Supreme Court: In a criminal appeal filed by the National Investigation Agency (‘NIA’) against the Madras High Court order granting bail to members and cadres of Popular Front of India (‘PFI’), who were alleged to conspire for committing terrorist acts, raise funds for committing terrorist activities and recruit members for furthering their extremist ideology, the Division Bench of Bela M Trivedi* and Pankaj Mithal, JJ. has set aside the impugned order, opining that High Court has committed gross error in not considering the evidence in its right and proper perspective and in recording a perverse finding to the effect that there was no material to suggest the commission of any offence, which falls under Section 15 of UAPA, and that the prosecution had not produced any material about the involvement of any of the accused persons in any terrorist act or as a member of a terrorist gang or organization or training terrorism.
Background:
The Central Government in Ministry of Home Affairs, CTCR Division having received a credible information that the office bearers, members and cadres of PFI, an extremist Islamic organization have been spreading its extremist ideology across Tamil Nadu, by establishing State Headquarters in Chennai and also offices in various districts of Tamil Nadu and that through their frontal Organizations they conspire for committing terrorist acts, raise funds for committing terrorist activities and recruit members for furthering their extremist ideology, passed an order on 16-09-2022, in exercise of the powers conferred under Section 6(5) read with Section 8 of the National Investigation Agency Act, 2008 (‘NIA Act’), directing NIA to take up investigation of the said case.
In view of the said order, an FIR came to be registered against the respondents and other members and office bearers of PFI for the offences under Sections 120(b), 153(A), 153(AA) of the Penal Code, 1860 (‘IPC’) and Sections 13, 17, 18, 18(B), 38 and 39 of the Unlawful Activities (Prevention) Act, 1957 (‘UAPA’). The accused persons got arrested and later filed for bail. The special Court rejected their bail plea. Aggrieved, the accused persons filed appeals before the Madras High Court, granted bail to the accused persons.
Analysis and Decision:
The Court reiterated that the consideration applicable for cancellation of bail and consideration for challenging the order on the grant of bail on the ground of arbitrary exercise of discretion are different. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like tampering of evidence either during the investigation or during the trial, threatening of witness, accused likely to abscond and the trial getting delayed on that account etc. whereas in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration would be whether there was improper or arbitrary exercise of discretion in the grant of bail or the findings recorded were perverse.
The Court referred to the provisions of the UAPA.
After perusing the chargesheet and other material/documents produced against the accused persons, there are reasonable grounds for believing that accusations against them are prima facie true, as contemplated in the proviso to sub-section (5) of Section 43D of UAPA.
The Bench reiterated that the chargesheet need not contain detailed analysis of the evidence. The Court has to consider the bail application to assess the evidence presented by the investigating authority along with the report under Section 173 of the Code of Criminal Procedure, 1973 (‘CrPC’). in its entirety, to form its opinion as to whether there are reasonable grounds for believing the accusation against the accused is prima facie true or not.
The Court noted that in the present case, the chargesheet contains a narration of the organisational structure of PFI, the objective of the PFI, the activities of PFI and the identification of the physical education instructors and masters as identified by the protected witnesses / listed witnesses.
The Court noted that it is alleged in the chargesheet that, though the PFI was projecting itself as an organization fighting for the rights of minorities, Dalits and marginalized communities, it was pursuing a covert agenda to radicalize section of the society and to work towards undermining the concept of democracy and integrity of India.
The Court said that there is sufficient material in the form of statements of witnesses and other incriminating evidence in the form of digital devices, books, photographs etc. collected during the course of investigation and relied upon by NIA as recorded in the chargesheet, to form an opinion that there are reasonable grounds for believing that the accusations against the accused persons are prima facie true.
The Court opined that the High Court has committed gross error in not considering the material/evidence in its right and proper perspective and in recording a perverse finding to the effect that there was no material to suggest the commission of any offence, which falls under Section 15 of UAPA, and that the prosecution had not produced any material about the involvement of any of the accused persons in any terrorist act or as a member of a terrorist gang or organization or training terrorism.
The Court remarked that such perverse findings of the High Court deserve to be strongly deprecated more particularly when NIA has not alleged the offence under Section 15 of UAPA either in the FIR or in the chargesheet against the accused persons.
The Court clarified that if there is any material or evidence to show that the accused had conspired or attempted to commit a terrorist act or committed any act preparatory to the commission of a terrorist act, such material evidence would be sufficient to invoke Section 18.
The Court said that the High Court has fallen into a patent and manifest error by miserably failing to comprehend the correct import of Section 18 read with the definition of terrorist act as contemplated in Section 15 of UAPA.
The Court took note of the seriousness and gravity of the alleged offences, previous criminal history of the accused persons as mentioned in charge-sheet, the period of custody undergone by them, the severity of punishment prescribed for the alleged offences and prima facie material collected during investigation, and remarked that the High Court order cannot be sustained.
The Court remarked that National security is always of paramount importance and any act in aid to any terrorist act — violent or non-violent is liable to be restricted, thereby set aside the impugned order and directed the accused persons to surrender before the NIA. Further, the Bench directed the Special Court to proceed with the trial as expeditiously as possible and in accordance with law.
[Union of India v. Barakathullah, 2024 SCC OnLine SC 1019, decided on 22-05-2024]
*Judgment Authored by: Justice Bela M Trivedi
Know Thy Judge | Supreme Court of India: Justice Bela Madhurya Trivedi
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