Case BriefsHigh Courts

Punjab and Haryana High Court: Anupinder Singh Grewal, J., granted bail to the woman who was in custody along with her barely two years old infant in connection with alleged offence committed under UAPA. The main allegation against the petitioner was with regard to a Facebook post supporting banned organization ‘Sikhs for Justice 2020 Referendum’.

The petitioner approached the Court for seeking regular bail in connection with offences under Sections 307, 438, 427, 148, 149 of Penal Code, 1860 (Sections 121, 121-A, 122, 124-A, 115, 120-B IPC) and Sections 11, 12, 13, 17, 18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) including offences under Sections 25, 54 and 59 of the Arms Act and Section 66-F of the Information Technology Act, 2000.

The contention of the petitioner was that she was not named in the FIR in connection with the main incriminating even, wherein a wine shop had been set on fire and the only allegation against her, as transpired from the statement of a co-accused, that she had posted on her Facebook account about ‘Sikhs for Justice 2020 Referendum’. The petitioner further submitted that besides that social media post there was no allegation that she had participated in any unlawful activity. The petitioner admitted ‘Sikhs for Justice Organisation’ had been banned by the Government of India in July, 2019, however, she contended that the alleged post was made on 31-05-2018, when the organisation was not yet banned.

Considering that the allegations against the petitioner, that she had posted about ‘referendum-2020’ on her Facebook account and there was stated to be an audio recording of the petitioner being in conversation with co-accused, the Bench opined that the authenticity and evidentiary value of the audio would be determined at the trial and there was no reference to any act of violence (overt) which was actually committed by any of the accused in the instant case or that any individual had been harmed.

The petitioner was a lady with three minor children, one of whom was about one year and nine months old and is lodged with her in jail. Noticeably, the petitioner had been in custody for over two years and three months and the trial had come to a standstill as a Coordinate Bench of the Punjab and Haryana High Court had stayed further proceedings and there was no likelihood that the trial will be concluded soon. Further, the petitioner did not has any criminal antecedents and the co-accused Harnam Singh and Nirmal Singh had been granted bail as well.

Following the law as laid down in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, wherein the Supreme Court had held that Article 21 of the Constitution provides right to speedy trial therefore long period of incarceration would be a good ground to grant bail to an under-trial for an offence punishable under the UAPA and the embargo under Section 43-D of the UAPA (whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail )would not negate the powers of the Court to give effect to Article 21 of the Constitution, the Bench allowed the petition and the petitioner was ordered to be released on regular bail.

However, the petitioner was directed to furnish her mobile number to the SHO concerned, to keep the location of her phone on and to appear before the SHO on the first Monday of every month till conclusion of the trial. [Deep Kaur v. State of Punjab, CRM-M-41771 of 2020, decided on 21-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Simranjit Singh, Advocate and Arnav Sood, Advocate

For the State: Amarjit Kaur Khurana, DAG, Punjab

Experts CornerKapil Madan


Introduction


Terrorism is a global phenomenon, with varying forms of manifestation. It is a rampant crime that many organisations and unfortunately some countries thrive on. Hence, protection of one’s country and its citizen is an obligation of the Government and they do so through counter-terrorism laws.

 

The Unlawful Activities Prevention Act, 1967 (hereinafter referred to as “UAPA”) is one such legislation. Unlawful Activities (Prevention) Amendment Act was enacted in 1967, it gained particular prominence in the year 2008-2012 after the 26/11 Mumbai terror attacks. It is an upgraded version of the TADA (Terrorist and Disruptive Activities Prevention Act, 1987) and POTA (Prevention of Terrorism Act, 2002) which lapsed and was repealed in 1995 and 2004 respectively. Due to heinous nature of terrorism, UAPA provides special procedures to decide cases with respect to terrorism. The National Investigation Agency is the central law enforcement agency tasked to deal with instances of terrorism in India.

 

It defines terrorist activities under Section 15 and offences and punishments related to terrorism and in Chapter IV, Sections 15-23 and terrorist organisations are dealt within Chapter VI, Sections 35-40. This Act grants the Centre power to declare any act they deem to be unlawful to be declared so. An unlawful activity is an act by an individual or a group that incites feelings of disaffection, and disrupts, disclaims, questions, is intended to disrupt the territorial integrity and sovereignty of the country.[1]


What is unlawful activities?


