- (1.) Special leave granted. Heard counsel on both sides. The facts leading to this appeal are as under On May 30, 1988, the respondent. a retired Naval Officer of the rank of Captain was apprehended at the Bombay International Airport (Sahar Airport) when he was about to take the Air-India Flight from Bombay to New York. On search of his luggage certain highly sensitive documents, marked secret/ confidential were found. A complaint was lodged against him for the breach of the provisions of the Official Secrets Act, 1923 and the Atomic Energy Act, 1962. Soon after his arrest he filed all application dated 22nd September, 1988 for bail. That application "as rejected by the High Court on 29th September, 1988. Thereafter, he filed a writ petition challenging the validity of Sections 3 and 5 of the Official Secrets Act, 1923 but that writ petition was dismissed by a Division Bench of the Bombay High Court on 8th December, 1988. In the meantime, he had preferred an application dated 21st November, 1988 for transfer of his case to another learned Judge and for grant of bail. While granting the prayer for transfer the Division Bench refused to enlarge the respondent oil bail by its order dated 19th December, 1988. Soon thereafter on 18th January, 1989 the respondent filed the third application for bail which too was rejected by Suresh. J. Having thus failed to secure enlargement on bail the respondent approached the learned Sessions Judge, Bombay for a direction to the jail authorities that he be produced before the Head of the Orthopaedic Department of J. J. Hospital as he had some spinal pain. The respondent also moved a separate application for being admitted to the Naval Hospital. The learned Sessions Judge acceded to his request and got him examined by Dr. Dongaonkar who submitted his report on 3rd February, 1989. On 10th February 1989. the respondent moved another application complaining of violation of Court's order and for enlargement on bail. This was followed by yet another application for bail dated 16th February, 1989 and in the alternative for a direction to admit him to a suitable hospital where he may be served meals cooked at his home. On the said application certain directions were given and the respondent was shifted to the general ward of G.T. Hospital, Bombay. The Trial Court framed charges against the respondent on 27th February, 1989. On 24th April, 1989, the respondent filed yet another application for grant of bail on medical grounds and in the alternative for being admitted to a hospital or any other place where he can conveniently receive instructions in yogic exercises. All his pending applications made for bail etc. were rejected by Puranik, J. by a common order dated 6th June, 1989, except Criminal Application No. 995 of 1989 preferred in April. 1989 for enlargement on bail on medical grounds. Possibly the fact that he had preferred this application was not brought to the notice of Puranik, J. Two days after the rejection of the group of bail applications by Puranik, J., application No. 995 of 1989 was disposed of by Suresh, J. who directed that he be enlarged on bail for a period of two months on his furnishing security in the sum of Rs. 10,000/- with one surety on the terms and conditions catalogued at (a) to (g) of the order. The learned Judge felt that by permitting him to be kept in virtual house arrest the State's grievance that he meets visitors including mediamen and gives interviews at the G.T. Hospital open ward will not survive. He was also of the view that having regard to his spinal disorder it was necessary that he had proper facilities for yogic exercises under expert guidance. It is this order of the learned Judge that is assailed before us by the State of Maharashtra.
(2.) When this matter came up for admission before Shetty, J., during vacation, the learned judge, after taking note of the fact that respondent was suffering from discprolapse for which he was treated by Dr. Dongaonkar and had shown considerable improvement and after evaluating the opinion of Dr. Khadilkar who had certified that the respondent was fit to attend court, observed as under: "Having regard to the nature of the offences charged, the sickness or disability complained of the nature of the treatment required, the certificates given by the Doctors, I am of the the opinion that the bail order made by the High Court appears to be a bit out of the ordinary." The learned vacation judge then directed notice to issue and stayed the operation of the High Court's judgment of 8th June, 1989. While doing so he observed that the respondent should be given necessary treatment of Yogic exercises in the Jail. Therefore, since the passing of this order on 15th June, 1989, the operation of the High Court's order enlarging the respondent on bail and placing him in virtual house arrest on the terms and conditions set out in the court's order, is stayed.
(3.) The learned counsel for the State of Maharashtra contended that the learned judge in the High Court while passing the impugned order of 8th June, 1989 ought to have realised that only two days before his colleague Puranik, J. had rejected all the pending bail applications (except Criminal Application No. 995/89) preferred at intervals by the respondent. In Criminal Application No. 375/89 one of the prayers made in paragraph,7(e) was as under: "That the applicant may pending his illness be ordered and directed to be placed under house arrest and/or be released on bail on such terms and conditions as may be fit,.;