G.R. Luthra, J.
(1) The present petition is for grant of bail to A. P. Sarthi, petitioner, who according to the prosecution, along with a number of co-accused committed offences punishable under Sections 3, 5 and 9 of the Official Secrets Act read with Section 120B IPC.
(2) S.L. Maneklal Industries Pvt. Ltd. has its head office at Bombay and branch office at 10, Hailey Road, New Delhi. Yogesh T. Maneklal was managing director of the said company while Coomer Narain was manager in charge of the Delhi office. The aforesaid . company was having dealings and collaboration with different firms in Germany, France, Poland, etc.
(3) The case of the prosecution briefly is as follows. The foreigners wanted to exploit the assistance they were rendering to the running of the Company and wanted to obtain secret information with respect to policy of the Government of India concerning industrial finances, foreign collaboration, foreign investments as well as the one relating to defense of the country, defense production, shipping and economic planning of India. They approached Coomer Narain for carrying on the work of espionage on their behalf with the promise that the company would be financially benefited. Coomer Narain wanted to consult Yogesh T. Maneklal. Accordingly, he consulted. Yogesh T. Maneklal gave the green signal with the direction that Coomer Narain shall not obtain any money from the foreigners or foreign embassies and that he would deal with them directly.
(4) Coomer Narain had been himself working in the Department of Economic Affairs, Government of India and had left with a view to join as representative of Maneklal Group of Companies at Delhi. He was having connections with a number of employees of various ministries including A.P. Sarthi, the present petitioner, since 1962. The conspiracy started in 1977. Coomer Narain started having contacts with other employees of different departments. The petitioner was then Section Officer in the Ministry of defense Production, Government of India. Amrik Lal, Pa to the defense Secretary, and many other co-accused came into contact with Coomer Narain. All of them started visiting 16, Hailey Road, New Delhi where they were regularly provided with drinks and occasionally provided with women. They used to bring documents in their respective brief cases. The documents used to be handed over to Coomer Narain who would send his peon to a nearby shop of M/s. Quick Photostat where photo copies of the documents used to be made and brought to Coomer Narain Along with originals. Coomer Narain used to return the original documents and keep the photo copies.
(5) The police conducted searches in the regional office of the company at Delhi as well as in the head office at Bombay. At Delhi the photo copies of some documents were found in the almirah of Coomer Narain. Similarly, photo copies of some documents were seized from Bombay office.
(6) Coomer Narain used to send the documents and information collected from various conspirators (employees of Central Government) to his Bombay office from where it used to be transmitted to the foreigners in France, Germany, Poland, etc. The information used to be relating to defense also.
(7) Not only that the petitioner supplied information relating to defense to Coomer Narain but also introduced other employees of the various ministries to Coomer Narain and the other employees also started supplying secret information to Coomer Narain. The petitioner retired on 31st May 1979. Before retirement he was very close to Coomer Narain and was even having duplicate key of the flat of the latter. After retirement his visits to, taking drinks and womanising at the place of Coomer Narain stopped because he was no longer useful for supplying the secret information.
(8) In the matter relating to bail especially in cases under Sections 3 and 5 of the Official Secrets Act, two Supreme Court authorities are very important. They are judgments in The State v. Captain Jagjit Singh, : 3SCR622 and The State v.Jaspal Singh Gill, 1984 Crl .L.J.1211 In both the cases, persons charged with offences punishable under Section 3 of the Official Secrets Act were granted bail by the High Court. The Supreme Court held that in such cases bail should not be granted and accordingly cancelled the bails. In : 3SCR622 , the following guidelines in respect of grant of bail were laid down :
'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 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.'
That judgment was followed in : 1984CriLJ1211 After taking into consideration the said authority as well as number of other judgments, the Supreme Court reiterated the guidelines as given in 1962 S.C. 253 The relevant observations which are in paragraph 9 of the judgment are as under:
'On a consideration of the above three decisions, I am of the view that the Court before. granting bail in cases involving nonbailable 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 having secured at the trial, reasonable apprehension of witnesses being tempered with, the larger interests of the public of the State and similar other considerations.'