Unlawful activities in literal terms mean any activity contrary to the lawful procedure established by the legislature. According to Section 2(1)(o) of UAPA Act, an “unlawful activity”, means any action taken by individuals or associations which can be done through words, visible representation or written publications:

(i) with the intention to cede or cause severance of any part of the territory of India from the Union, either done itself or by inciting any individual or group of individuals to cause such cession or severance;

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against India.

 

On a critical interpretation of this definition, it can be deduced that clauses (ii) and (iii)  of the definition are quite vague and open-ended. This gives surprisingly unlimited power to the Government to declare any kind of disclaim or questions as incitement as unlawful activities, at the garb of disruption to government’s sovereignty and territorial integrity. This can (or has already) led to prejudice to one of the most essential elements of a democracy i.e. constructive criticism of its Government.


Significance of bail in criminal proceedings


The provision of bail goes back to the medieval times of Magna Carta which was drafted 800 years back and described as the keystone of individual liberty and has been consistently followed in India. Clause 39 of the Royal Charter of the Magna Carta provided that

“no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled or deprived if his standing in any other way, nor will he be proceeded against with force, except by the lawful judgment of his equals or by the law of the land”.

 

The presumption of innocence is the cardinal rule of our criminal justice system and also finds its roots under Article 21 of the Constitution of India. The Supreme Court in several judgments have reiterated that “bail is the rule and jail is the exception”. Since presumption of innocence is attached to all the accused persons and as such they may be given the opportunity to look after and defend their own case. The Supreme Court in Sanjay Chandra v. CBI[2] has also echoed that the accused has a better chance to prepare and present his case while he is out on bail in the following words:

  1. 18. … It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted.…

 

Furthermore, the Supreme Court in Sanjay Chandra case[3] and State of U.P. v. Amarmani Tripathi[4], has observed that the following factors among others may be considered while deciding the bail application:

  • Nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
  • Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
  • Prima facie satisfaction of the court in support of the charge.

Legislative amendments in UAPA which specifically deals with stringent bail conditions


The UAPA has been amended a few times which has further strengthened the strict provisions of the Act. When it was first enacted it was meant to deal only with unlawful activities, whereby the Central Government was given the power to declare certain activities as unlawful. However, due to repeated amendments, the Act has converted itself into primary legislative enactment for “terrorist activities”. The amendments increased the powers of Central Investigating Agencies, especially the National Investigation Agency (NIA) with respect to prosecution of accused persons under the Act. Some of the amendments were introduced by the legislature in the years 2004, 2008, 2012 and 2019, wherein the 2008 amendment introduced stringent twin conditions to be applicable for grant of bail to the accused which are distinguishable from other special Acts such as Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and Prevention of Money-Laundering Act, 2002 (PMLA). Such conditions are now contained in Section 43-D(5) of the UAPA Act which is reproduced herein-below for the sake of ease reference:

 

43-D. Modified application of certain provisions of the Code.(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and “cognizable case” as defined in that clause shall be construed accordingly.

*               *             *

 (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

 

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

 

A bare perusal of the aforementioned conditions envisaged under Section 43-D(5) of the Act shall makes it apparently clear that the regular bail provisions under the Act are distinct from other similar provisions in as much as the other special Acts require recording of an opinion by the Court that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence, UAPA requires recording of an opinion by the court deciding bail that there are reasonable grounds for believing that the accusation against such person is “prima facie” true.

 


Interpretation of stringent bail provisions under UAPA by various judicial forums


As already discussed above, the bail conditions in UAPA are not only stringent but are also distinct from various other special Acts enacted by the legislature in India. Therefore, it is extremely pertinent to look at the interpretation of such provisions by various judicial forums in India in order to understand its applicability in various scenarios.

 

In 2019, the landmark judgment passed by the Supreme Court of India in National Investigation Agency v. Zahoor Ahmad Shah Watali,[5] has made pertinent observations in regard to the nature of the burden on the accused and the evidence to be considered in order to reach a prima facie finding of guilt while hearing bail applications. The relevant excerpts of the judgment are reproduced hereinbelow:

 

  1. 23. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.
  1. 24. A priori, the exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

 

From the above-mentioned observations it is evident that having a power, exercise of such power, and conditions of exercise of such power are three different things. Grant/denial of bail in terrorism-related offences under UAPA is a power of the designated court. Exercise of such power is bound by Section 43-D(5), which lays down a test of a lesser degree than the erstwhile TADA and POTA and other special Acts such as NDPS, PMLA. The Supreme Court has, however, released the grant of bail from this comfort by asking the court to “merely” record a finding on the basis of “broad probabilities regarding involvement in commission of a stated offence or otherwise”.

