Rajasthan HC Grants Bail To Under Trial Prisoner Accused Of Leaking Military Info To Pakistani Intel, Invokes S. 436A & 437 (6) CrPC

Rajasthan High Court has recently allowed a third bail application under S.439 CrPC filed by a person accused of providing confidential military information to Pakistan, after elaborately discussing the application of Sections 437(6) and Section 436A CrPC.

While allowing the bail application, the single-judge bench of Justice Anil Kumar Upman noted that Section 437(6) is mandatory and very little discretion is granted to the Magistrate for refusal of bail, that too, only after recording specific reasons.

Section 437(6) CrPC stipulates that when the trial for a non-bailable offence before the Magistrate is not concluded within 60 days from the first date fixed for taking evidence, such undertrial prisoner can be released on bail subject to the discretion granted to the Magistrate to refuse the same.

Such specific reasons can be the “possibility of tampering the evidence by the accused, the possibility of the accused absconding if released on bail, the delay in conclusion of the trial within a period of 60 days if attributable to the accused and lastly if it appears that there are reasonable grounds for believing that releasing the accused on bail would defeat the ends of justice”, the bench sitting at Jaipur clarified.

Similarly, as per Section 436A CrPC, when the petitioner/accused has already undergone one-half of the maximum sentence that can be possibly imposed upon conviction, the accused/petitioner can be enlarged on bail, the court added.

“Admittedly, in the present case….he cannot be awarded a sentence of more than seven years. The petitioner is in custody since 08.06.2020 and thus, he has already undergone one-half of the maximum sentence which can be awarded…till date, out of 37 cited witnesses, only two witnesses have been examined for the last six months since the first date i.e., 01.05.2023 fixed for prosecution witnesses”, the judge took note of the current scenario before granting the indulgence of bail upon furnishing a personal bond in the sum of Rs.1,00,000/-, along with two sound and solvent sureties in the sum of Rs 50,000/- each to the satisfaction of the trial court.

In this case, a FIR was registered by CID Zone, Ganganagar against the petitioner Vikas Kumar and another person for offences under Sections 3 and 9 of the Official Secrets Act and Section 120-B IPC. The primary allegation was that the Technical Cell of the Department received credible information about the conduct of the accused which is a threat to the national security. The petitioner/accused was then working in the Ganganagar Military area, and as per the version of the prosecution, he was in constant touch with Pakistani Intelligence through social media. He was arraigned for divulging secret military information to Pakistan.

Earlier, the Magistrate as well as the Sessions Court dismissed the first two bail applications under Section 439 CrPC by citing the reason that bonafide efforts are being made to conclude the trial at the earliest. The High Court, while examining the lower court orders, concluded that the delay in completion of the trial is not attributable to the accused since only 2 out of 37 prosecution witnesses have been examined so far. Terming the efforts of prosecution as 'lethargic', the court added that 'conditional liberty must override statutory embargo' in instances where the fundamental right to speedy trial has been violated.

Reliance was placed on apex court judgments in Union of India v. K.A. Najeeb LL 2021 SC 56 and Mehmood Mohammed Sayeed v. State of Maharashtra (2001). To buttress the mandatory nature of Section 437(6) CrPC, which is an enabling provision that confers powers upon the court and clothes accused with the right to obtain bail, the court cited the decision in Haricharan Ramteke v. State of Chhattisgarh (2001).

The single judge also directed the accused/ petitioner to report to the police station on the first Monday of every month till the conclusion of the trial. He has also been instructed to appear before the court on all subsequent dates of hearing and as and when called upon to do so. The trial court will be at liberty to cancel the bail of the accused upon breach of any of the specified conditions including the involvement of the petitioner in any similar crime in the future.

Case Title: Vikas Kumar v. State of Rajasthan, Through PP & Anr.

Case No: S.B. Criminal Miscellaneous III Bail Application No. 12925/2023

Citation: 2023 LiveLaw (Raj)

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