# [1962] 3 S.C.R. 622

- **Citation:** [1962] 3 S.C.R. 622
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. Wa~Choo, K. C. DAS GtrPTA nn<l . J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1962-3-s-c-r-622-2463
- **Pages:** 6

## Headnote

Boil-O!Jene< bailable under on• 8'ction qnd m:m·bai/abl<
un<(u anoth•r-Proc<dure-In4ian Official Srcrtts Act, 1923
(XlX of 1923), as. 3, 5.
The respondent who was a fonner Captain of the Indian
Army and was employed in the delegation in India of a Prench
Company \\'as prostcuted aton_g' with t\\'O 01hers for co.nspiracy
and pas~ing on Official SeCrets to a for,.ign agency under s.s.3
and S of the Official Secrrt< Act. llis application for bail was
rejocted by the Se'5ions Judge but the Hi.eh Court allowed bail
on the ground int.r a/ia .. that his case might fall only under s 5
which was bailable and not s. 3 which was not bailable.
It did nnt exprc~s any opinion \•;hcther th(" case fell under s. 5
or s. 3 in view of the co:nmitment proceedings \vhich ,,·ere
goin~ on at the fone.
On appeal by the· State.
Htld, that the High Court should have proceeded to
deal with the application for bail on the assumption that the
offence v.•as under s. 3 and thererore not bailable.
It :should
have then taken into ar.count the various considerations such as,
nature and seriousness of the offence, the character of tbe
evidence, circumst.ances pCculiar to the accused, possibility of
his .Jhsconding, tampering with \vitnesses larger interests of the
pulilic and the State __ and
~imilar other considerations \vhich
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 ~ufri.:ient ground for grantini IJail.
CRIMINAL A1•PF.LLATF. ,foRISJJIC1'IO~: Criminal.
Appeal Xo. ll8 of 1961.
Appeal Ly special leave from the judgment.
anrlordcr dated May JO, 19ol, of the Pnnjah High
Court (Circuit Bench) at DPlhi in Criminal Misc.
No. '.?55-D of J!J(il.
C. K. D11phtary,
8olicif-Or.General of India,
Eepin Behari u1l, q'. /If. Sw and R. H. Dhebar, for
the appellant.
N. C.
Chatterjee,
!If eluir Singli Chadd<.1h,
A. F;. Nag and/. S. Sawhney, for the respondent.
,3,l;'_C:B,.
> S(f PREME) CQ{;J'RTJ~:Jl!OO,RT$
6~3
.• ·, ·J!J1il.·Septerriberr J4. The-c-Judgment of the
Court was deliv_ered by ; .
. ,: :
.. · ..
.
. . WANCHOO, ,J.---:The respondent . Jagjjt Singh
along with two others was prosecuted for conspiracy
and also under ss. 3 and 5 of the Indian Offi9ial
Secrets Act, No. XIX of 192:3, (hereinil>f~er called
the A,ct).
The respornlent is a 'former captain of
the. Indian Army and 'vas at the t.iml' 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
passedon official secrets to a foreign agency,
The respondent applied for bail to the Sessions
Judge; but his appliell.tion 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 ~. 5 of the Act, which is
bailable and not 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 nrntter was arguable. Conseqnently
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, particul11rly a> it appeared that the trial
was .·likely to takp a considerable time ancl the
respondent was not likely to absconu. The High
Court, therefore, allowed bail to the respondent.
Thereupon the State made an IJ-pplication for special
leave which was granted.
The bail granted to the
rf(spondent was cancelled by an interim order by
t~~Coμrt, and the matter has now come up,· before
u~ fμp final disposal.
·
There. is jp our ,opinion .a basic error

