Prolonged incarceration without trial infringes fundamental rights under Article 21 of the Constitution, justifying bail when prosecution delays proceedings unnecessarily.

ORDER :

1. This second bail application under Section 483 BNSS has been filed on behalf of the petitioner, who has been arrested in connection with FIR No.02/2024 registered at Special Police Station, District C.I.D Surakchha (Raj.) for offences punishable under Sections 3 & 9 of the Official Secrets Act, 1923.

2. First bail application filed on behalf of the petitioner was dismissed as withdrawn vide order dated 24.01.2025 while giving liberty to renew the prayer for bail before the learned trial court under the provisions of Section 480 (6) of BNSS (Corresponding to Section 437 (6) of Cr.PC).

3. Learned counsel for the petitioner submits that since rejection of the first bail application, more than six months have elapsed, yet the trial has not progressed beyond the stage of pre-charge evidence. It is contended that the prosecution is not producing its witnesses promptly, resulting in unwarranted delay in the proceedings. Counsel further submits that as the charges have not yet been framed, the applicant is precluded from availing remedy of bail before the Trial Magistrate under Section 480 (6) of the BNSS . In these circumstances petitioner has no option but to make prayer before this court for grant of bail. It is urged that the applicant has already suffered incarceration for about 19 months, having been in custody since 14.03.2024. In these circumstances, it is apparent that, his fundamental right to speedy trial, guaranteed under Article 21 of the Constitution of India, stands seriously infringed. Counsel further submits that the applicant is facing trial before the Magistrate Court, where, in any event, the maximum sentence that can be imposed in case of conviction cannot exceed seven years, notwithstanding that the offence alleged carries a maximum punishment of fourteen years. Counsel further argued that, from a perusal of the complaint submitted by the prosecution, it is clear that no incriminating material has been recovered from the petitioner’s mobile phone. Moreover, the petitioner has not even been provided with the material that is alleged to have been sent by him through WhatsApp to a person in a neighbouring country. Counsel further submits that even if the allegations made in the complaint are considered on its face value, Section 3 of the Official Secrets Act, 1923 (for short “the Act of 1923”) will not apply, but at the most, Section 5 of the Act of 1923 will apply to the case of the applicant. He has further argued that, in absence of allegation that the applicant has done it with purpose prejudicial to the safety and interest of the State, which is the per-requisite for application of , the offence under of the Act of 1923, will not apply. It has also been submitted that, to date, the prosecution has not been able to produce FSL (Forensic Science Laboratory) report related to the petitioner’s mobile phone. Due to this, the prosecution has been continuously seeking adjournments from the trial court. As proof, he submitted copies of the order sheets of the trial court. Counsel further submits that the delay in the trial is solely attributable to the prosecution, and under such circumstances, further custody of the petitioner would not serve any fruitful purpose. The petitioner is willing to comply with all conditions imposed by the Court. Finally he submits that in view of the prolonged incarceration of the petitioner, coupled with the fact that there is no immediate prospect of being concluded the trial in the near future, learned counsel prays that the petitioner may kindly be enlarged on bail. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in Union of India vs. K.A. Najeeb , (2021) 3 SCC 713 .

4. On the other hand, the learned State counsel vehemently opposed the submissions made by the counsel for the petitioner. He submits that the offence is very serious and the maximum punishment for the offence alleged against the petitioner is fourteen years under Section 3 of the Act o