Prolonged Incarceration Without Trial Is Punishment Before Conviction: Rajasthan High Court Grants Bail in Official Secrets Act Case After 19 Months in Custody

“When the prosecution is not diligent in producing its witnesses, continued detention of the accused amounts to punishment before conviction… gravity of offence alone cannot justify indefinite incarceration” — Rajasthan High Court

In a significant judgment upholding the constitutional guarantee under Article 21 of the Constitution, the Rajasthan High Court (Jaipur Bench) granted bail to a man accused under the Official Secrets Act, 1923, noting that he had been kept in custody for over 19 months without meaningful progress in trial. The Court held that delays in prosecution, failure to produce witnesses, and the absence of an FSL report violated the petsitioner’s fundamental right to speedy trial, rendering continued custody unjustified and unconstitutional.

Justice Anil Kumar Upman stressed that while national security concerns are serious, prolonged incarceration without trial constitutes pre-trial punishment, which no civilised legal system can countenance.

“Right to Liberty Is Not a Casualty of Administrative Delay” — Trial Stalled Due to Non-Filing of FSL Report, Non-Appearance of Witnesses

The petitioner Anandraj, arrested on 14 March 2024, was booked under Sections 3 and 9 of the Official Secrets Act, 1923, for allegedly transmitting sensitive data via WhatsApp to a foreign contact. The prosecution failed to complete pre-charge evidence despite multiple opportunities and eleven hearings. The Forensic Science Laboratory (FSL) report on the petitioner’s mobile device remained pending, leading to repeated adjournments.

From a total of 18 listed witnesses, only 4 had been examined in 19 months. One witness’s deposition remained incomplete for lack of the FSL report. The Court noted that despite the trial court issuing both bailable and non-bailable warrants, the prosecution consistently failed to produce its witnesses.

In this context, the Court ruled:

“When the prosecution fails to proceed with due promptness, the continued detention of the accused amounts to punishment before conviction, which is unreasonable and without justification… the prosecution cannot take shelter under the plea that the charges are serious in nature.”

“Applicability of Section 3 of Official Secrets Act Requires Trial — Not Prima Facie Made Out”

An important legal aspect addressed by the Court was whether Section 3 (which deals with spying and acts prejudicial to the safety or interest of the State) was applicable, or whether Section 5 (unauthorised possession or communication of official documents) was more appropriate.

The Court noted that no conclusive evidence of mens rea (intent to prejudice national security) had been brought on record. The allegations were based only on suspicion, and no incriminating material had been recovered. The FSL report, crucial to establishing the alleged offence, was still awaited.

Justice Upman clarified:

“Allegations do not prima facie disclose that the petitioner acted with intent prejudicial to the safety of the State — at best, Section 5 of the Act could apply… Whether Section 3 is attracted is a matter for trial.”

He distinguished the State v. Captain Jagjit Singh, AIR 1962 SC 253, cited by the State, holding that the present case involves a Magistrate-triable offence, not one before a Sessions Court, and maximum punishment would not exceed 7 years in any event.

“Constitutional Courts Must Step In Where Fundamental Rights Are Eroded by Executive Inaction”

The Court strongly invoked the principles laid down in Union of India v. K.A. Najeeb (2021) 3 SCC 713, which held that constitutional courts are empowered to grant bail even in cases involving serious charges, if the right to speedy trial is violated. The judgment referred to several precedents, including:

• Masroor v. State of U.P. (2009) 14 SCC 286

• Neeru Yadav v. State of U.P. (2014) 16 SCC 508

• Mehmood Mohammed Sayeed v. State of Maharashtra (2001) 7 SRJ 336

• Subhelal @ Sushil Sahu v. State of Chhattisgarh (2025) 5 SCC 140

Quoting from these decisions, the Court reiterated that “personal liberty is a priceless treasure”, and that courts are duty-bound to guard it unless there are concrete risks of tampering with evidence, absconding, or causing prejudice to the trial.

“Section 480(6) of BNSS Must Be Interpreted Liberally in Cases of Delay Not Attributable to the Accused”

Although the petitioner had earlier withdrawn his first bail plea to seek remedy under Section 480(6) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) (corresponding to Section 437(6) CrPC), he could not approach the Magistrate again because charges were not yet framed — a consequence of prosecution delay.

The Court, relying on Subhelal (2025) 5 SCC 140, held that “liberal construction must apply” to such provisions, especially where the accused is not at fault, the trial is stagnated, and the maximum punishment is not of excessive length.

Constitutional Safeguards Against Pre-Trial Detention Reaffirmed

This ruling underscores that bail is not to be denied solely on the gravity of allegations, especially when prosecution inaction causes unreasonable delay. By granting bail after nearly 20 months in custody, the Rajasthan High Court has reaffirmed the primacy of Article 21, that the right to life and personal liberty cannot be suspended by administrative lethargy or indefinite proceedings.

Justice Anil Kumar Upman’s decision adds to a growing judicial consensus that serious charges cannot be a shield for trial stagnation, and that constitutional courts must act as guardians of individual freedom when statutory mechanisms fail.

Date of Decision: 28 October 2025