 

Further recently Delhi High Court in Asif Iqbal Tanha v. State of NCT of Delhi[6] has made it clear that prima facie burden as stated in Section 43-D(5) lies on the prosecution. Relevant excerpts of the judgment are reproduced hereinbelow for ease of convenience. Relevant excerpts of the judgment are reproduced hereinbelow for ease of reference:

  1. (l) In the statutory framework of the now repealed TADA and POTA, before allowing a bail plea, the court was required to assess whether the accused person was “not guilty” of the offence alleged; and therefore the burden was clearly on the defence to disprove the allegations on a prima facie basis. Correspondingly therefore, under Section 43D(5) of the UAPA, where, before allowing a bail plea, the court is required to assess if the accusation against an accused is prima facie true, the burden to demonstrate the prima facie veracity of the allegation must fall upon the prosecution. The requirement of being satisfied that an accused is “not guilty under TADA or POTA meant that the court must have reasons to prima facie exclude guilt; whereas the requirement of believing an accusation to be prima facie true” would mean that the court must have reason to prima facie accept guilt of the accused persons, even if on broad probabilities.

 

Thus it is clear that the bar for getting a bail under UAPA is on lighter footing when compared with other special Acts such as NDPS and PMLA. However, under the Act, bail can only be granted if the accused is able to prove that there does not, infact, exist a “prima facie” case against him.


Instances where judicial forums have granted bail to the accused under Act


In Union of India v. K.A. Najeeb[7], a three-Judge Bench of the Supreme Court headed by Chief Justice N.V. Ramana upheld the bail granted to the accused by the High Court of Kerala at Ernakulam under UAPA when the accused had undergone incarceration for a significant period even as it recognised that bail under UAPA was an exception.

  1. … courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

 

Recently, the Bombay High Court in P.V. Varavara Rao v. National Investigation Agency[8] has  reiterated the principles expounded by the Supreme Court in K.A. Najeeb[9] judgment made pertinent observations on the interpretation of Section 43-D(5) of the Act. Relevant excerpts of the judgment are reproduced hereinbelow for ease of reference:

 

  1. As we have noted above, in a given case, the fundamental rights guaranteed in Part III of the Constitution of India to prisoners languishing in four walls of prisons could be asserted on the basis of appropriate material to show that to recognise such rights, particularly the right guaranteed under Article 21 of the Constitution of India, the walls of the prison would have to be breached, subject of course, to imposition of appropriate conditions. Imposition of conditions would be in the nature of a safety net to ensure that the undertrial/accused is made to face proceedings before the trial court. The Supreme Court in K.A. Najeeb[10], has categorically held in the context of sufferings of undertrials where the proceedings before the trial court take years to be completed, that the rigours of provisions pertaining to grant of bail found in special statutes like the UAPA will melt down where there is no likelihood of the trial being completed within a reasonable time. Therefore, such a position of law is now well recognised and it can be relied upon where on facts, the court comes to a conclusion that continued incarceration of an accused like the undertrial in the present case, would violate his right under Article 21 of the Constitution, considering the precarious health condition of such an accused. Even otherwise, in the present case also, the respondents have conceded that at least 200 witnesses will be examined by the prosecution. The charge-sheet itself runs into thousands of pages. The charge is not framed yet, and consequently, the trial is yet to commence and, even after commencement of trial, it may take a long time to complete since the prosecution intends to examine at least 200 witnesses.

