Supreme Court: In an appeal challenging order passed by the Punjab and Haryana High Court on 24-04-2023 upholding the rejection of application under Section 439 of Criminal Procedure Code, 1973 for a matter involving offences under Sections 124-A, 153-A, 153-B, 120-B of the Penal Code, 1860 (‘IPC’), Sections 17, 18, 19 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) and Sections 25 and 54 of Arms Act, 1959, the Division Bench of M.M. Sundresh and Aravind Kumar*, JJ. refused to grant bail while explaining the rule against bail delineating provisions under UAPA as against general rule under CrPC.
Factual Background
On 19-10-2018, CIA Inspector received secret information of two persons hanging banners which read “Khalistan Jindabad” and “Khalistan Referendum 2020” at specific locations, who were accordingly apprehended on the spot and a case was registered. During investigation, entire module of banned terrorist organization ‘Sikhs for Justice’ got busted and other accused persons got arrested, including the appellant in the instant matter. A final investigation report against 11 accused persons was presented before the Trial Court.
The matter was transferred to the National Investigation Agency (‘NIA’) which proceeded with the investigation as per the directions from Ministry of Home Affairs and charges were accordingly framed by NIA Special Judge. Investigation revealed about accused persons having received funds from members of ‘Sikhs for Justice’ through illegal means such as ‘Hawala’, to be used for promoting separatist ideology of demanding a separate State for Sikhs – ‘Khalistan’, and carrying out terror activities and activities like procuring weapons to spread terror in India. NIA Investigation also disclosed involvement of an ISI handler for operations of this module.
The prima facie involvement of appellant was disclosed in the statement of one of the co-accused on 12-06-2020 while being in NIA custody. The Trial Court dismissed application under Section 439 stating ‘reasonable grounds to believe accusation against appellant to be true’, while the High Court rejected appeal against the same due to seriousness of nature of offence and for none of the protected witnesses being examined.
Court’s Analysis
The Court considered the bail provisions under Section 43-D(5) of UAPA Act and expressed that “source of the power to grant bail in respect of non-bailable offences punishable with death or life imprisonment emanates from Section 439 CrPC.” It further explained that Section 43-D(5) of UAPA Act modifies application of general provisions of bail w.r.t. offences punishable under Chapters IV and VI of the same.
While highlighting the embargo on Special Court’s power to release an accused on bail as per the proviso to Section 43-D(5) of UAPA, the Court perused the language of the provision which was not traceable in any other statute. The Court explained that the conventional idea in bail jurisprudence that ‘bail is the rule, jail is the exception’ — unless circumstances justify was restrictive in scope for UAPA cases. It further referred to NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 and elaborated that “courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The ‘justifications’ must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, ‘prima facie’ standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinizing the justifications [materials on record]. This standard can be contrasted with the standard of ‘strong suspicion’, which is used by Courts while hearing applications for ‘discharge’.”
The Court explained that rejection of bail was the rule in such matters, if the public prosecutor, and the Court after perusal of final report or case diary concluded that there were reasonable grounds for believing the accusations to be prima facie true, and if the test for rejection of bail was not satisfied that the Courts proceed through ‘tripod test’ – flight risk, influencing witnesses, tampering with evidence as clarified by Section 43D (6). The Court listed the pointers for inquiry to be undertaken by the bail court while deciding UAPA bail applications through a twin-prong test:
1) Whether the test for rejection of the bail is satisfied?
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Examine if the alleged ‘accusations’ prima facie make out an offence under Chapter IV or VI of the UAPA;
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Such examination should be limited to case diary and final report submitted under Section 173 CrPC;
Considering various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., Courts must ask themselves:
2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)?
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Whether the accused is a flight risk?
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Whether there is apprehension of the accused tampering with the evidence?
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Whether there is apprehension of accused influencing witnesses?
The Court explained that the question for entering second test would not arise if the first test was satisfied, and in case of being satisfied with the first test, it won’t automatically entitle the accused for grant of bail, and the accused would be required to show of having successfully passed the ‘tripod test’. The Court further referred to the guidelines laid in Watali case (supra) regarding rejection of bail for specific factors, which were relied upon in a catena of cases. It further cited the directions issued by Andhra Pradesh High Court in Devender Gupta v. National Investigating Agency, 2014 (2) ALD Cri. 251 which stroke a balance between mandate under Section 43D and the accused’s rights.
The Court proceeded with inquiry as per the first test, i.e., whether the allegations in the charge sheet and case diary disclosed commission of offence under Sections 17, 18 and 19 of UAPA. The Court perused the specific provisions and found that while the appellant’s mobile phone was not scrutinized, another co-accused’s scrutiny report and Call Detail Records (CDRs) reflected communication with the appellant multiple times.
On contention that terror funding chart did not include the appellant’s name, the Court explained that the terrorist gang included different members recruited for multiple roles, and the fact that of accused not receiving any funds or nothing incriminating being recovered from his mobile phone did not absolve him of his role in the instant matter. Rejecting application of Union of India v. K.A. Najeeb, (2021) 3 SCC 713 in the instant case, the Court explained that in the instant matter, trial was underway, and 22 witnesses were examined including the protected witnesses.
The Court said that the material on record indicated appellant’s involvement in furtherance of terrorist activities backed by members of banned organization involving exchange of large quantum of money through different channels which required to be deciphered and cautioned that the appellant’s release may result in influencing key witnesses, hampering the process of justice. The Court observed that “mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail.”
The Court concluded that the material on record prima facie indicated towards complicity of appellant as part of conspiracy for knowingly facilitating the commission of preparatory act towards the commission of terrorist act under Section 18 of UAPA Act. The Court thereby rejected the bail application.
[Gurwinder Singh v. State of Punjab, 2024 SCC OnLine SC 109, decided on 7-02-2024]
Judgment authored by: Justice Aravind Kumar
Advocates who appeared in this case :
For Petitioners: Advocate on Record Satya Mitra
For Respondents: Deputy Advocate General Vivek Jain, Advocate on Record Karan Sharma, Solicitor General Tushar Mehta, Additional Solicitor General Suryaprakash V Raju, Advocate Kanu Agarwal, Advocate Annam Venkatesh, Advocate Mayank Pandey, Advocate on Record Arvind Kumar Sharma
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