATARAMIAH, J.

Four persons-Maj. General (Retd.J F.D. Larkins, Air Vice Marshal (Retd.) K.H.. Larkins, Lt. Col. (Retd.) Jasbir Singh and Jaspal Singh Gill aljas Jassi Gill, thci

responde~ t herein. were accused of having committed offences punishable under sections 3, 5 and 9 of. the Official Secrets Act, 1923 rea.d with section 120-B of the I.ndian Penal Code and of them F.D. Larkins and Jasbir Singh were also accused of having committed the offence punishable under section 6 of the Official Becrets Act, 1923 in a complaint filed by the Deputy Com

mlssoner of Police, Special Branch, Delhi witfi the authorisation of \he Government of India before the Additional Chief Metro politan Magistrate, Patiala House, New 'Delhi. . ,.,

The pfosecution case appears to rest inter a/ia on the following facts : On March 24, 1983, Group Captain Jasjit Singh informed the Air. Vice Marshal (now Air Marshal) Shri $.

Raghavendran that for. som.e days immediately prior to that daie AVM (Retd.) K.H. Larkinss then resident of Azad Apartmenis, Mehrau\i 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. 20,000/- pe'r document. AVM Raghavendran brought this to the notice -of his superiors. Thereafter further information was collected and the movements of AVM (Retd.)-K.H. Larkins were kept under. obser vation. The links. of the said K. H. Larkins and his brother Major Geheral (Retd.)- F.D. Larkins were discovered .. A First Information Report was registered at Police Station; Tughlak . Road, New Delhi.

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On November. 11, 1983 raids were conducied at the residence . of K.H. Larkins as. weJI as that of F.D. Larkins. Ccrt:ii!1 incriminating items are stated to have been ecovered from .fie ftltter's H

996 SUPREME COURf REPoifTs [1984] 3 s.c.R.. ..

I house. His alleged that on interrogation after arrest F.D. L.arkins and K.H. Larkins confessed t.hat they had been passing. on classifie0d information relating to the defence of the country' to a foreign agency.

It is further alleged that Major General (Retd). F.D. Larkins

state~ that. he had engaged . T:t. Col. {Reid.) Jasbir Slngh as his sub•agent for procuring secret/restricted documents and.manuals relatihg to armament. On this disclosure the search of the house of Jasbir Singh was condubted 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 secret/clas- . sified information to Major General. (Retd.) F.D. Larkins and

Jaspal Singh Gill, the respondent, for monetary co'nsideration.

H~ appears to have further disclosed that many secret/restricted manuals and. documents were .uilauthorisedly got issued to him from D.G.J. and E, ME.libraries to which he ined access through the good offices of certain Army. Officers and by impersonating. himself as a serving officer when actually he was retire'1 and that the information contained iii these documents and manuals was . passed on by. him to Major General (Retd.) F.D; Larkins and Jaspal singh Gill alias Jassi Gill . resident. of 82, Sunder Nagar, New Delhi, the respopdent, who representen a private firm namely, M/s EMGEE Tnternational Pvt. LJd., and with whom he, Lt. col (Reid.) 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 GilJ alias.Jassi Dill,· the respondent herein, was co11ducted at 82, Sunder ' Na gar. New Delhi. Some secret/restricted documents .· alongwith . a Defence telephone directory connected with the Army are stated to have bee~ recovered from his. possmion and he was arrested on November 19, 1983.

. It is alleged that ihe respondent herein had obtained cfassified • information on defence m, atters through the aforesaid Jasbir Singh for monetary. consideration .tnd bad passed on the information to the U.S. Intelligence Opergton, During 'the search of the hoJl.'e. of Jaspal Sil)gh as many as l3 invitation cards from the tr.S. cials for. cocklail and "dinner parties are alleged to have been recovered. showing the' association of the respondent

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. STATE v. s. GILL (Venkataramiah, J.) 997

' with foreign agents as defined in section 4 of the Offieial Secrets Act. It is alleged that the respondent. was paying Rs: 1,000/- per month to Jasbir Singh and Rs. !, OOOf "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 .the vario.lls offences which are really of a serious nature.

