Judgment

WAHCHOO, J. : The respondent Jagjit Singh along with two others was prosecuted for conspiracy and also under Ss 3 and 5 of the Indian Official Secrets Act. No. XIX 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 S. 498 of the Code of Criminal Procedure to the High Court, and the main contention urgent before the High Court was that on the facts disclosed the case against the respondent could only be under S.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 sugg