In cases involving non-bailable offenses, courts must carefully consider the nature and seriousness of the offense, the character of the evidence, and the possibility of the accused absconding or tampering with witnesses before granting bail.

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 suggestion on behalf of the respondent that the matter was arguable. Consequently the High Court took the view in that as the other two persons prosecuted along with the respondent had been released on bail, the respondent should also be so released, particularly as it appeared that the trial was likely to take a considerable time and the respondent was not likely to abscond. The High Court, therefore, allowed bail to the respondent. Thereupon the State made an application for special leave which was granted. The bail granted to the respondent was cancelled by an interim order by this Court, and the matter has now come up before us for final disposal.

3. There is in our opinion a basic error in the order of the High Court. Whenever an application for bail is made to a court, the first question that it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise. If the offence is bailable, bail will be granted under S. 496 of the Code of Criminal Procedure without more ado; but if the offence is not bailable, further considerations will arise and the Court will decide the question of grant of bail in the light of those further considerations. The error in the order of the High Court is that it did not consider whether the offence for which the respondent was being prosecuted was a bailable one or otherwise. Even if the High Court thought that it would not be proper at that stage, where commitment proceedings were to take place, to express an opinion on the question whether the offence in this case fell under S. 5 which is bailable or under S. 3 which 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, however, did not deal with the application for bail on this footing, for in the order it is said that the question whether the offence fell under S. 3 or S. 5 was arguable. It follows from this observation that the High Court thought it possible that the offence might fall under S. 5. This, in our opinion, was the basic error into which the High Court fell in dealing with the application for bail before it, and it should have considered the matter even 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 the case fell under S. 3 of the Act. 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,