 

A bare perusal of the above-mentioned case laws shall make it clear without an iota of doubt that although rigours of granting bail to the accused under the Act are strict, however in any circumstance whatsoever the same  cannot take shape of prohibition on grant of bail to the person accused of committing offences under the Act. The most recent interpretation of Section 43-D(5) by the Supreme Court in Zahoor Ahmad Shah Watali[11] contains two pertinent observation switches that support such a conclusion. Firstly Section 43-D(5) of the act is on lighter footing when compared with other special Acts such as NDPS and PMLA Act and secondly  there is no need to going into merits and demerits of the case at the stage of bail pertaining to offences under the Act. Further The Bombay High Court in P.V. Varavara Rao[12] has further made it clear that incarceration of the accused while he is under trial in a case where trial may not occur immediately is an express violation of the right guaranteed to him under Article 21 of the Indian Constitution. Thus in lieu of above the position of law is well settled and no longer per incuriam that there is no prohibition of grant of bail under the provisions of the Act and if the accused meets the criteria which has been explained above in detail, he is entitled to grant of bail under the Act.


 Applicability of Section 167(2) of CrPC 1973 pertaining to offences under the Act


Apart from abovementioned provisions of regular and anticipatory bail,  Section 167(2)(a) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”), grants the accused the right to be released on bail when investigation has not been completed within 90 days in case of offences punishable with death/life imprisonment or imprisonment for a term not less than 10 years, and 60 days in case of other offences. The abovesaid provisions reproduced herewith for the convenience of reference:

  1. 167.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that:

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,–

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter.

 

However under the UAPA 1967 Section 43-D(2) of the Act  operates a special provision distinguishing the applicability of rights granted under Section 167(2)(a) of the Code. The provision is reproduced hereinbelow for ease of reference:

43-D. Modified application of certain provisions of the Code.

… (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—

(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.

 

Thus a bare reading of the above-mentioned provision of the Act shall make it clear that there that the benefit of default bail shall be available to the accused person for the offences committed under the Act for where the investigation have not concluded within 90 days of arrest of the accused irrespective of the punishment of the alleged offences committed by him. However it is pertinent to note that the provision also gives right to the investigation agencies to seek for extension of investigation to a period of 180 days by filing a report of the Public Prosecutor indicating the progress of investigation along with specific reasons for detention of the accused.

 

Further the Supreme Court in Bikramjit Singh v. State of Punjab[13], has made pertinent observations with in regard to interpretation of grant of default bail to a person accused of commission of offences under the Act:

  1. A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge-sheet is filed, the right to default bail becomes complete. It is of no moment that the criminal court in question either does not dispose of such application before the charge-sheet is filed or disposes of such application wrongly before such charge-sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.

 

On a bare reading of the provision, the Supreme Court’s interpretation of the same , it can be perceived that the provision is fair and just to the accused as well as the investigation agencies as it tries to create a balance between  rights of an individual and a greater/larger interest of the State. However the interpretation of this provision is extremely critical in order to maintain such balance as if on one hand  the right have been granted to accused to seek default bail when investigation is not complete within stipulated time and on the other hand the investigation authorities are also entitled to seek for an extension of investigation by spelling out requisite grounds,which if allowed would disentitle the accused form obtaining default bail. Therefore there is a  high chance that the investigation authorities in a backhanded manner  may move the application for extension of time period of investigation, without notifying the accused, then the act of the court in allowing  and would deprive the accused of their statutory liberty.

 

Recently Karnataka High Court in Muzammil Pasha v. National Investigating Agency[14], has clarified the position of law on this aspect and have held that extending the time period for an investigation without hearing the accused person under the provisions of Section 43-D(2) is a gross violation of natural Justice, such an act is in grave contravention with the settled principles of law. The High Court has further gone on to hold that even if charge-sheet has been filed within the extended period of investigation , the accused cannot be deprived of his right to be released on statutory bail, as the same is a right established by procedure of law and is hence covered under the ambit of Article 21 of the Indian Constitution relevant excerpt of the judgment are reproduced hereinbelow:

 

  1. In my considered opinion, the judgment of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra[15] and in Sanjay Dutt v. State[16] would be applicable to the facts of the present case. Since the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and Muzammil Pasha[17] since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Act of 1967 extending the time to complete the investigation is legally unsustainable and accordingly, Point 1 for consideration is answered in the negative.

