JUDGMENT 1. THIS Rule is at the instance of the Superintendent; and remembrancer of Legal Affairs, West bengal, and is directed against an order dated the 4th March, 1974 passed by sri R. K. Sharma, Chief Presidency magistrate1, Calcutta, granting bail to the accused opposite parties in S. P. P. S. S. B. Case No. 93 dated 26. 4. 73 under sections 120b /437/451 /511 of the Indian penal Code and sections 3 and 9 of the official Secrets Act and Rule 111 (II), post Bye Laws. 2. THE background of facts necessary for appreciating the points involved is quite wide but may be put in a short compass. The prosecution, case, inter alia, is that the accused, Richard winn Harcosi alias Dick and Anthony allen Fletcher alias Tony along with the accused, Bela Harcos (Junior) alias bill (elder brother of Richard Harcos)all of U.S. national as well as the accused, Dr. Kuo Hsuan Chang, a British subject of Chinese origin, entered into a criminal conspiracy in the U.S.A. sometime in October, 1972 for espionage activities in India in favour of enemy country and or countries which are calculated to be or might be or intended to be, useful to enemy directly or indirectly and in pursuance of the said criminal conspiracy they came to India in the garb of tourists and recruited other spies, viz., the accused David ming Hsuan Chang the younger brother of accused Dr. Kuo Hsuan chang a British subject of Chinese origin, a resident of Calcutta, and the accused Joseph David alias Yusuf, also of the United States origin, residing at calcutta without any authority, to facilitate their smooth espionage, subversive aim sabotage activities in India for enemy country and/or countries. It is further alleged that the aforesaid accused persons visited several places in india in the garb of tourists including plaices where there are Docks, Naval bases, Military Establishments and vital installations and collected official secrets of India including Military Intelligence and passed them on to the possession of the enemy country and/or countries jeopardizing the safety, security and interest of the State. On 26.4.73 Richard winn Harcos alias Dick was arrested while he was moving suspiciously without any pass or permit in the King georges Dock Extension, a prohibited place, at about 04.00 hours with diving equipments. On 26.4.73 Richard winn Harcos alias Dick was arrested while he was moving suspiciously without any pass or permit in the King georges Dock Extension, a prohibited place, at about 04.00 hours with diving equipments. It is further alleged that he stated that he is an American Tourist staying at the Waverley Hotel at No. 11, Kyd Street, Calcutta. Upon clues obtained by interrogation, the accused, anthony Allen Fletcher, another U.S. national, was arrested on 26.4.73 at about 17.30 hours from the aforesaid Waverley hotel and some incriminatory articles were recovered from that place as well as from his private flat at 6a, Nawab serajul Islam Lane, Calcutta. The investigation proceeded, being Case No. S.P.P.S./s. B. case No. 93 dated 26.4.73, under sections 120b/437/451/511 I.P.C. and sections 3 and 9 of the Official Secrets act as well as under Rule 111/4 (II) of the Post Bye Laws. The co-accused, david Ming Hsuan Chang alias Halaku, was also arrested on 6.5.73 in the evening from the White Bear Restaurant at 171g, Free School Street, Calcutta, on identification by the accused Anthony allen Fletcher. Two other accused persons, namely Bela Haroos (Bill) and kuo Hsuan Chang are still absconding. Several applications were made on behalf of the accused persons for bail at different stages before the learned Chief Presidency Magistrate, Calcutta but were rejected. The a reused opposite party No. 2, Anthony Allen fletcher, moved an application for bail before the High Court, being Criminal misc. case No. 1704/73, but the same was rejected on 25.9.73 by the Chief justice and A.K. De, J. He again came up before this Court with an application for bail, being -Criminal Misc. Case no. 2259 of 1973, but the same WES also rejected by this Bench an 6.12.73. Prayers for bail subsequently made in the Court below were also rejected. An application for bail thereafter was moved before the learned chief Presidency Magistrate, Calcutta, on 27.2.74 o behalf of the accused opposite party. The prosecution filed a written objection to the same opposing the prayer for bail. The learned Chief presidency Magistrate by his order dated 27.2.74 directed the application for bail, made on behalf of the two accused opposite parties, to be put up on the next date, viz., 14.3.74. The prosecution filed a written objection to the same opposing the prayer for bail. The learned Chief presidency Magistrate by his order dated 27.2.74 directed the application for bail, made on behalf of the two accused opposite