[Espionage Case] Delhi Court Dismisses Bail Plea Of Freelance Journalist Rajeev Sharma [Read Order]

Additional Sessions Judge Dharmender Rana denied him bail on the ground that sufficiently grave and incriminating material was available on record against him and the Court found that the allegations against him were well founded.

It may be noted that on Monday (14^th September), the Delhi Police Special Cell had arrested Sharma under the Official Secrets Act, 1923 (OSA), alleging that he possessed classified defence-related documents.

Delhi police officials had also stated that the journalist was arrested for passing sensitive information to Chinese intelligence.

Arguments put forth

It was submitted by the Counsel of Rajeev Sharma that the documents in question are neither secret nor classified. It was submitted that there is a well-established procedure to declare the documents as secret or classified. It was submitted that in violation of the said procedure, the documents in question cannot be claimed to be secret.

It was further submitted that merely because the applicant/accused is an accredited journalist, he is not entitled to enter the Defence Ministry. It was submitted that there is a very strict and elaborate procedure to enter the Defence Ministry and nobody can enter the Ministry without undergoing the strict procedure for entry.

It was further submitted that arrest of the applicant/accused in the instant matter is pre-mature and the police should have made a thorough probe and after contacting the defence ministry should have apprehended the applicant, in case, if the police comes in possession of some incriminating material against the applicant/accused.

It was submitted that no offence u/s 3/4/5 of Official Secrets Act is attracted in the instant case. It is further submitted that the applicant/accused is in Judicial Custody for past 34 days and investigation qua him is already complete. It was thus prayed that applicant/accused may be released on bail.

On the contrary, Addl. PP argued that applicant/accused is having links with foreign intelligence officer and has been receiving funds from his handler through illegal means and Western Union money transfers the platform for conveying sensitive information, having bearing on national security and foreign relations, to his handler based abroad through electronic means.

It was submitted that during the investigation, it was found that the applicant/accused is indulged in the procurement of secret, confidential and sensitive documents or material information and conveying the same to his handlers (Chinese Intelligence Officer) and in lieu of that, he was getting remuneration through hawala transactions/funds through shell companies being operated through Chinese people in Delhi.

It was submitted that instant matter relates to national security and sensitive documents are still under investigation and if the applicant is released on bail, he may try to influence the witnesses which would hamper the fair course of investigation.

Court's Observations

The Court disagreed with the defence counsel's argument that in order to attract the provisions under the OS Act, the documents in question must be necessarily secret or classified.

In this context, the Court remarked,

"Reliance is placed upon the judgment of Hon'ble Apex Court in the matter of Govt. of NCT of Delhi v. Jaspal Singh in Criminal Appeal No. 248 of 2003 wherein it has been observed by the Apex Court that the word 'secret' in clause (c) of sub-section (1) of Section 3 qualifies official code or password and not any sketch, plan, model, article or note, document or information and as per Section 3(2) of the Act when the accused was found in conscious possession of the material and no plausible explanation has been given for its possession, it has to be presumed that the same was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the State."

The Court also said,

"Even if it is presumed for the sake of arguments that the impugned documents were not found to be 'Classified Documents' or were collected from any open source that does not take the case out of the purview of the OS Act." (emphasis supplied)

The Court was satisfied that there is sufficiently grave and incriminating material available on record against the applicant/accused.

Upon a perusal of the telegraph chat, statement of witnesses recorded under Section 164 Cr.P.C., information retrieved from the Email account of the applicant accused and the nature of documents seized from the possession of the accused, the Court was of the considered opinion that the allegations against the applicant accused are well-founded.

The Court said,

"Recovery of the sensitive documents viewed against receipt of money by the applicant/accused from tainted sources and his relationship with the foreign agents goes a long way against the plea of his innocence." (emphasis supplied)

Further, the Court also observed that from the conduct of the family members of the applicant accused, it was evident that they are attempting to influence the witnesses.

"Such an approach is really a cause of serious concern", noted the Court.

Considering the seriousness of allegations, the enormity of charge and the crucial juncture of the pending investigation, the Court was of the opinion that applicant/accused does not deserve the indulgence of the court and his bail application is bereft of merits.

The application was dismissed and was disposed of accordingly.