*                        *                       *

 

  1. In the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as “default bail” on the ground that the prosecution had not completed the investigation and filed the charge-sheet. In view of the law laid down in Bikramjit Singh[18], merely for the reason that the charge-sheet Criminal Appeal No.699/2020 (arising out of SLP (Crl.) No.2333/2020) DD 26.10.2020 Muzammil Pasha[19] WP.1417/2021 C/W WP.637/2021, 640/21, 1299/21 & 1706/21 has now been filed, it will not take away the indefeasible right of the petitioners, if it has accrued in their favour. Therefore, there is no merit in the contentions of the learned ASG that the prayer made by the petitioners for grant of statutory bail under Section 167(2) of the Code cannot be considered having regard to the fact that the charge sheet has now been filed during the extended period for completion of the investigation.

35. The right to statutory bail has now been considered as a fundamental right under Article 21 of the Constitution of India, by the Supreme Court in Muzammil Pasha[20]and Bikramjit Singh[21]. Article 21 which guarantees the right to life and personal liberty is considered to be sacrosanct of our Constitution. The State has an obligation to follow fair, just and reasonable procedure prior to depriving any person this right guaranteed under Article 21.

Therefore its is imperative that the above provisions are interpreted in the light on principles of natural justice and in fair reasonable and just manner so that an accused is not deprived of his statutory rights in contravention of procedure established by law, which inturn is violative of the letter and spirit   under Article 21 of the Indian Constitution.


Conclusion


In lieu of provisions and judgments cited above , it is safe to conclude that the strict provision of bail under the Unlawful Activities Prevention Act, 1967, can in no circumstance whatsoever be interpreted as a prohibition on the grant of bail or a measure to incarcerate undertrial prisoners in cases where the trial may not commence shortly. It is also clear that in the cases pertaining to UAPA the burden of proving prima facie guilt rests on the prosecution which they need to prove on the basis of broad probabilities.  Further as far as statutory or default bail is concerned , same is also available to the accused under the Act subject to certain modifications, and the accused cannot be deprived of this right in abhorrence of principles of natural justice.  Thus it may not be wrong to say out of all the special Acts, Unlawful Activities Prevention Act, 1967 is an exception wherein higher burden lies on the prosecution to establish the prima facie guilt of the accused.


† Kapil Madan, Partner, KMA Attorneys.

†† Pulkit Pandey, Associate, KMA Attorneys.

[1] UAPA, 1967, S. 2(1)(o).

[2] (2012) 1 SCC 40.

[3] (2012) 1 SCC 40.

[4]  (2005) 8 SCC 21.

[5] (2019) 5 SCC 1.

[6] 2021 SCC OnLine Del 3253.

[7] (2021) 3 SCC 713.

[8] 2021 SCC OnLine Bom 230.

[9] (2021) 3 SCC 713.

[10] (2021) 3 SCC 713.

[11] (2019) 5 SCC 1.

[12] 2021 SCC OnLine Bom 230.

[13]  (2020) 10 SCC 616.

[14] 2021 SCC OnLine Kar 12688.

[15] (1994) 4 SCC 602.

[16] (1994) 5 SCC 402.

[17] 2021 SCC OnLine Kar 12688.

[18] (2020) 10 SCC 616.

[19] 2021 SCC OnLine Kar 12688.

[20]   2021 SCC OnLine Kar 12688.

[21] (2020) 10 SCC 616.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and N. J. Jamadar, JJ., granted bail to activist Sudha Bhardwaj after three years detention in Elgar Parishad case. The Bench expressed,

“Once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.”

Factual Backdrop

The applications for bail were filed under section 167(2) of the CrPC read with section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) in National Investigation Agency (NIA) Special Case, arising out of FIR in connection with a programme organized by the members of Kabir Kala Manch under the banner “Elgar Parishad” at  Shanivar Wada, Pune on 31-12-2017. The complainant alleged that the speeches and performances were provocative and had the effect of creating communal disharmony. It was further alleged that the said programme provoked the incidents of violence near Bhima Koregaon, Pune on 01-01-2018, resulting in the loss of life and property and creation of social disharmony. Resultantly, a case was filed against the applicants under sections 120B, 121, 121(A), 124(A), 153A, 505(1)(b), 117, 23 of Penal Code, 1860 and sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of UAPA.

The applicants had approached the Court seeking bail on the ground that the Judge, who extended the period for investigation under section 43-D(2) of UAPA and took cognizance of the offences was not legally empowered to grant such extension and take cognizance as he was not designated as a Special Judge either under section 11 or section 22 of the NIA Act.

