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 elapsed.

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.

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