STATE OF GUJARAT Vs. SULEMAN HAJI ISAK

JUDGEMENT

(1.) It appears that on the secret intelligence received by DSP-KUTCH and the Circle Indpector of Police, the residential premises of the respondents were searched and certain material which would constitute the Confidential Secret under the Indian Official Secrets Act, 1923, was recovered and ultimately the offence punishable under the said Act has been registered against the respondents vide C.R. No. 18/91, C.R. No. 19/91 and C.R. No. 20/91 of Khavda Police Station. The accused persons had moved the Court of learned J.M.F.C., Khavda for obtaining the orders of bail. These petitions came to be allowed and the orders of bail were issued by the learned JMFC, Khavda. Being aggrieved and dissatisfied with the above-said orders of bail the State of Gujarat had filed the revisions before the learned Sessions Judge, Kutch at Bhuj. These revision applications also came to be dismissed but certain stringent conditions were imposed. Ultimately the Stale of Gujarat has approached this Court for the cancellation of the orders of bail granted by the Courts below.

(2.) The consideration which has weighed before the Courts below is the fact that, though the petitioners (sic.) were arrested for the offence punishable under Indian Official Secrets Act, 1923, the charge-sheet was not filed within the stipulated time as provided under Section 167 of the Code of Criminal Procedure, 1973, and therefore, acording to the view taken by the Courts below the accused persons were required to be bailed out.

(3.) While doing so the Courts below have placed reliance upon a decision of this Court in Shardulbhai Lakhmanbhai Pancholi & Anr. v. State of Gujarat, 1989(2) GLH 330 = [30(2) GLR pg. 1388]. This decision makes it abundantly clear that, if the charge-sheet is not filed within the stipulated period the accused persons would be entitled to be released on bail under Section 167 of the Code of Criminal Procedure, 1973, irrespective of the prima facie case against them. Mr. Trivedi wanted to place reliance upon certain unreported decisions of this Court with a view to canvass that in the instant case the provisions contained under Section 167 of the Code of Criminal Procedure, 1973 would not be applicable. But a consideration of those judgments on which Mr. Trivedi wanted to place reliance would go to show that they do not deal with the question which is being required to be examined and decided in present case. Looking to the F.B. decision in Shardulbhai Lakhmanbhai Pancholi (supra) it becomes clear that the charge-sheet was not submitted within the stipulated petition the accused were entitled to be enlarged on bail under Section 167(2) of the Code. It is true that so far as the offence punishable under the provisons of Indian Official Secrets Act, 1923 is concerned, the consent is required to be obtained. But because of this position it cannot be said that the above-said F.B. decision in Shardulbhai Lakhmanbhai Pancholi (supra) would not be applicable.