Series of Events

Initially, the applicant, Ms. Sudha Bhardwaj was directed to be kept under house arrest by the order of Punjab & Haryana High Court. Later on the applicant was remanded to police custody. On 22-11-2018 the Public Prosecutor filed a report seeking extension of period for investigation. On 26-11-2018, the applicant filed an application for bail as 90 days period from the date of applicant’s arrest and production before the Magistrate had expired. The Sessions Judge passed an order on the report of the Public Prosecutor and extended the period of detention by 90 days.

Criminal Application No. 1458 of 2019

Similarly, the applicant 1 to 8 asserted that the UAPA does not contain any provision for the appointment of a Special Judge or for constitution of Special Courts. Thus, the usurpation of the jurisdiction by the Additional Sessions Judges, under a misnomer of Special Judge, was wholly illegal. The applicants contended that once the Special Court was constituted at Pune under section 22 of the NIA Act, only the said Special Court had jurisdiction to extend the period of detention under section 43-D(2) of the UAPA and no other.

Whether the Additional Sessions Judge had the jurisdictional competence?

Noticing that a conjoint reading and harmonious construction of the provisions contained in section 6 and section 10 of the NIA Act lead to a legitimate inference that till the NIA takes up the investigation of the case (necessarily involving a Scheduled Offence), the State Government is not divested of the authority to investigate and prosecute any Scheduled Offence, the Bench opined that in view of the provisions contained in section 13(1) of the NIA Act, if the Scheduled Offence is investigated by the NI Agency, it must be tried only by the Special Court set up by the Central Government under section 11 of the NIA Act. Similarly, even in case where the investigation is carried out by the State Investigation Agency into a Scheduled Offence, the trial shall be held by the Special Court constituted by the State Government under section 22(1) of the NIA Act, if available; and in the absence of such Special Court constituted under section 22(1) of the NIA Act, the trial shall be held before a Court of Session under section 22(3) of the NIA Act. Relying on the Supreme Court’s decision in Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, the Bench stated,

“So far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D (2)(b) is non- existent”.

Consequently, it was held that so far “extension of time to complete investigation” was concerned, the Magistrate would not be competent to consider the request and the only competent authority to consider such request would be “the Court”, as specified in the proviso in Section 43-D(2)(b) of the UAPA. Resultantly, it was held that the Additional Sessions Judge had no jurisdiction to deal with the case at hand.

Pre-trial and Trial Proceedings

Rejecting the submission of the respondents that under section 11 of the NIA Act, the Special Courts are to be constituted for the trial of Scheduled Offences as the Special Courts so constituted are not meant for conduct of pre-trial proceedings; and since the extension of period of detention, pending completion of investigation, is squarely in the realm of investigation, the ordinary criminal Courts are not divested of the jurisdiction to deal with pre-trial proceedings, including the extension of period of detention, the Bench observed, the first proviso in section 43-D(2)(b) expressly confers the power to extend the period of detention of the accused up to 180 days upon the ‘Court’, which in turn is defined in section 2(d) as ‘a criminal court having jurisdiction to try offences’ under the said Act. Hence, the Bench clarified, the legislature has vested the authority to extend the period of detention in the Court which is competent to try the offences under UAPA. The Bench reminded,

“The exercise of the power to extend the period of detention is thus not envisaged as a matter of routine. The Court is expected to apply its mind to the necessity of further detention and extension of period of investigation. This implies that the said power shall be exercised only by the Court which is vested with special jurisdiction by the statute.”

Consequence of order passed by the Court sans Jurisdictional Competence

Having held that the Additional Sessions Judge had no jurisdiction to deal with the instant case, the next question before the Bench was whether the act of taking cognizance of the Scheduled Offences by the Additional Sessions Judge when a Special Court under S. 22 of NIA Act was in existence at Pune entailed the consequence of nullifying the whole proceeding? The Bench stated, Clause (e) of section 460 of the CrPC declares that if any Magistrate, not empowered by law, erroneously in good faith, takes cognizance under clause (a) or clause (b) of sub-section (1) of section 190, his proceedings shall not be set aside merely on the ground of his not being so empowered. In other words,

“The fact that the Additional Sessions Judge took cognizance of the Scheduled Offences, despite the existence of a Special Court at Pune, in the absence of material to demonstrate that there was resultant failure of justice, could not be exalted to such a pedestal as to hold that the very presentment of the charge-sheet by the investigating agency is non-est in the eye of law.”

