Orissa High Court grants bail to man accused of leaking missile data to foreigners

The Orissa High Court on July 1 granted bail to a man accused of leaking classified information relating to missile testing at the Integrated Test Range (ITR), Balasore, to foreign nationals [Basanta Kumar Behera vs. State of Odisha].

Justice G Satapathy granted bail after noting that the accused had been in jail as an undertrial prisoner for nearly four years, while the trial was yet to conclude.

"If the State is unable to provide speedy trial to the accused, it should not oppose the plea of bail of such accused on the ground that the crime committed by him is serious one, since Article 21 of the Constitution of India applies irrespective of the nature and gravity of the crime," the Court said.

The High Court added that no one can argue that the trial was not expedited only because the accused has not made an application for an early hearing.

"Neither the Court nor any one can be permitted to take the plea that since the accused did not demand for early hearing in the matter, he was not provided with speedy trial. Under no circumstances a person accused of an offence can be denied the right to a speedy trial only because he had not complained of infringement of his right to speedy trial nor has insisted upon such speedy trial,” it said.

The Court also noted that the accused had been let out of jail twice on interim bail, and that he had not misused his liberty while out on bail.

The case concerned one Basanta Kumar Behera, who used to work as a contractual air-conditioning operator at ITR Balasore. He was arrested in September 2021 on allegations that he leaked confidential missile testing information to foreign nationals, which jeoparised India's safety and security.

According to the prosecution, he transmitted secret defence information relating to missile testing to foreign nationals through social media platforms in exchange for money.

He was booked under Sections 120-B (criminal conspiracy), 121 (abetting the waging of war against the Government of India), 121-A (conspiracy for offence under 121) and 34 (acts done with common intention) of the Indian Penal Code, read with Sections 3 (penalty for spying) , 4 (communications with foreign agents to be evidence of commission of certain offences) and 5 (wrongful communication, use, retention, or failure to protect official information) of the Official Secrets Act.

Behera approached the High Court for regular bail last year. His counsel argued that the investigating officer had failed to present any conclusive evidence directly linking him with the alleged leak of defence secrets.

The officer, who was a prosecution witness, allegedly admitted in cross-examination that the arrest was made solely on the basis of the FIR, and not any contemporaneous evidence of wrongdoing.

It was also argued that no forensic analysis of Behera's seized mobile phone had been presented, and that any claim of money having been received in exchange for information was unsupported by witness statements.

The Court noted that out of 28 prosecution witnesses, only 19 had been examined so far.

It emphasised that the presumption of innocence in favour of an accused person remains intact until the conclusion of the trial and that pre-trial imprisonment is not the same as punitive imprisonment.

“Although an accused is charged with an offence, but he is not a convict until conclusion of the trial, since the accused has valuable far-reaching rights under criminal jurisprudence to be presumed innocent, until proven guilty and this right cannot be brushed aside lightly, howsoever stringent the penal law may be,” the Court said.

It further relied on the decision of the Supreme Court in Union of India v. KA Najeeb (2021), to reiterate that constitutional courts are empowered to grant bail even in serious cases, where delays in trial defeats the right to liberty under Article 21 of the Constitution.

The Court proceeded to order Behera's release on bail, upon his furnishing a bond of ₹5 lakhs with two solvent sureties of like amount, and subject to several conditions including regular court attendance, restricted travel, and fortnightly reporting at the local police station.

Behera was represented by advocate A Mishra.

The State was represented by Additional Public Prosecutor P Satpathy.

[Read Order]