The Delhi High Court denied bail to a Nepal National who was a co-director of one of the Chinese Company through which the information falling within the ambit of secret/confidential/sensitive documents, material information, was being conveyed by the co-accused Rajeev Sharma to Chinese Intelligence Officers., prejudicing the National Interests and Security of India.

The bench of Justice Anu Malhotra observed that "in view of the gravity of the offence affecting the national security of the country, there is no ground for grant of bail and the bail application is declined." and further noted that the applicant admittedly 'had not chosen' to seek the grant of default bail as it becomes applicable only if the accused person falls within the parameters of Section 167(2)(a)(ii) falls within the category of a person 'who is prepared to and does furnish bail.'

In this case, the applicant, a co-accused in the 2020 espionage case, was a co-director of one of the Chinese companies which was funding the prime accused Sharma for conveying secret and confidential information to Chinese Intelligence Officers. An FIR under Sections 3, 4 & 5 of the Official Secrets Act, 1983 & Section 120B of the Indian Penal Code, 1860.

Advocates Venamra Mahaseth, Bhaskar Tripathi, and Abhishek Singh appeared on behalf of the applicant and submitted that he has been falsely implicated in the instant case and submitted that the other co-accused have though availed the benefit of the default bail under Section 167(2) of the Criminal Procedure Code, 1973, he could not avail the same as he could not afford to hire any advocate for his defence. It was also submitted that while the co-accused were arrested by the Enforcement Directorate, the agency did not choose to arrest the applicant.

Opposing the bail plea, APP Shoaib Haider submitted that during the search of the house of the co-accused Sharma several articles including some sensitive/confidential documents related to the Indian Defence Department were recovered was indulging in procurement of secret/ confidential/ sensitive documents/material information conveying the same to the Chinese Intelligence Officers. It was also submitted that Sharma was being funded through these shell companies, of which applicant is the co-director, on the directions of Chinese intelligence officers for the information provided to them by him.

The Court denied the bail to the applicant accused and observed that "it has been rightly held vide order dated May 20th, 2022 of the Court of the Additional Sessions Judge-05, New Delhi declining the prayer made by the applicant seeking the grant of bail observing to the effect that there is no parity between the applicant and the co-accused granted default bail under Section 167(2) of the Cr.P.C., 1973."

The Court further directed the Registrar General to to expeditiously implement the observations made in the case of Arvind Kumar Saxena V. State and create a database and software for the District Courts of Delhi for updating of the date in relation to the pending remand applications during the course of the investigation pending before the Trial Courts with the dates of arrest and dates by when the requisite charge-sheet is to be filed in terms of Section 167(2) of the code and the date when the said charge-sheet has been filed.

The Court further expressed that creation of such a database would assist the Trial Courts in preservation of the rights of personal liberties of the accused appearing before them by informing the accused on coming to know that an accused person before them is entitled to the indefeasible right of default bail and may thus exercise the same if he/she is willing to furnish bail.

Accordingly, the Court denied the bail to the Applicant.

Cause Title- Sher Singh @ Raj Bohara vs. State (NCT of Delhi)

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Delhi High CourtJustice Anu Malhotra

Sanjoli N Srivastava