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PETITIONER: STATE

       Vs.

RESPONDENT: JASPAL SINGH GILL

DATE OF JUDGMENT25/06/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J)

CITATION:  1984 AIR 1503            1984 SCR  (3) 993  1984 SCC  (3) 555        1984 SCALE  (1)990

ACT:      Special Powers  of the High Court to enlarge an accused on bail  under section 439 (1) read with section 437 (3) and 482 of the Code of Criminal Procedure, scope of.

HEADNOTE:      The respondent  along with three others were accused of having committed  offences punishable under ss. 3,5 and 9 of the Official  Secrets Act,  1923 read  with s.  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 s.  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. 5,000/- 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: 1:1.  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

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in enlarging  on bail  an accused  who is  charged with  the offence punishable  under s.  3 of  the Official Secrets Act when it  relates  to  military  affairs.  Here  the  offence punishable under s. 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 v. Captain Jagjit Singh, A.I.R. 1962 S.C. 253 Gurcharan Singh  & Ors  v. State  (Delhi  Admn.),  [1978]  2 S.C.R.  358;   Gudikanti  Narsaimhulu   &  Ors.   v.  Public Prosecutor, High  Court of  Andhra Pradesh,  [1978] 2 S.C.R. 361, referred to [998C-D; 998A; 997H]      1:2. 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]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: 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. M(M) No. 421 of 1984 995      R.N. 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.) F.D. Larkins,  Air Vice  Marshal (Retd.)  K.H. 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 F.D. 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.

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    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 S. Raghavendran that for some days immediately prior to that date  AVM   (Retd.)  K.H.  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.  20,000/- per 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 observation. The links of the said K.H. Larkins and his brother Major General (Retd.) F.D. 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  K.H. Larkins  as well as that of F.D. Larkins. Certain  incriminating   items  are   stated  to  have  been recovered from the latter’s 996 house. It is alleged that on interrogation after arrest F.D. Larkins and  K.H.  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). F.D. Larkins stated  that he  had engaged Lt. Col. (Retd.) Jasbir Singh  as  his  sub-agent  for  procuring  secret/restricted 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 secret/classified information  to Major General (Retd.) F.D. Larkins and  Jaspal Singh Gill, the respondent, for monetary consideration. He  appears to  have further  disclosed  that many   secret/restricted    manuals   and   documents   were unauthorisedly  got  issued  to  him  from  D.G.I.  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.) F.D. Larkins and Jaspal Singh  Gill alias  Jassi Gill  resident of 82, Sunder Nagar, New  Delhi, the respondent, who represented a private firm namely, M/s 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  secret/restricted 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 U.S. Intelligence Operator. During the search of the house of Jaspal Singh as many as 13 invitation cards  from the  U.S. 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. 1,000/-  per month  to the  Jasbir Singh and Rs. 1,000/-

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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. 5,000/- 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 v. 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.   v.   State   (Delhi Administration) and  Gudikanti Narasimhulu  & Ors. v. 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

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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. S.R.                                        Petition allowed

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