Hence, the Bench held that the act of taking of cognizance, by the Additional Sessions Judge did not entail the consequence of the vitiation of the entire proceedings as, failure to take cognizance or defect in jurisdiction in taking cognizance, once the charge-sheet was laid, does not entail the consequence of default bail.

Findings of the Court

In M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485, it was held that from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency, “the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent fling of the charge sheet or a report seeking extension of time by the prosecution before the Court; or fling of the charge sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty.” The Bench observed,

“Once, the twin conditions of default in fling the charge-sheet, within the prescribed period, and the action on the part of the accused to avail the right are satisfied, the statutory right under section 167(2) of the Code catapults into a fundamental right as the further detention falls foul of the personal liberty guaranteed under Article 21 of the Constitution.”

Accordingly, the Bench opined that once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.

Decision

Considering the hard facts with regard to the application of Sudha Bharadwaj were: (i) that the period of detention of 90 days (excluding the period of house arrest) expired on 25-01-2019; (ii) no charge-sheet was lodged; (iii) there was no lawful order of extension of period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication; the Bench opined that to deprive the applicant-Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26-11-2018 was premature, would be taking a too technical and formalistic view of the matter. Accordingly, the Bench held that all the requisite conditions to release the applicant-Sudha Bharadwaj on default bail stood fully satisfied.

However, since neither applicants 1 to 5 claimed to have fled an application for default bail under section 167(2) of the Code, after the expiry of initial period of 90 days from the date of their production before the Additional Sessions Judge till the fling of the charge-sheet nor did applicants 6 60 8 availed the right of default bail, by fling an application, within the meaning of section 167(2) of the Code; the Bench held that the those applicants failed to apply for default bail when the right accrued to them.

In the light of the above, the bail application of applicants 1 to 8 was rejected whereas the application preferred by Sudha Bharadwaj was allowed. [Sudha Bharadwaj v. National Investigation Agency, 2021 SCC OnLine Bom 4568, decided on 01-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Dr.Yug Mohit Chaudhary a/w. Ms. Payoshi Roy and Ms. Chandni Chawla for applicant in BA/2024/2021.

Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah, Ms. Smita Thakur, Mr. Pranav Thakur and Mr. Vishal Gautam for respondent- NIA in APL/2024/2019.

Mr.Sudeep Pasbola a/w. Mr.Barun Kumar, Mr. Karl Rustomkhan and Ms. Susan Abraham i/b Mr. R. Sathyanarayanan for applicants in APL No.1458/2019 and IA/376/2020.

Mr.A.A. Kumbhakoni, Advocate General a/w. Smt. A.S. Pai, PP, Mrs. S.D. Shinde, APP and Mr. Akshay Shinde, “B” Panel Counsel for respondent-State.

Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah and Mr. Pranav Thakur for respondent-NIA in APL/1458/2019.

Case BriefsSupreme Court

Supreme Court: After granting bail to a 74-year-old arrested under the Unlawful Activities (Prevention) Act, 1967, as after the charge-sheets came to be filed way back in 2012, the charges were framed after 7 years and hearing was taking place only one day in a month, the bench of Ajay Rastogi* and Abhay S. Oka, JJ said that if this procedure is being followed in conducting the trial under the National Investigation Agency Act, 2008, it frustrates the very purpose with which the special Courts are designated.

Under the scheme of the Act 2008,

  • the power is vested with the Central Government in consultation with the Chief Justice of the High Court, for the trial of scheduled offences, designate one or more Courts of Session as Special Courts, by notification in the Official Gazette, with the place of jurisdiction of special Courts and its jurisdictional power has been defined under Sections 13 and 14 of the Act 2008.
  • Section 19 of the Act 2008 mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall, if necessary, remain in abeyance.
  • The power of State Government to designate one or more Courts as Special Courts for the trial of offences under any or all the enactments specified in the Schedule is provided under Section 22 of the Act, 2008.

However, the Court was informed that only one such Special Court has been designated by the State of West Bengal to try such cases under the Act 2008.

