State Cannot Justify Espionage FIR Based Solely On Custodial Disclosure Without Corroborative Evidence: Punjab & Haryana High Court Grants Bail

Punjab and Haryana High Court, in a significant ruling, granted regular bail to a man accused of espionage, holding that continued detention is unjustified when the State lacks corroborative evidence and mandatory prosecution sanction. A single-judge bench of Justice Vinod S. Bhardwaj observed that the prosecution failed to provide "any specific material" to prove that sensitive Indian Army movements were ever transmitted to foreign operatives, rendering the case fundamentally weak at the bail stage.

The petitioner, Davender Singh, was initially arrested in an Arms Act case for uploading photographs with weapons on Facebook in 2018. Upon being granted bail in that matter, the police immediately registered the present FIR under the Bharatiya Nyaya Sanhita (BNS) and the Official Secrets Act, 1923. The new charges were based solely on a custodial disclosure statement wherein the petitioner allegedly confessed to sharing sensitive Indian Army information with Pakistani intelligence operatives he met during a religious pilgrimage to Kartarpur Sahib.

The primary question before the court was whether an accused can be denied bail in an espionage case based purely on a custodial disclosure statement without any independent corroborative recovery. The court was also called upon to determine the effect of the prolonged delay by the Union Government in granting mandatory prosecution sanction under the Official Secrets Act on the accused's right to liberty.

Registration Of Second FIR Questioned

The High Court expressed strong reservations about the timing and basis of the second FIR against the petitioner. It noted that the solitary piece of evidence, which was a video recording in the petitioner's mobile phone, was already in police custody under the previous Arms Act FIR. Questioning the necessity of a fresh case, the court demanded to know "what was the occasion to register the second FIR" when no new recovery was effected and the device was already seized.

Lack Of Corroborative Evidence

Turning its attention to the merits of the espionage allegations, the bench subjected the State's narrative to strict scrutiny. The prosecution alleged that the petitioner communicated with one "Shah Ji" in Pakistan and shared videos of Army vehicles between April and May 2025. However, the court highlighted that the State could not substantiate these claims, observing that the "Learned State Counsel is also not in a position to furnish any such particulars, nor could he clarify whether the said video pertained to the period between the incident at Pahalgam and/or the commencement of 'Operation Sindoor'."

Failure To Establish Motive Or Foreign Intelligence Link

The court further dismantled the prosecution's theory regarding the identity of the foreign contacts and the petitioner's underlying motive. When the bench inquired whether the petitioner received any pecuniary gain or why he would share such sensitive data, the State vaguely attributed it to an ancestral affinity towards Pakistan. Rejecting this premise, the bench noted that the State was completely unable to establish a motive or prove that "Shah Ji" was indeed an intelligence operative.

"When a specific query was put to learned State counsel as to the nature of the information allegedly shared by the petitioner with any person of dubious antecedents or involved in suspicious activities, he was not in a position to point out any specific material or evidence on record in support thereof."

Absence Of Mandatory Prosecution Sanction

Addressing a crucial procedural safeguard, the High Court emphasized the statutory requirement under the Official Secrets Act, 1923, which mandates prior sanction from the Government of India before initiating proceedings. The court observed that the sanction proposal was sent in July 2025, but no approval had been granted even after nine months. Noting the consequence of this delay, Justice Bhardwaj highlighted that "till such time the prosecution sanction is obtained, the trial cannot commence against the petitioner."

Bail Granted On Totality Of Circumstances

In arriving at its final decision, the court synthesized the evidentiary vacuum and procedural lapses. The bench ruled that keeping the petitioner incarcerated was unwarranted given the "failure to submit any evidence based response to the specific queries put forth by this Court to the State Counsel." Consequently, the court held that the prolonged custody, clean antecedents barring the previous FIR, and the pending prosecution sanction collectively justified the grant of regular bail.

The High Court allowed the petition and directed the release of the petitioner on regular bail upon furnishing the requisite bonds to the satisfaction of the trial court. The ruling serves as a strict reminder to investigating agencies that serious charges of espionage and anti-national activities under the BNS and Official Secrets Act must be backed by credible, corroborative evidence rather than mere custodial confessions.

Date of Decision: 01 April 2026