CHANDIGARH: The bail plea of 33-year-old Jyoti Malhotra, a YouTuber who was arrested in May on suspicion of espionage, has been dismissed by a court at Hisar in Haryana, stating that there is a reasonable apprehension that her release on bail may impede the probe.
In a detailed order passed on October 23, the court of Additional Sessions Judge Dr Parminder Kaur dismissed the regular bail plea.
"There exists on the record a prima facie case of considerable gravity under the Official Secrets Act and the BNS provisions relied upon. The forensic material recovered from the accused's electronic device, the Subsidiary Multi-Agency Centre (SMAC) intelligence inputs and the circumstantial matrix of contacts with a foreign official and movements in sensitive areas collectively create a reasonable apprehension that release on bail may impede the investigation, facilitate tampering with digital evidence, or otherwise be contrary to the public interest and national security considerations," it stated.
The Court observed that public interest and national security considerations assume special significance where the allegations, if established, would impair the sovereign interest of the State.
"Courts must be mindful that bail is not to be granted if it would be a danger to public order, security or if it would result in the accused being in a position to frustrate the process,’’ it said.
On the argument of the petitioner's counsel that the intelligence inputs relied upon are untested and that the prosecution failed to produce direct evidence of communication or transmission of sensitive material to foreign agents, the court stated while it is true that such matters ultimately must be tested at trial and the accused has the right to contest the allegations, the bail must be viewed in the totality of the evidence available at the stage.
The order stated,"Here, the combination of (a) intelligence linkage shown by SMAC inputs, (b) the asserted communications connecting the petitioner to the foreign national, (c) forensic reconstruction of deleted material showing footage of sensitive sites and (d) the factual matrix of the petitioner's visits and movements while abroad -- taken together -- satisfy the threshold of a prima facie case of sufficient gravity to refuse bail."
The court further added that the Official Secrets Act and the provisions of the BNS invoked by the prosecution are not ordinary penal enactments as they protect matters of state security and public safety.
"The possibility that sensitive visual material relating to strategic infrastructure may have been collected, retained and shown to foreign personnel is a matter which, even at a prima facie level, calls for stringent judicial caution before permitting the accused's release," read the order.
It added, "The presence of a foreign national (an official of the Pakistan High Commission), the circumstances of the petitioner's visits to Pakistan, the alleged facilitation of travel beyond permitted areas and the asserted VIP treatment, when read together with the forensic retrieval of videographic material, create a prima facie case that the accused may have had communications and interactions with persons whose identity and purpose are material to the investigation.’’
Earlier police sources had said Malhotra was in touch with Ehsan-ur-Rahim alias Danish, a staffer at the Pakistani High Commission, since November 2023.
India expelled Danish on May 13 for allegedly indulging in espionage.
On May 26, Hisar police had arrested Malhotra, who ran the YouTube channel 'Travel with JO' under provisions of the Official Secrets Act and the Bharatiya Nyaya Sanhita (BNS). She is presently in judicial custody.
