K K WARRIER Vs. STATE OF KERALA

JUDGEMENT

(1.) These two applications for bail are by the two sets of accused who are being prosecuted for offences under S.5(2) of the Indian Official Secrets Act, 1923 hereinafter referred to as the Act read with S.6 of the Defence of India Act, 1962.

(2.) The case for the prosecution has been dealt with, in detail, by the Second Additional Sessions Judge, Trivandrum and need not be repeated. Learned counsel for the petitioners contended that on the facts stated in the F. I. R. no offence under S.5(2) of the Act is made out and on that ground alone the petitioners are entitled to be released on bail. I cannot agree that no prima facie case is made out. If any person receives any secret official note, document or information either knowing or having reasonable grounds to believe that the said note, document or information is passed on by any one in contravention of the provisions of the Act the person who receives would be guilty of the offence. The publication of the photostat copy of the confidential letter in the papers is not denied by the petitioners. So the charge under S.5(2) will lie, but I refrain from saying anything more as it is a matter which has to be finally decided at the time of the trial.

(3.) The question that arises here is whether this is a case in which the petitioners could be enlarged on bail. An offence under S.5(2) was originally one punishable with imprisonment for a term of 2 years or with fine or with both and was bailable. By S.6 of the Defence of India Act during the period of emergency the punishment prescribed under S.5(4) has been enhanced to 5 years and fine and the offence has been made non bailable. The section of the Code of Criminal Procedure under which the High Court is empowered to act in the matter of grant of bail is S.498, the material portion of which reads as follows: