JUDGMENT H. Suresh, J. - This is an application for bail in a case filed against the petitioner under section 3(1)(c) read with sections 9, 6(2)(a) and 6(2) (b) of the Official Secrets Act, 1923 and also under section 24(1)(d) read with sections 18(2) and 24(2)(d) read with section 19(b) of the Atomic Energy Act, 1962. The petitioner had made an application earlier which was rejected by this Court on September 19, 1988. While rejecting the said petition, the learned Judge observed that he was more than convinced that it would not be in the interest of national security and public safety to release the applicant-accused on bail. 2. In between the petitioner had filed a Criminal Writ Petition bearing No. 1224 of 1988 chellenging the vires of sections 3, 4, 5, 6, 9 and 14 of the Official Secrets Act. 1923 being violative of Articles 14, 19(1)(a), (g), 20(1) and 21 of the Constitution of India. This petition was rejected by the Division Bench of this Court by its order dated December 9, 1988. 3. In the said petition, one of the contentions of the petitioner was that the ingredients of section 5 of the Act are substantially akin to those of section 3 of the Act, and it provides for a different punishment which is also violative of Article 14 of the Constitution of India. The Division Bench negatived this contention and observed that the area and the field covered by section 3 and section 5 are distinct and separate. The nature of offences contemplated by these two sections are also distinct and separate. As to whether in a given set of facts the offence is covered under section 3 or section 5, must ultimately depend upon the facts and circumstances of each case, and no general rule can be laid down. 4. The petitioner has filed the present petition mainly on the ground that the charge sheet, including all the statements recorded and filed in the Court, would show that the offence would fall under section 5 of the Act and not under section 3 of the Act. If the offence falls under section 5 of the Act the petitioner becomes entitled to bail. If the offence falls under section 5 of the Act the petitioner becomes entitled to bail. On the other hand, if the offence can be said to be within the scope of section 3 of the Act and particularly having regard to the allegation that it relates to Naval, Military or Air force affairs the Government or in relation to any secret official code, the offence becomes a serious one and no bail can be granted. 5. Opposing this application, Mr. Handa, pointed out that since the rejection of the application for bail by the learned Judge by his order dated September 29, 1988, there is no change in circumstances and, therefore, it is not necessary that the Court should entertain this application at all. It appears that the learned Judge had directed at that time that the case should be assigned to a particular Judge and that Judge should be directed to dispose of the case as early as possible. In this connection, Mr. Pradhan submits that in spite of this direction, there is no reasonable hope that the case will be taken up at an early date. He also submitted that there is no possibility of the case coming to an early date and therefore, he submitted that the petitioner would have to remain in custody for an indefinite period and therefore, it is necessary that the petitioner be allowed to go on bail. 6. In the petition various grounds are set out, particularly in para 12, as to why the petitioner should be granted bail and how the prosecution would not suffer. I am told that these facts were before the learned Judge, when he considered the application for bail and rejected the same. Therefore, in my view, there cannot be any ground for the purpose of reviewing the said order as it is not possible to do so in law. 7. This takes me to the main contention of Mr. Pradhan. According to him if one analyses the charge sheet and the statements, the offence clearly falls within the scope of section 5 and not under section 3 of the Act. 8. Section 3(1)(c) is as follows: "3(1). If any person for any purpose prejudicial to the safety or interests of the State; (a) ... (b) ... Pradhan. According to him if one analyses the charge sheet and the statements, the offence clearly falls within the scope of section 5 and not under section 3 of the Act. 8. Section 3(1)(c) is as follows: "3(1). If any person for any purpose prejudicial to the safety or interests of the State; (a) ... (b) ... (c) (b) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan model article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy [or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States] ; he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years." The relevant portion of section 5 is as follows: "5(1). If any person having in his possession or control any secret official code or pass word or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, for which is likely to assists, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in conteravention of this Act, or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under Government, or as a person who holds or held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an office or contract :- (a) ... (b) ... (c) retains article, the sketch, plan, model. note or document in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or (d) fails to take reasonable care of, or so conducts himself as to endanger the safety of. the sketch, plan, model, article. note, document, secret official code or pass word or information; he shall be guilty of an offence under this section. (2) ... (3) ... (4) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.]" 9. Thus, if one analyses these two sections, it comes to this: These are the ingredients of section 3(1)(c). (a) Firstly, the purpose should be prejudicial to the safety or the interests of the State. (b) Secondly, the accused must obtain or collect or record or publish or communicate to any other person any secret official code or pass word or any sketch, plan, model, article or note or other document or information. (a) Firstly, the purpose should be prejudicial to the safety or the interests of the State. (b) Secondly, the accused must obtain or collect or record or publish or communicate to any other person any secret official code or pass word or any sketch, plan, model, article or note or other document or information. (c) Thirdly, these documents or information should be (i) calculated to be or might be or intended to be, directly or indirectly, useful to an enemy, (ii) or, they must relate to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the state or friendly relations with foreign States. (d) Fourthly, if the offence relates to any work of defence, arsenal, naval, military or air force establishment etc. or in relation to the naval, military or air force affairs of Government or in relation to any secret official code, the punishment shall be fourteen years and in other cases to three years. 10. Sub-section 2 of section 3 provides for a presumption, Even if the prosecution fails to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State. In that event, the burden shifts on him. Similarly, if any sketch, plan, model, article, note, document or information etc. or any secret official code or pass word is made, obtained, collected, recorded, published or communicated, it shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State. 11. Similarly, section 4 of the Act is again the rule of evidence. If the prosecution can show that the accused has been in communication with, or attempted to communicate with a foreign agent, whether within or without India, the said fact shall be relevant for the purpose of proving that he has, for a purpose prejudicial to the safety or interests of the State, obtained or attempted to obtain information which is calculated to be or might be, or is intended to be, directly or indirectly, useful to an enemy. There is a further presumption under section 4 of the Act that a person may be presumed to have been in communication with a foreign agent if he has with him the name or address of or any other information regarding a foreign agent that has been found in his possession, or has been obtained by him from any other person. The definition of "foreign agent" is an inclusive definition and it includes any person who is or has been or in respect of whom it appears that there are reasonable grounds for suspecting him of being or having been employed by it foreign power, either directly or indirectly, for the purpose of committing an act, either within or without India prejudicial to the State or who has or is reasonably suspected of having, either within or without India, committed, or attempted to commit such an act in the interests of a foreign power. Similarly, if any address, in respect of which it appears that there are reasonable grounds for suspecting it of being an address used for the receipt of communications intended for a foreign agent again there shall be a presumption that he carried with him the address of a foreign agent for the purpose of giving or receiving communications from a foreign agent. 12. On the other hand, the analysis of section 5 shows that if any person is already in possession of such documents which may be used or which are likely to assist directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in contravention of this Act and if he communicates or uses such information, it becomes an offence under section 5 of the Act. Under sub-section (c) of section 5 of the Act, if such a person having in his possession such documents retains the same, when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof, he shall be guilty of an offence under this section. 13. Mr. 13. Mr. Pradhan's main contention is that when the petitioner was the Captain of the Navy. he had been entrusted with the documents in question and he came into possession of those documents at that stage. He, therefore, submits that if the allegation is that he is found in possession of these documents, which the prosecution might consider as likely to assist, directly or indirectly, an enemy or which relate to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States and if he has retained the same when he has no right to retain or he has retained the same contrary to the directions given by the superior officer or by the department, that can at best become an offence under section 5 and' it cannot be said to be an offence under section 3(1)(c) of the Act. 14. If one has regard for the allegations as contained in the charge sheet, I am afraid, it is: not possible for me to say, at this stage, that the offence falls squarely under section 5 of the Act and not under section 3(1)(c) of the Act. In fact, it is not proper for me to go into every statement that is contained in the charge sheet and come to a definite finding that the charge can never fall under section 3(1)(c) but it can only fall under section 5 of the Act. That has to be done at the proper stage, particularly by the learned Sessions Judge when he has to consider the question of framing the charge against the petitioner. At the highest I can take a prima facie view of the matter, on the question as to how did the petitioner come into possession of these documents. Can it be said, right now that all the documents that were found with him were the documents which could be said to have been entrusted to him or the documents which have come in his possession in the ordinary course when he was holding the office of the Captain of Navy? Or can it be said that they were all collected by him as contemplated within the meaning of section 3(1)(c) of the Act? 15. Or can it be said that they were all collected by him as contemplated within the meaning of section 3(1)(c) of the Act? 15. As I said, this can only be done on a proper hearing when the learned Judge proceeds to frame the charges as against the petitioner. Any attempt on my part would be hit by the vice that is condemned and not 'approved of by the Supreme Court in the case of State v. Captain Jagjit Singh1. The relevant observations of the Supreme Court -are as follows: "The error in the order of the High Court is that it did not consider whether the offence for which the respondent was being prosecuted was a bailable one or otherwise. Even if the High Court thought that it would not be proper at that stage, where commitment proceedings were to take place, to express an opinion on the question whether the offence in this case fell under section 5 which is bailable or under section 3 which is not bailable, it should have proceeded to deal with the application on the assumption that the offence was under section 3 and therefore not bailable. The High Court, however, did not deal with the application for bail 'on this footing, for in the order it is said that the question whether the offence fell under section 3 or section 5' was arguable. It follows from this observation that the High Court thought it possible that the offence might fall under section 5. This, in our opinion, was the basic error into which the High Court fell in dealing with the application for bail before it, and it should have considered the matter even if it did not consider it proper at that stage to decide the question whether the offence was under section 3 or section 5, on the assumption that the case fell under section 3 of the Act. It should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations which arise when a Court is asked for bail in a non-bailable offence. It is true that under section 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is ganted in a non-bailable offence. This the High Court does not seem to have done, for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one." 16. In the view that I have taken and in view of the fact that there are no other circumstances, than what were considered earlier, it is not possible for me to grant this application made on behalf of the petitioner. 17. However, Mr. Handa, appearing for the prosecution, has stated that he is agree able to a time schedule for the purpose of proceeding with the trial. I think, having regard to the fact that both, the Division Bench as also the learned Single Judge, had directed that the case should be disposed of as early as possible, it is proper that I give certain directions in that behalf. In the result, I pass the following order; This petition stands rejected; I am told that the case is now fixed for hearing on January 30, 1989. I, therefore, direct that the learned Judge shall complete all the formalities relating to framing of charges, and frame charges if there is sufficient material for framing the charges, by February 24, 1989. Thereafter the learned Judge shall devote every week not less than three days for the purpose of the trial of this case till the case is completely tried and disposed of. With these directions this application stands disposed of. 1. AIR 1902 SC 253.