parties, to be put up on the next date, viz., 14.3.74. The accused-opposite parties: filed another application for bail on 1.3.74 praying that the same may be made a part of the earlier application for bail. A written objection thereto was filed by the prosecution on 2.3.74 and the learned Magistrate fixed 4.3.74 for necessary orders. On 4.3.74 the learned Chief Presidency Magistrate, calcutta, granted bail to the acused opposite parties for Rs. 10,000/- each with two sureties of Rs. 5000/- each, on condition that they shall remain confined to the 3rd floor of the Salvation army Centre at 172, Lower Circular road, Calcutta, where they shall live with Capt. Miller and his family and that they shall not communicate with any person who does not belong to the family of Capt. Miller, except the doctor of that family, and lawyers, appearing for them in the case. It was further directed that they shall not also meet any other member of the Salvation army living in the same premises or centre; and that they shall only leave the building to come to court when they shall be accompanied by one of their sureties to the court and back. The police were given liberty to keep surveillance over them at the entrance of the aforesaid premises and even when attending the court. Directions were further given that while at court the accused opposite parties shall not converse with any outsider except their surety and lawyers and shall not use the telephones anywhere. The learned public Prosecutor thereafter riled an application praying for a stay of the operation of the above-mentioned order for three weeks for enabling the prosecution to move the High Court. Time was granted and the present Rule was obtained on 11.3.1974. Appearances were thereafter entered and two affidavits in opposition affirmed on the 29thmarch 1974 and the 2nd April 1974 were filed on behalf of the accused opposite parties', Anthony Allen Fletcher alias Tony. and Richard Winn harcos alias Dick, respectively. 3. MR. Dipankar Gupta, Standing counsel, West Bengal (with Mr. Appearances were thereafter entered and two affidavits in opposition affirmed on the 29thmarch 1974 and the 2nd April 1974 were filed on behalf of the accused opposite parties', Anthony Allen Fletcher alias Tony. and Richard Winn harcos alias Dick, respectively. 3. MR. Dipankar Gupta, Standing counsel, West Bengal (with Mr. Snout kumar Moitra, Advocate) appeared on behalf of the Superintendent and Remembrancer of Legal Affairs, West bengal, in support of the Rule. Mr. Amal Dutt, Advocate, (with Mesers alak Sen Gupta and S. P. Dudewalla advocates) appeared on behalf of the accused-opposite party No. 1, Richard winn Harcos alias Dick. Mr. Sankar das Banerjee, Senior Advocate (with messrs Enjoy Kumar Bhose arid Pinaki chandra Matilal Advocates) appeared on behalf of accused opposite party No. 2, Aarhony Allen Fletcher alias Tony. The submissions of the learned Standing Counsel are of five dimensions and the learned Advocates appearing on behalf of the accused opposite panties joined issue. 4. THE first dimension of the learned Standing Counsel's contentions is that the impugned order is bad and improper, being based on a wrong approach and highlighted by unwarranted hypotheses and assumption and that instead of deciding the point at issue viz. whether on the materials on the record, bail should be granted to the accused opposite parties, the learned Chief Presidency magistrate digressed into dissensions which are not germane to the point at issue. Mr. Sankardas Banerjee, appearing on behalf of the accused opposite party No. 2 and Mr. Amal Dutt appearing on behalf of the accused opposite party No. 1 fairly submitted that some of these findings were not necessary for disposing of the application for bail, but, by and large, the learned Chief Presidency Magistrate, calcutta, appears to have been satisfied on the materials on the record before passing the order for bail. We the however, unable to agree with the defence submissions on the point. A reference to the order impugned would bring to light a rather intriguing ob serration of the learned Chief Presidency Magistrate, Calcutta, when he discussed the submissions made by the learned Public Prosecutor and the apprehension expressed by him that the release of that accused persons on bail "will amount to a publication of the Official Secret Act". A reference to the order impugned would bring to light a rather intriguing ob serration of the learned Chief Presidency Magistrate, Calcutta, when he discussed the submissions made by the learned Public Prosecutor and the apprehension expressed by him that the release of that accused persons on bail "will amount to a publication of the Official Secret Act". The learned public Prosecutor might have over emphasised the apprehension