Case ID: 1315

Judgment:
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 s.3 or s.5	 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 ss.3 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 s.5 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.