(9) Learned counsel for the petitioner relied upon a judgment of Charanjit Talwar, J. in Cri. Misc. (Main) No. 779 of 1985 decided on August 19, 1985. In that case, one of the co-accused in the present case, named, Ashok Jaidika was granted bail. In that case, the main evidence against the said accused consisted of the confessional statement of one of the co-accused, namely, H.N. Chaturvedi recorded under Section 164 Cr. P.C. on 6th February 1985 by a Metropolitan Magistrate. Relying upon a judgment of the Supreme Court in Haricharan Kurmi v. State of Bihar, : 1964CriLJ344 , it was held that although a confessional statement of a co-accused was an evidence in view of the provisions of Section 30 of the Evidence Act, yet it was not a substantive evidence within the meaning of Section 3 of the said Act and, thereforee, such a confessional statement could be used only in lending assurance to the conclusion of guilt derived on the basis of substantive evidence. Ultimately, after making observations that 'the considerations referred to in Copt. Jagjit Singh's case (supra) do not arise in the present application as the character of evidence collected by the prosecution during investigation shows that it is a case of no legal evidence against the petitioner,' Ashok Jaidika was granted bail.
(10) In the present case, the judgments of the Supreme Court : 3SCR622 are fully applicable and judgment of Charanjit Talwar, J. is distinguishable on facts. Hence the prosecution does not merely rely upon the confessional statements which are of Coomer Narain, the kingpin of the alleged conspiracy and H.N. Chaturvedi, but also relies upon the statements of as many as five witnesses. Those five witnesses are S. Swaminathan, Lokesh Sharma, N.K Murthy, B.K.. Gulati and Surinder Nath. All of them stated about the close association and intimacy as well as the visiting 16, Hailey Road, New Delhi by the petitioner A.P. Sarthi. They also state that the petitioner used to drink liquor and have secret closed door meetings at the place of Coomer Narain after office hours. Some of them further say that the petitioner used to have womanising also at the place of Coomer Narain.
(11) The statement of Lokesh Sharma was recorded by the police on 8th February 1985 under Section 161 Cr. P.C. and by Shri K.C. Lohia, Metropolitan Magistrate, New Delhi under Section 164 Cr. P.C. on 12th February 1985. He, as he stated, was an employee in M/s. Maneklal Industries Pvt. Ltd. and started working at 16, Hailey Road, New Delhi since 16th June 1970. His statement under Section 164 Cr.P.C. inter alia, reads as under:
'Many government officials used to come to see Mr. Kumar Narain after 6 p.m. and the names of some of the officials were Mr. A.P. Sarathy, Mr. Amrik Lal, Mr. Jagdish Chander Arora. Mr. J.N. Tewari, Mr. H.N. Chaturvedi, Mr. S. Chandilok, Mr. S. Shankaran, Mr. P. Gopalan, Mr. T.N. Kher, Mr. S.L. Chandana, Mr. K.K. Malhotra, Mr. Swaminath Ram, Mr. Palni Swami, Mr. K.C. Sharma, Mr. S. Swaminathan, Mr. Hari Ram, Mr. Chander which I can remember now who used to work in various capacities in the Government and also in private organisations. These people used to be given drinks, eatables and sometime for some of them, worn also used to be arranged for them.'
I also used to see that these government officials, some of them used to bring certain documents and they used to give the same to Mr. Kumar Narain in his room and sometime I used to be present in his room when these documents used to be so delivered. Mr. Kumar Narain on receipt of those documents used to call the peons either Virender or Shishu Pal and would instruct them to get the photostat of those document prepared. The photostat work used to be got done from M/s. Quick Photostat Service, basement of Rohit House, Tolstoy Marg.'
Some of the government officials who used to visit Mr. Kumar Narain late in the evening were occupying different positions in the various government offices. One wa Mr. A P. Sarathy who was P.A. and P.S. in Ministry of defense and retired as Cso from Ministry of defense, Deptt. of Standardisation in the year 1978-79. He used to visit Mr. Kumar Narain since 1970 till his retirement.' He did not visit our office after 1979.'
(12) The statements of S. Swaminathan and N.K. Murthy were similarly recorded under Section 161 Cr. P.C. by the police and under Section 164 Cr. P.C. by a Metropolitan Magistrate. N.K. Murthy was also an employee of M/s. Maneklal Industries Pvt. Ltd. and he was working at 16, Hailey Road, New Delhi since 22nd August 1973. S. Swaminathan was an employee of the Central Government and retired on 31st March 1979. Their statements were more or less on the same lines as that of Lokesh Sharma.
