A court in Haryana’s Hisar district has dismissed the bail plea of YouTuber Jyoti Malhotra, who was arrested in May on the suspicion of espionage, and said there is a reasonable apprehension that her release on bail may impede the probe.
Hisar police had arrested Malhotra (33), who ran the YouTube channel ‘Travel with JO’, on May 16 under provisions of the Official Secrets Act and the Bharatiya Nyaya Sanhita (BNS). Malhotra at present is in judicial custody.
In its detailed order, 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 SMAC (multi-agency centre) 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,” said the October 23 court order.
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 said while it is true that such matters ultimately must be tested at trial and the accused has the right to contest the allegations.
It also said the court, when considering the bail, must view the totality of the evidence available at the stage.
“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,” it said.
Noting that the seriousness of the offence and the gravity of allegations must weigh heavily in the bail decision, the court said 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.
“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,” it said.
On the argument that the petitioner is a woman, the sole bread-winner and a person of apparently clean antecedents, the judge said courts routinely recognise social and familial vulnerabilities when deciding bail.
“However, these considerations cannot, in cases which touch upon national security and which prima facie disclose a compelling chain of incriminating material, displace the larger public interest in ensuring a full and untrammelled trial and the prevention of any risk to the security of the State,” the court observed.
Police sources had previously 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.
Police had in May claimed that Pakistani intelligence operatives were developing Malhotra as an “asset”.
