Case Summary
| Citation | State v. Captain Jagjit Singh (1962) 3 SCR 622 |
| Keywords | bail, army personnel, conspiracy, errors |
| Facts | Jagjit Singh along with two others was prosecuted for conspiracy (Section 120B, IPC) and also under Sections 3 and 5 of the Indian Official Secrets Act, 1923. Jagjit Singh is a former captain of the Indian Army. The other two persons were employed in the Ministry of Defense 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. This case was decided according to Cr.P.C., 1898. Sections 3 (Penalties for spying) is a non-bailable offence. Sections 5 (Wrongful communication of information) is a bailable offence. Application for bail of Jagjit Singh was rejected by Additional Sessions Judge. The Court found non-bailable offence. High Court has granted the bail and held that, at stage of bail there was no need to decide under which section offence has been committed. |
| Issues | whether this is a case which falls prima facie under Section 3 of the act? |
| Contentions | |
| Law Points | SLP was filed in Supreme Court. By interim Order Supreme Court cancelled bail. Even in final decision Supreme Court approved its ‘Interim Order’. High Court was completely wrong when it decided that at the stage of bail there was no need to decide category of offence. High Court did not decide under which section of Indian Official Secrets Act, 1923 offence had been committed. There are following matters must be considered before granting bail: → Accused- circumstances which are peculiar to the accused, → Offence – nature and seriousness of the offence, → Witness- reasonable apprehension of witnesses being tampered with the larger interests of the public or the State, → Evidence – the character of the evidence, → Presence in Court – a reasonable possibility of the presence of the accused not being secured at the trial, → Similar other considerations – Similar other considerations, which arise when a court is asked for bail in a non-bailable offence. Jagjit Singh 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. 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 up-to fourteen years’ imprisonment. |
| Judgement | In the circumstances Supreme Court said that the order of the High Court granting bail to the respondent was erroneous. So, order of High Court was set aside by Supreme Court. |
| Ratio Decidendi & Case Authority |
Full Case Details
K.N. WANCHOO, J. – The respondent Jagjit Singh along with two others was prosecuted
for conspiracy and also under Sections 3 and 5 of the Indian Official Secrets Act, (19 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.
2. 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
Section 5 of the Act, which is bailable and not under Section 3 which is non 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.
3. 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 it has to decide is whether the
offence for which the accused is being prosecuted is bailable or otherwise. If the offence is
bailable, bail will be granted under Section 436 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
Section 3 or Section 5, on the assumption that the case fell under Section 3 of the Act. It should
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then have taken into account the various considerations, such as, 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, which arise when a court is asked for bail in a non-bailable
offence. It is true that under Section 498 of the Code of Criminal Procedure, the powers of the
High Court in the matter of granting bail are very wide; even so where the offence is nonbailable, 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.
4. 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.
5. 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 of
Criminal Procedure. Now Section 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 password 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.
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6. 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 in as much 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, 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.
