The State Vs. Captain Jagjit Singh
 INSC 270 (14 September 1961)
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1962 AIR 253 1962 SCR (3) 622
CITATOR INFO :
F 1976 SC1750 (13) F 1978 SC 179 (25,30) D
1985 SC 969 (12)
Bail--Offence bailable under one section and
non-bailable under another-Procedure--Indian Official Secrets Act', 1923 (XI X
of 1923), ss. 3, 5.
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 s. 3 which was not bailable. It did not express any
opinion whether the case fell under s. 5 or s. 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 s. 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.
CRIMINAL APPELLATE JURISDICTION:, 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. S. 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 ss. 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 s. 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 s. 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 s. 3 or s. 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 s. 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 s. 5 which is bailable or under: s. 3 which is not bailable, it
should have proceeded to deal with the application on the assumption that the
offence was under s. 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 s. 3 or s. 5 was
arguable. It follows from this observation that the High Court thought it
possible that the offence might fall under s. 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 s. 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 s. 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 s. 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 s. 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 s.
120-B of the Indian Penal Code and under ss. 3 and 5 of the Act read with S.
120-B. Prima facie therefore, a case has been found against the, respondent
under s. 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 s. 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 s. 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
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.