Cdr. (Retd.) Jarnail Singh Kalra vs CBI

Sunil Gaur, J.—During the investigation of Naval War Room Leak case (RC 02 (A)/2006/ACU-IX), it came to light that retired Captain S.S. Rathore was in close contact of main accused Kulbhushan Parashar and was receiving illegal gratification for providing secret information and on 23rd June 2006, search was conducted at the residence of retired Captain S.S. Rathore and at other several places and during these searches, certain incriminating documents were recovered, which prima facie appear to be official and classified documents of the Ministry of Defence. It also transpired during the investigation that retired Captain S.S. Rathore had unauthorizedly obtained three classified documents of the Ministry of Defence from his ''Batch Mate'' and friend Cdr.(Retd.) J.S.Kalra, from Indian Navy and his friend Cdr. (Retd.) J.S. Kalra, i.e., the Petitioner who was working as Deputy General Manager, Customer Service, Hindustan Aeronautics Ltd. (HAL).

The three documents unauthorisedly passed on by the Petitioner to Retd. Capt. S.S. Rathore was classified as ''SECRET'', i.e., they were not meant to be in public domain. The description of these three documents are as under:

(i) A copy of letter dated 5.12.05 of Sh. NSS Parmar, Commander, Joint Director, Naval Air Staff to Director, Planning Office, Capital Acquisition, Department of Defence Production and Supplies, alongwith a brief on Seaking 42B Naval Helicopters, documents as marked as ''Secret''.

(ii) Photocopy of letter dated 10 March 2007 of Commander NSS Parmar, Joint Director Naval Air Staff (JDNAS) addressed to Director, Planning and Coordination, Department of Defence Production and Supplies along with its enclosures, on acquisition of 6 Medium Lift Utility Helicopters for Indian Navy, documents marked as ''Secret''.

(iii) Photocopy of letter dated 10 March 06 of Commander Deepak Adhar, JDNAS addressed to DDPandS, Director Planning and Coordination, on acquisition of 37 Multi Role Helicopters for Indian Navy, documents marked as ''Secret''

During the investigation of this case, it was revealed that the copy of above said three secret documents remained in the possession of the Petitioner as he was acting as Liaison Officer of HAL with Ministry of Defence and in this regard, statements of the Planning Officer (CAP), Deputy Secretary (Aero), Senior Manager, Customer Services (HAL), etc. have been recorded.

The allegations against the Petitioner are that he had unauthorisedly passed on the above said three secret documents, received from Ministry of Defence, pertaining to Navy to his co-accused S.S. Rathore. Petitioner was an employee of the Ministry of Defence and the above said three secret documents were entrusted to him in his official capacity and he is said to have played an active role by supplying the aforesaid classified information to his co-accused S.S. Rathore whose links with prime accused of Naval War Room Leak Case have been prima facie established. Thus, the Petitioner has been called upon to face trial for commission of offence u/s 3, 5 and 9 of the Official Secret Act, 1923 read with Section 409 and 120-B of the Indian Penal Code in RC No. 04(A)/2006.

This bail petition is pressed on the ground that the Petitioner is in custody since June, 2006 despite there being no evidence against him. Petitioner claims parity with Abhishek Verma, who has been granted bail in Bail. Appl. No. 2546/2007 on 30th May 2008 by S. Muralidhar, J.

Learned senior counsel for the Petitioner contends that the alleged recovered documents were not in the lone possession of the Petitioner and their movement was from one desk from other, and therefore, the Petitioner cannot be pinned down as the culprit in this case and therefore, he deserves bail.

This petition is opposed by Respondent primarily on the ground of the gravity of the offence. It is pointed out that the incriminating documents were in the possession of the Petitioner and they have been recovered from his co-accused S.S. Rathore and no satisfactory explanation is coming forth from the side of the Petitioner. It is submitted that the three secret documents in question contain the present and the future plans of Indian Navy and about upgradation of its facilities and also provide insight into the present capabilities and proposed futuristic upgradation of Indian Navy. It is also submitted that the frequent interaction between the Petitioner and his co-accused S.S. Rathore stands reflected from the call details of the period in question and the possibility of Petitioner trying to influence the witnesses cannot be ruled out.

After having heard both the sides at length and upon perusal of the material on record, I am of the prima facie view that at this stage, it would be pre- mature to say that there is no evidence against the Petitioner. Whether the offence of criminal conspiracy is made out or not, would be seen by the trial court at the stage of hearing on the point charge. During the course of the arguments, it was brought to my notice that upon a petition of co-accused S.S. Rathore, passing of the order on the point of charge has been stayed by another Bench of this Court. It may be so.

For the present, the question is of grant of bail. There can be no parity in matters of granting bail and therefore, the reliance placed upon the case of another accused Abhishek Verma in another case is misplaced. The criteria for grant of bail is well settled and in cases pertaining to Official Secrets Act, 1923, it stands highlighted by the Apex Court in case of State Vs. Jaspal Singh Gill, , which is as under:

The Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the 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 and similar other considerations. The Court should exercise a greater degree of care in enlarging on bail an accused who is charged with the offence punishable u/s 3 of the Official Secrets Act when it relates to military matters.

Upon perusal of the order dated 28th August 2008, of the learned Additional Sessions Judge, Delhi, declining bail to the Petitioner, I find that the very arguments raised before me have been dealt with in this order with cogent reasons.

The twin grounds on which I am not inclined to grant bail to the Petitioner are, firstly, the magnitude of the prima facie involvement of the Petitioner in committing the offence in question; and secondly, of there being every likelihood of Petitioner tampering with the evidence, if released on bail.

With the aforesaid observations, this petition is dismissed. However, anything said herein, shall have no bearing at trial.