but the learned Chief Presidency Magistrate should not have overlooked that after all, those were mere submissions by the learned Public Prosecutor for consideration on merits and not a category cal averment or statement on his pan. The ultimate findings arrived at in this context are, in any event, fully unwarranted and untenable, viz. that "moreover, one accused has already been granted bail in this case and if ld. P.P. is correct then the Official secrets have already been out the responsibility of which ought to lie then on the court which granted bail to accused No. 3. " The court below further erred in pinpointing the absence of amenities and comforts for the accused in the present case and in proceeding to observe that "moreover, the accused persons- being foreigners, whose conditions of life are different, their prolonged confinement in the tropical jails of a so-called developing country may not be sufficient for preservation of their health. Whether the country is developing or not and the cheque reference is at all deserved or whether the situation of the jails in a tropical country has any bearing on the point at issue, is wholly irrelevant for the purpose of disposing of an application for bail filed under the laws of this land. Even if the local conditions be not on a par with those obtaining in the Western countries, the same has no bearing on the question of bail. The observations made, in the next place, by the learned Chief presidency Magistrate, Calcutta that "no court can ignore this aspect of the case if the court is a free court and functioning in a free country like ours" are again unwarranted and out of context. In making the aforesaid observations the learned Chief presidency Magistrate, Calcutta, was perhaps) actuated by humanitarian considerations but such consideration should not be dehors the statute and the imprimatur of judicial decisions on the point. In making the aforesaid observations the learned Chief presidency Magistrate, Calcutta, was perhaps) actuated by humanitarian considerations but such consideration should not be dehors the statute and the imprimatur of judicial decisions on the point. To give effect to the learned Chief presidency Magistrate's observations would result in adding a new dimension to the law of Bails and as was aptly observed by Viscount Simonds, J. in the case of Magor and st. Mellons Rural District, Council,.... appellant v. New port Corporation respondent reported in 1952 A. C. page 189 at page 191 "the power and duty of the Court to travel outside them (the words used by the Legislature) on a voyage of discovery are strictly limited". This is not all and there is a further incongruity. One looks in vain to the order for even a reference to, far less a consideration of, the two principal grounds taken on behalf of the state and specifically referred to at the beginning of the order, namely, that (1) the charge-sheet is going to be submitted on the next date; and (2) the observations of the Calcutta High Court in the judgment Reported in 78 C.W.N 313 at page 320. It is abundantly clear therefore, that the manner of the approach made; the nature of the findings arrived at; and the factum of non-consideration of the principal grounds urged on behalf of the State, have all resulted in vitiating the ultimate order. The first dimension of the learned standing' Counsel's contentions therefore succeeds. The second dimension of the arguments made on behalf of the superintendent and Remembrancer of Legal Affairs, West Bengal, is that the second part of section 497 (1) of the Code of Criminal procedure, as amended by section 14 of the West Bengal Maintenance of Public Order Act No. IX of 1972, has been overlooked by the learned Chief presidency Magistrate, Calcutta, in passing the impugned order. Mr. Amal Dutt, appearing on behalf of the accused opposite party no. 1, however, submitted that this contention is unwarranted and untenable inasmuch as the order passed by the court below discussed in details the principle laid down for granting bail before arriving at the ultimate findings that the present case comes within the bounds, thereof. Mr. Mr. Amal Dutt, appearing on behalf of the accused opposite party no. 1, however, submitted that this contention is unwarranted and untenable inasmuch as the order passed by the court below discussed in details the principle laid down for granting bail before arriving at the ultimate findings that the present case comes within the bounds, thereof. Mr. Dutt took us through the order which has undoubtedly catalogued several grounds on which, according to the learned Chief presidency Magistrate, Calcutta, applications for bail should be broad-based. Unfortunately, however, these grounds are mostly relevant for considering an application for