## Text

1'61
-4--
s.,,,.,..,.u ..
. .;•
'
........ --
622
SUPREME COURT REPORTS
THE STATE
1.1 •
CAPTAIN JAGJ1T SIN"GH
(1962]
( K. N. WA~CHOO, K. C. DAS GtrPTA nn<l
.
J. c. SHAH, J,J. )
Boil-O!Jene< bailable under on• 8'ction qnd m:m·bai/abl<
un<(u anoth•r-Proc<dure-In4ian Official Srcrtts Act, 1923
(XlX of 1923), as. 3, 5.
The respondent who was a fonner Captain of the Indian
Army and was employed in the delegation in India of a Prench
Company \\'as prostcuted aton_g' with t\\'O 01hers for co.nspiracy
and pas~ing on Official SeCrets to a for,.ign agency under s.s.3
and S of the Official Secrrt< Act. llis application for bail was
rejocted by the Se'5ions Judge but the Hi.eh Court allowed bail
on the ground int.r a/ia .. that his case might fall only under s 5
which was bailable and not s. 3 which was not bailable.
It did nnt exprc~s any opinion \•;hcther th(" case fell under s. 5
or s. 3 in view of the co:nmitment proceedings \vhich ,,·ere
goin~ on at the fone.
On appeal by the· State.
Htld, that the High Court should have proceeded to
deal with the application for bail on the assumption that the
offence v.•as under s. 3 and thererore not bailable.
It :should
have then taken into ar.count the various considerations such as,
nature and seriousness of the offence, the character of tbe
evidence, circumst.ances pCculiar to the accused, possibility of
his .Jhsconding, tampering with \vitnesses larger interests of the
pulilic and the State __ and
~imilar other considerations \vhich
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 ~ufri.:ient ground for grantini IJail.
CRIMINAL A1•PF.LLATF. ,foRISJJIC1'IO~: Criminal.
Appeal Xo. ll8 of 1961.
Appeal Ly special leave from the judgment.
anrlordcr dated May JO, 19ol, of the Pnnjah High
Court (Circuit Bench) at DPlhi in Criminal Misc.
No. '.?55-D of J!J(il.
C. K. D11phtary,
8olicif-Or.General of India,
Eepin Behari u1l, q'. /If. Sw and R. H. Dhebar, for
the appellant.
N. C.
Chatterjee,
!If eluir Singli Chadd<.1h,
A. F;. Nag and/. S. Sawhney, for the respondent.
,3,l;'_C:B,.
> S(f PREME) CQ{;J'RTJ~:Jl!OO,RT$
6~3
.• ·, ·J!J1il.·Septerriberr J4. The-c-Judgment of the
Court was deliv_ered by ; .
. ,: :
.. · ..
.
. . WANCHOO, ,J.---:The respondent . Jagjjt Singh
along with two others was prosecuted for conspiracy
and also under ss. 3 and 5 of the Indian Offi9ial
Secrets Act, No. XIX of 192:3, (hereinil>f~er called
the A,ct).
The respornlent is a 'former captain of
the. Indian Army and 'vas at the t.iml' 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
passedon official secrets to a foreign agency,
The respondent applied for bail to the Sessions
Judge; but his appliell.tion 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 ~. 5 of the Act, which is
bailable and not 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 nrntter was arguable. Conseqnently
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, particul11rly a> it appeared that the trial
was .·likely to takp a considerable time ancl the
respondent was not likely to absconu. The High
Court, therefore, allowed bail to the respondent.
Thereupon the State made an IJ-pplication for special
leave which was granted.
The bail granted to the
rf(spondent was cancelled by an interim order by
t~~Coμrt, and the matter has now come up,· before
u~ fμp final disposal.
·
There. is jp our ,opinion .a basic error in. the
o~qe~·,qf,thJ.J.High QQljj)t~ :i Wb.enev.Qf.,JJ,n &pplioation.
for bail is made to a court, the first question that
1961
v .
Cap(ai•J~jit $iTlfk
• <-----..!,...!..
··.·'
--
v.
Cft1ai"'1'J<1Jj# Singh
Wontfil>oJ.
•
624
SUPREME COURT REPORTS
[1962]
it has to decide is' whetht>r the otftince for which the
accused is being prosecuted is bailable or obherwi&&.
If the ofFenoe is bai!a;ble, bail· ~m be granted under
s. 496 of tho Code of Criminal Prooeduro without more
ado; but if tlhe offence is not bailable, further conei·
doration3 will ariee and the court will decide the
question of grant of b:i.il in the light of those for.
thor considerations. The error< in tho order of the
High Court is .that it did not consider whPthcr the
offence for which tho respondel\t was boing prosecuted was a bailable one or otherwise.
Even if the
High Court thought that it would not be proper·at
that stago, · whore commitment proceedings were
to take place, to express an opinion on the question
whether the offence in this case foll under s. 5 which
is bai1:1ble or under s. 3 whioh 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, how·
over, did not deal with tho application for bail on
this footing, for in the order it i~ said that the
questirm whether the o!lcnc!l foll under s. 3 ors. 5
was arguable. It follows from this observation
that tho High Court thought it po88ible that the
offence might fall under s. 5. This, in our opinion,
was the basio error into which the Higll Court fell in