(13) Learned counsel for the petitioner vehemently contended that the statements of the aforesaid witnesses were totally useless, that they could also not be relied upon, that the statement of H.N. Chaturvedi could not be Called confessional in as much as he exonerated himself from criminal liability in that statement, that net result was that the evidence against the petitioner was the confessional statement of Coomer Narain which was not a substantive evidence and that, thereforee, by way of following the judgment of Charanjit Talwar,J. in the case of Ashok Jaidika, the present petitioner should also be released on bail.
(14) At this stage of bail, lest there be a prejudice ai the trial to the prosecution or the accused, it is not advisable to appreciate the evidence. The only thing to be seen is the existence of substantive evidence coupled with the assuring evidence of confessional statement. It will be at the trial only that the court concerned will appreciate and find out the reliability and usefulness of the evidence. thereforee, the argument of the learned counsel for the petitioner does not cut any ice.
(15) According to the prosecution, the petitioner was arrested on January 31, 1985. The learned counsel for the petitioner contended that in fact the petitioner was actually taken away by the police authorities on January 25, 1985 arid was shown as arrested on 1st February 1985. The learned counsel urged that on 1st February 1985 there was no evidence at all against the petitioner, that the evidence against him was collected afterwards and that, thereforee, his arrest was in contravention of the provisions of Article 22 of the Constitution and Section 50 of the C. PC. which prescribed that particulars of the offence and grounds of arrest must be told to a person to be arrested. He emphasised that when the arrest of the petitioner was illegal, the least he was entitled was grant of bail.
(16) The learned counsel for the prosecution, however, relied upon Section 41(a) of the Criminal Procedure Code and urged that the petitioner could have been arrested on reasonable suspicion of his having committed the offences under the Official Secrets Act and that at the time of arrest, the petitioner was told the particulars-of the offence committed by him. In my opinion it will not be proper to decide the legality or otherwise of the arrest of the petitioner in this case because may be this matter corps up before the trial court and if any opinion is expressed, there can be prejudice to the trial. However, one thing is very clear that this factor is hardly of any importance and consideration in connection with the grant of bail when, as already stated,-the evidence against the petitioner recording his involvement in the offence under the Official Secrets Act does exist which evidence is to be weighed and appreciated at the trial.
(17) The Seamed counsel for the petitioner also contended that the evidence of the prosecution indicated that as far as the commission of the offences was concerned, S Swaminathan was more or less similarly situated as the petitioner, that it was strange that the petitioner had been made an accused while S Swaminathan was made a witness, that the showed unfairness and discrimination on the part of the police and that. thereforee, when S. Swaminathan was having full liberty, the petitioner should be given at least the liberty of remaining released on bail.
(18) I do not agree with the learned counsel in this respect. In my opinion, the judgments of the Supreme Court referred already weigh very heavily against the petitioner. The Supreme Court in : 1984CriLJ1211 emphasised that current situation in the country was such that it could easily be exploited by unscrupulous men to their own or to some foreign power's advantage and that in such cases bail should not be granted to persons charged with offences under Section 3 of the Official Secrets Act. In the present case the charge-sheet filed by the police against the petitioner is that he had supplied secret information relating to military affairs and defense to Coomer Narain who supplied it to foreign agents through his Bombay office which is punishable with 14 years of imprisonment under Section 3 of the Official Secrets Act. thereforee, there is hardly any justification whatsoever for his release on bail.
(19) The learned counsel for the petitioner contended that the petitioner was 65 years old, that the trial was going to take quite a long time because there were 188 prosecution witnesses and that, thereforee, on that ground alone the petitioner be granted bail. Learned counsel for the State however, tell that the trial will be got completed as early as possible, that committal proceedings are going to complete in the week commencing 23rd September 1985, that age of the petitioner was not a good consideration for the grant of bail and that, thereforee, the bail should be refused.
(20) I am of the view that the circumstances relied upon by the learned counsel for the petitioner do not justify the grant of bail, having regard to the seriousness and anti-national character of the offence. Not to speak of granting bail, as already mentioned, the Supreme Court cancelled the bail granted by the High Court in inch cases.
(21) Under the above circumstances I dismiss the petition.
(22) CRI. Misc. (Main) 950 of 1985 stands disposed of.