cancellation of bail and not for granting bail. The failure to consider the same has resulted in a failure of justice. The learned Chief presidency Magistrate even proceeded to add one further ground to the effect that "the accused cannot be permitted to cheat the law by committing suicide". To put in a short compass, the approach has been wholly wrong and the order passed brings to light that there has been a non-consideration of the provisions of the statute, namely, the amended provisions of section 497 (1), Cr. P.C., which clearly apply to the facts of the present case. The same lays down, inter alia, that "bail in case of a non bailable offence cannot be granted unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of any offence punishable with death or imprisonment for life or imprisonment for a term or seven years or more". It is quite clear from the above that the amphasis is on the satisfaction of the court which is more stringent that "if there appear reasonable grounds, etc." The test again is positive and not negative in as much as the court must be satisfied in the facts and circumstances of the case that the accused is not "guilty of an offence punishable with death or imprisonment for life or imprisonment for a term of seven years or more". The relevant test laid down in this context by the imprimatur of judicial decisions in case of State, Appellant, v. Captain Jagjii Singh. Respondent re ported in A. I. R. 1962, S. C. 253 and the case of Swapan Banerjee alias swdpan kumur Banerjee alias kumar swapan v. Stale, reported in 75, C.W.N. 939 has also been overlooked. The relevant test laid down in this context by the imprimatur of judicial decisions in case of State, Appellant, v. Captain Jagjii Singh. Respondent re ported in A. I. R. 1962, S. C. 253 and the case of Swapan Banerjee alias swdpan kumur Banerjee alias kumar swapan v. Stale, reported in 75, C.W.N. 939 has also been overlooked. It was clearly observed in the latter case that the "provisions of section 497 (1) Cr. P. C. do not inter alia, control or qualify the provisions under section 498 of the Code of Criminal procedure but the same nonetheless constitutes one of the relevant consideration, amongst several others in the judicial exercise of the power of granting bail by the High court or the court of Sessions relating to non billable offences." The learned chief presidency Magistrate, Calcutta, has not done so unfortunately and the resultant order must be held to be bad and improper. We find, therefore, that the cardinal principles relating to bail have not been followed, overlooking in the process the provisions of the statute and running off at a tangent from the tests laid down in the imprimatur of judicial decisions. The second diversion of the submissions made by the learned standing Counsel, accordingly succeeds. 5. THIS brings us to a consideration of the third dimension of the learned Standing Counsel's arguments, namely, whether the conditions imposed by the court below are proper and adequate, commensurate with the gravity of the offence. The order of the learned chief Presidency Magistrate, Calcutta ultimately substitutes the custody in jail for the custody of a person and in that context he further appeared not to have made any enquiry about the custody concerned. The relevant part of the order is rather intriguing viz. that "they (the accused) shall remain con fined to the third floor of the Salvation army Centre at 172, Lower Circular road, Calcutta, where they shall live with Captain Miller and his family. Thereafter some other conditions have bean laid down. The prayer made on behalf of the accused persons was for bail with reasonable conditions attached thereto and not for confinement. Thereafter some other conditions have bean laid down. The prayer made on behalf of the accused persons was for bail with reasonable conditions attached thereto and not for confinement. H was been submitted before us that there is, in fact, no third floor of the premises in question occupied by the Salvation army Centre at 172, Lower Circular road, Calcutta, and that Captain Miller and his family live on the second floor the learned Standing Counsel also objected to such custody firstly because it merely substitutes the jail custody for a personal custody being wholly unwarranted and uncalled for and secondly because the place is a large area with several houses standing thereon and, in any event, it will be extremely difficult to place police pickets even on the second floor where Captain Miller and his family are stated to live. One looks in vain to the order passed by the learned Chief Presidency Magistrate, Calcutta for any enquiry made as to the suitability. of the place or of the person, although the allegations involve serious offences,- one does not again know