dealing with the application for bail before it, and It
should have considered the matter oven 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 tho case foll under s. 3 of tho Act.
It should r.hen have taken into account the varioue
considerations,
such as, nature and seriousnel!ll
of the offence, the character of the eviden<'e,
~ircumstancos whioh are peculiar to th~ accuse<i.,
a reasonab:lo possibility of the prnsence of the
accused not being secured at tho trial, reason·
able approh(JTlsion of witnesses being tampered mth,
tho Ja.rger interests of the public or the St.te, &Ill
similar other considerations, which arise when•
court is asked for bail in a-non.bailable ofience.
Iti&true.that~der••98 o£-.eo4e- o~ C~t
•
...
..
3 S.C.R.
SUPREME COURT REPORTS
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
s.s 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 primafacie 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 th11 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 ofthe
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
19~1
Tk1State
v.
Captcin] ctjit Sinzh
WanchooJ.
1961
Thi Stfltt
•..
CaptaitJ ]a.:;·iz Singh
w .. ...,.J.
526
SUPREME COURT REPORTS
(1962)
of Criminal Procedure. Now a. 3 of the Act erects
an offence which is prt-judicial to the safety or
interests of tho State and relat{)S to obtaining, collecting, recording or publishing or communicating to any
other person any secret official codo or pass-word
or any sketch, plan, mo~cl, article or note or other
document or information which is calculated to be
or mi~ht be or is intended to he, directly or indircotly,
useful to an enemy. Obviously, tbo oll'ence is of a
very serious kind affecting tho safety or the interests
of the State. Further where tho offonoo is oommitted in relation to any work of defence, a.raonal,
naval, military or air force establishment, or station.
mine, minofo;ld, factory, do~kyard, ca.mp, ship or
aircraft or otherwise in relation to the naval,
military or air force affairs of Government or in
rolatioi"1 to any secret official code, it is punishable
with fourteen years' imprisonment. The ca.so against
tho respondent is in relation to the military affairs of
the Government, and prim~ f acie therefore, the respondent if eonv:c:ed would be liable upto fourtt'en
years'
imprisonment.
In these
circumstances
con~iclering the nature of the offence, it seems to
us that this is not a case whore di~crction, which
undoubtedly vests in the court, undc>r s. 498 of
the Cede of Criminal Procedure, Ehould have been
e:tcrcised in favour of the respondent. We advisedly
ny no more as the case ha;; still to be tried.
It is true that two of the persons who were
prosecut~d along with the reRpondent were released
on Lail prior to the commitment order; but the
caso of tho respondent is obviously distingnikhablc
from their case inasmuch as the prosecution caso is
that it jq the respondent "ho is in touch with the
foreign agency and not the other two pl·rsons
prosecuted along with him. Thu fact that tho
respondrnt m'ly 1-10t abscond is not by. itsel~ s?ffi-
.;..
cient to induce tho court to grant !um bail m a
ca.so of this nature. Further, as tho respondent
has Leen committed for trial to tho Court of Session,
l
: S.C.R.
SUPREME COURT REPORTS
627
it is not likely now that the ti:ial 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 th;s 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.
ABHIRAJ KUER
v.
DEBENDRA SINGH
(K. N. WANCHoo, K .C. DAS GuPTA and
J. c. SHAH, JJ.)
Hindu Law-:--Banaras School of Mitak8hara law-:--A.doptio,.
of wife'• sister's daughter's son-Validity.
The appellant as
reversioner sued for a declaration
that the adoption of respondent 1 by respondent 2 to her
deceased husband was invalid in law ond respondent 1 acquired no right to the properties left by the husband ofrespondent
2.
The
parties were governed by the Banaras School of
~ Mitakshara HinC:u law and respondent 1 was the sister's daughter's son of respondent 2.
The question was whether a wife's
1ister's daughter's e>n could be validly adopted to a person
governed by the Banaras School of Mitakshara Hindu Law. The
High Court answered it in the affirmative and dismissed the
suit. Reliance was placed on behalf of the appellant in this
Court on Nanda Pandit's Dattak Mimansa which specifically
excluded a wife's sister's daughter's son for the purpose of
adoption on the ground of incongruous relationship (Viruddha
Sambandha) as also on the text of Ashvalayana interdicting
.... ~
marriage with a sapinda, sagotra and viruddha sambandha girl
!uch as a wife's sister's daughter on which the author of Dattak
Mimansa had relied. It was contended that when a positive
statement in the text was followed by a nee;-ativc one, the latter
1161
Tl!e State
v.
Ca;tain ]agjit Singh
Wanchoo ].
11~1