Justice Yogesh Khanna of the Delhi High Court found that the petitioner is
entitled to default bail; the challan having not been filed within 60 days. The
petitioner is a journalist who has been accused on spying on India for China.
The matter was heard when the petitioner moved the High Court after the
Metropolitan Magistrate dismissed his bail application in Rajeev Sharma v.
State of Delhi
(NCT) [Crl. Rev. P. 363/2020 Del HC].
Indian intelligence sources received information that the petitioner, Rajeev
Sharma, was in contact with foreign intelligence operatives and had been
receiving money transfers from shell companies, in consideration for leaking
sensitive information about India. On 14.09.2020, he was arrested and his phone
seized. Over the course of the investigation, it was found that he was in
possession of several documents relating to the Indian Defense department.
A report by the Director General Military Intelligence found that he was in
unauthorized possession of the same, and as such, any unauthorized disclosure of
its contents would be detrimental to our national security. The accused filed an
application on 14.11.2020 under S.167 CrPC requesting bail as no charge sheet
had been filed after 60 days of arrest. The Chief Metropolitan Magistrate
dismissed the application stating that the period of 60 days had not yet
S.167 of the Criminal Procedure Code deals with the procedure to be followed
when an investigation cannot be completed in 24 hours. Clause (2) of the Section
provides that a Magistrate can detain a suspect for up to 90 days when the crime
being investigated is punishable with death or imprisonment of above 10 years.
For all other crimes, this period cannot exceed 60 days.
The counsel for the State contended that where no minimum punishment was
prescribed, but the maximum sentence was above 10 years, the charge sheet could
be filed after 60 but before 90 days of imprisonment. The penalty under S.3 of
the Official secrets Act is 14 years. The State argued that as this period
exceeded 10 years, the Magistrate was right in keeping the petitioner in custody
for longer than 60 days.
Justice Khanna looking into various precedents, noted:
This gives an answer to the issues raised in this petition that the offence must
have the imprisonment for a clear period of 10 years or more only then Section
167(2)(a)(i) Cr.P.C. would be applicable. This view also finds favor in Rajeev
Choudhary vs. State of NCT of Delhi
2001(5)SCC 34 wherein it was held the
words not less than
would mean that the imprisonment should be of 10
years or more and would cover only those cases for which the punishment and
imprisonment would be for a clear period of 10 years or more.
He also considered that while the Official Secrets Act prescribed a sentence of
14 years for the offence of spying, it made no mention of a minimum sentence and
thus does not pass the test of ‘clear period of 10 years’. Thus, the maximum
period for detention without charge sheet in this case would be 60 days, and as
such, the order passed by the Metropolitan Magistrate is illegal. The petition
was allowed as the accused was entitled to default bail.
In the present situation, the accused was found with several classified military
documents. He was also found to be in contact with certain Chinese nationals,
thereby clearly establishing the existence of a prima facie case. However, his
guilt or innocence can only be determined after the conclusion of the trial. As
such, the Court granted his bail, as a matter of procedural fairness.
Written By: Prime Legal Law Firm
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