During the investigation, the respondent made an .application for b!!il before the Addl. Sessions Judge, New J)elhi and it was .. rejectecfin January, 1984. Then again he made another application ·

~' for bail before the Sessions Court. Before the said .!lfil:ll; tation

could be taken up, he made an application undct section 482 of the Criminal Procedure Code befor3 the Hige Court of Delhi for bail..

The learnd Judge. of .the High Court w.ho 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 con• viction of the respondent proceeded to enlarge him on bail Subject t.o his. furnishing a personal bond in the su~1 of Rs: 5,000/- with one surety in the like amount. it may be staled here that•he very same }earned Judge had dismissed earlier the bail application of Jasbir Singh who was the employee of the respondent.

Aggrie- . ved. by the' order' of the High Court enlarging the respondent on bail, th~ prosecution has filed ibis Special Leave Pe'tition for revoking the said order of bail.

The offence punishable unner section 3 of the Official Secrets Act, 1923 with. which the respondent is charged relates to military affairs and it is punishable with imprisoment which may extend to fourteen years. This Court in The State v. Captain Jagjit 3ingh!'\ has indicated that the Court should eiercise ll ·

. ~I) A.I.R. 1'62 s, c, 2S3

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greater degree or are in enlarging n .bail an accused wlit>1s charged with the offence. punishable under seciion 3 of the Official Secrets Act when it relates to . military affairs: I hve also goe . thr9ugh the decisions oft.his Court . iii Gurcharan Singh & Ors. v.

State (l)clhi Administtation)l1l and Gudikanti Naiasimhulu& Ors. v.

Publi~ Prosecutor, High Court "/ Andhra_Pradehl') which deal with , the principles 'gov.erning the grarit or bail. Jt may be mentioned.

here that in ihe l:.st of the above cases, the accnssed had been acquitted by the tTial . court hut 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 i1,1volving non-bailable . offences particularly iyhere the trial bas not yet corilmenced should take into consideration .various matters such as the natllfl'. and seriousness of the on.ence, tbe character of the evidence, circumstances which are {leculiar to the accused, a rea$onable posibility 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 consideraiions.

Q • On going throvgh the o.rder passed by /he High Court, I feel that its decision that the material collected by the prosecutions and the evidence io be adduced at tfie trial would not be sufficient to sustain a conviction appea; s to be a _premature orie in the circum stances of this case. Since the trial is yet to begin; I do not pro pose to say anythin~ more at this sjage lest it should prejudice either the accused or the prosecution than observipg that on a'

prsual of the complaint .anti the other material available in the case, it cannot reasonably be stated that the prosecution case against the respon.dent is such that _it can bethtown out at t.he 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 secutity of the State, Espionage and intelligence are utilised to pass n information regarding miii.tary plans; equipment, technical advances etc. of one country to another.

Naturally passing on of . such information from our couni.ry to a foreign count1' is bound to .be most harmful to our country. The

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(l) [1978] 2 S.C.R. 358.

. (2) [1978] 2 S.C-R, 371.

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srAtil v. s. GILL (Venkatdrarniah, J.) 999

persons accused alongwitl: the respondent are. admittedly ex-military men well versed in .. military affairs who are capable of esta" blishing bridges with the sensitive sections of the defence servkes.

The respondent is also alleged to be having some dealings with the defence department andJasbir Singh in the employment of the respondent. .The .. allegations made by the prosecution which no doubt have still to be established at the trial sugget that the respondent and tbe persons accused alongwith him are persons of easy conscience. in so far a.s 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 of the case do not appear to. have . been considered by the High Court. It is seen that while dismissing the hail application of Jasbir Singh on April 24, 1984, the learned Judge qf !he 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 m~<le by the High Couri against the sustainabi ..• lity 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 respo_ndent. on bail in the larger i.nterests of the state. It is urged that the responent 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 suspende.d by this Court by an order made on June 4, 1984 nd the respon

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A dent was ordered.to be. rearrested 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 directe<l to ' . - ' . . - . remain judical custoCly until further orders to be passed by a B competent court.

1 The trial court shall proceed to dispose of the' case without feeling itself bound by any of the observations of the High Cou.rt. .

S.R. . Petition aliowed

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