http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: THE STATE

       Vs.

RESPONDENT: CAPTAIN JAGJIT SINGH

DATE OF JUDGMENT: 14/09/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. 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)

ACT: Bail--Offence  bailable under one section  and  non-bailable under another-Procedure--Indian Official Secrets Act’,  1923 (XI X of 1923), ss. 3, 5.

HEADNOTE: 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.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION:,   Criminal Appeal No.  118 of 1961. Appeal  by special leave from the judgment and  order  dated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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 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.