- (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. 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.
(3.) 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 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.;