on what materials he came to the ultimate conclusion that "of late, by allowing the Salvation Army place to be a den of hippies, it has not earned much good name, but I am told that unlike the Red Shield at Sudder Street, this place is more respectable". Such observations are unfortunate, unwarranted and uncalled for going considerably beyond the bounds of the points at issue as to whether the accused persons should be granted bail, more so, when there has been no enquiry at all as to the suitability of those institutions and people. Mr. S. D. Banerjee, appearing on behalf of the accused opposite-party No. 2, submitted that Captain Miller, who is in charge of the Salvation Army at the place in question is a well-known person of standing and that, if it be deemed necessary, relevant materials can be brought on the record by an affidavit. We, however, do not consider that such a step is at all necessary because the Salvation Army is known to be a respectable institution. The point at issue merely is whether in the facts and circumstances of the case, the accused persons should be granted bail, and, if so, whether the place of custody in question is a suitable place. We, however, do not consider that such a step is at all necessary because the Salvation Army is known to be a respectable institution. The point at issue merely is whether in the facts and circumstances of the case, the accused persons should be granted bail, and, if so, whether the place of custody in question is a suitable place. On giving our anxious consideration to the materials on the record, we are however, unable to agree with the submissions of Mr. S. D. Banerjee and Mr. Amal Dutt or with the conclusion arrived at by the learned Chief Presidency Magistrate, Calcutta, in this behalf. We feel that a pragmatic approach has not been made in this respect but, in any event, any consideration of the suitability of the place would not be necessary in view of the ultimate findings arrived at by us. 6. THE fourth dimension of the arguments relates to reasonable facilities and amenities. The learned Standing Counsel submitted that not only reasonable facilities are being given, even by allowing food packets from outside but that any complaint that may be made in this behalf would be attended to without delay. In any event, he submitted that absence of some amenities, even if true, cannot necessarily by themselves constitute a ground for bail. Mr. Gupta, however, assured that any prayer made in this behalf would be speedily attended to and the accused, who are in Division I, should not suffer for the same. We, therefore, need not enter into this point any further. We will now take up for consideration the fifth and last dimension of the contentions relating to the individual accused persons. As to the case of Anthony Allen Fletcher alias tony, it is to be noted that an application for bail moved on his behalf was ultimately rejected by this Court on the 6th December, 1973. The judgment delivered therein has since been reported in 78 C. W. N. 313 and as a matter of fact, one of the grounds-, raised on behalf of the prosecution in the court below is based on the same and has, in fact, been mentioned as such in the body of the judgment. At page 319 of the report, it was observed by the division Bench that "we are, therefore, unable to agree with Mr. At page 319 of the report, it was observed by the division Bench that "we are, therefore, unable to agree with Mr. Dutt that the materials so far collected do not make out a prima facie case". These findings were arrived at on the basis of the materials available on the date and it has not been averred by either side that there are other materials in addition thereto, changing the complexion of things. In any event, it is passing strange that the learned Chief Presidency Magistrate, Calcutta inspite of being pointed out, overlooked the observations of the High Court made in this behalf and proceeded to consider the matter on hypothesis and assumptions, not warranted by the legal materials on the record. It is unfortunate indeed. As was observed by the Supreme Court in the case of Mohaoleo Lal Kanoria v. "a. G. West Bengal, reported in 1960 (3) S.C.R. page 578 at, p. 589 that "judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing it is the quality of certainty". In view of the earlier findings referred to above and in view of the absence of any fresh materials, on which any other view can be taken, we hold on a consideration of the submissions made that there are no reasons to allow the prayer for bail at this stage. As to the case of Richard Winn Harcos alias Dick accused opposite-party No. 1, Mr. Amal kumar Dutt argued that his case has not been considered or decided by the high Court earlier and the contention by the learned Standing Counsel that he is the brain of the conspiracy is ruled out by the earlier averments made wherein there was no such allegation about Harcos. It is not possible for us to ascertain the degree of implication of the different accused at this stage and we are concerned only with the overall allegations made against the accused persons. So far as Harcos is concerned, he was arrested on the spot, in his diving suit and it has been submitted that the absconding accused bela Harcos alias Bill is his elder brother. So far as Harcos is concerned, he was arrested on the spot, in his diving suit and it has been submitted that the absconding accused bela Harcos alias Bill is his elder brother. In any event, in view of the facts and circumstances of the care, and the materials available, we are not in a position to hold at; this stage that there are reasonable grounds for believing that he is not "guilty of any offence punishable with death or in presentment for life or imprisonment for a term of seven years or more", and accordingly we are unable to allow the prayer for bail made on his behalf. The learned Standing Counsel submitted that the question of imposition of conditions and the nature of custody are secondary questions, being ancillary to the primary one as to whether bail should be granted. If on the materials adduced, this Court is not inclined to allow the prayer for bail there is no point in considering whether the Salvation Army would be the pro per custodian or not. 7. THE learned Standing Counsel further urged that the stage of investigation is over and a complaint has been filed on the 14th March 1974 upon sanction granted by the Central Government and that cognizance was taken on the 21st March 1974. In the objection filed on the 27th February, 1974 it was, in fact, stated on behalf of the prosecution that the complaint is in pending. The learned Chief Presidency magistrate, although he referred in his order to this contention on behalf of the prosecution that such a complaint was going to be filed on the next day, has not ultimately considered the in pact thereof on the case, before corning to the ultimate conclusions. We find no such consideration on a reference to the order impugned. 8. ONE further submission was pressed on the ground of justice, by mr. Amal Kumar Dutt, appearing on behalf of the accused opposite-party no. 1, viz. that in a case of this description, occupying quite a broad canvas, the difficulties of the accused in instructing their learned lawyers have also to be taken into view in deciding the: prayer for bail. Mr. Dutt imprinted that adequate instructions are necessary for a proper defence, which is not, however, possible if the accused persons be in prison. that in a case of this description, occupying quite a broad canvas, the difficulties of the accused in instructing their learned lawyers have also to be taken into view in deciding the: prayer for bail. Mr. Dutt imprinted that adequate instructions are necessary for a proper defence, which is not, however, possible if the accused persons be in prison. The learned Standing counsel submitted that the right of the accused to have proper opportunities for defence, within the bounds of the statute, cannot be denied and that suck opportunities are being given and will be given to the learned defence counsel including facilities for having inter views. True it is that all may not be on a par with the position if the accused be on bail, but on ultimate analysis it has to be held that facilities for defence alone cannot constitute an, additional ground for granting bail beyond the bounds of the statute and the imprimatur of judicial decisions of this behalf. Some handicap cannot be entirely ruled out, but the law relating to bail is the dovetailing of two conflicting equities and on ultimate analyst, we hold that the order passed by the learned Chief Presidency Magistrate for bail cannot, be sustained on this ancillary ground also as raised by Mr. Dutt as to the lack of facilities for defence if any, it will be considered by the court on merits, whenever raised. Before we part with the case, we must make it quite clear that we have made no observations either on the merits of the case or on the adequacy of the facilities, which will be considered in due course by the Court below. 9. IN the result, we make the Rule absolute; and we set aside the order dated the 4th March, 1974, passed by shri R. K. Sharma, Chief Presidency magistrate, Calcutta, granting bail to the accused opposite-parties in S. P. P. S sb Case No. 93 dated 26.4.73, under section 120b/437/451/511, Indian Pens. Code and sections 3 and 9 of the Official secrets Act and Rule 111-4 (11), Po": bye Laws. The record, which has been sender this Court in a sealed cover, shall go down, expeditiously.