The Court, hence, directed the State of West Bengal to take up the issue and designate more dedicated courts of Sessions as Special Courts for the trial of offences specified in the schedule appended to the Act 2008. At the same time, the Central Government may also, in consultation with the Chief Justice of the High Court, Calcutta may exercise its power and take up the issue at the earliest so that such trials which are pending under the Act 2008 may go ahead speedily and the mandate, as intended by the legislature in its wisdom, reflected from Section 19 of the Act, is being complied with in its letter and spirit.

Read more details on the case, here.

[Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156, decided on 01.12.02021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

 Supreme Court: In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi and Abhay S. Oka, JJ has directed that the accused be released on post-­arrest bail by the trial Court.

Asim Bhattacharya was arrested on 6th July, 2012 for offences under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of the Unlawful Activities(Prevention) Act, 1967. The matter was then tranfereed to the National Investigation Agency (NIA).

The Court noticed that though the charges against the accused are “undoubtedly serious”, the same will have to be balanced with certain other factors like the period of incarceration which the appellant has undergone and the likelihood period within which the trial can be expected to be finally concluded.

The Court, hence, considered the following factors,

  • the old age of the accused
  • the statement of the de-facto complainant has still not been completed,
  • there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial.
  • The Accused is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.

Section 19 of the National Investigation Agency Act, 2008 mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008. The Court, however, noticed that the ground realities are totally different. In the instant case, after the charge-sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge-sheet on 20th June, 2019. The order sheets indicate that hearing is taking place only one day in a month.

The Court, hence, noticed that,

“looking to the voluminous record and number of the prosecution witnesses which are to be examined, it may take its own time to conclude and indeed the undertrial prisoner cannot be detained for such a long period of incarceration.”

Noticing that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India, the Court said that,

“While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.”

Hence, once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.

The Court, hence, directed that the accused be released on post-arrest bail. However, the trial Court will be at liberty to consider and impose appropriate conditions.

[Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156, decided on 01.12.02021]

*Judgment by: Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: The 3-Judges Bench comprising of Dr. Dhananjaya Y. Chandrachud*, Vikram Nath, BV Nagarathna, JJ., clarified the conflicting relationship between the State Investigation Agencies and the NIA. The Bench stated,

“While the NIA Mumbai may have re-numbered the case file on 14 September 2016, it could not have taken the initial step of its investigation into the case till it had access to the case papers, which it only received from the ATS Nanded on 8 December 2016. Thus, the mere renumbering of the case filed by the NIA Mumbai did not take away the power of the ATS Nanded to continue the investigation.”

Factual Matrix

The instant case dealt with a case registered under Unlawful Activities (Prevention) Act 1967 and Explosive Substances Act 1908. A complaint was registered with the Anti-Terrorism Squad alleging that the appellant had been planning to assist one Farooq (a member of IS/ISIS/ISIL/Daesh) in making bombs/IEDs to cause a blast during the month of Ramzan.

Findings of the High Court

The appellant had filed a petition before the High Court of Judicature at Bombay to challenge the order of the ASJ, Nanded contending that once the Central government entrusted the investigation to the NIA under Section 6(4) of the NIA Act, ATS Nanded had no jurisdiction to continue with the investigation. The appellant argued that since the offences under the UAPA are scheduled offences under the NIA Act, even if investigated by the State Investigating Agency, they would be exclusively triable by a Special Court constituted under the NIA Act and the CJM, Nanded had no jurisdiction to remand the accused persons and commit the case for trial before the ASJ, Nanded.

The High Court held that the ASJ, Nanded had jurisdiction to try the offences under the UAPA, even though they were scheduled offences under the NIA Act, until the investigation was entrusted to and taken over by the NIA, after which the Special Court constituted under Section 11 of the NIA Act would exclusively try such scheduled offences.

Statutory Mandate

Noticeably, the controversy revolved substantially on the interpretation of Section 6 of the NIA Act. The Bench observed that while sub-Section (6) stipulates a two-fold requirement, that upon the issuance of a direction under sub-Sections (4) or (5) of Section 6 neither the State government nor the police shall proceed with the investigation and must transmit the documents and records to the NIA forthwith, sub-Section (7) imposes a statutory obligation on the officer in-charge of the police station to continue the investigation till the NIA actually takes over. The Bench observed, while enacting the provisions of sub-Section (7) of Section 6, the Parliament was conscious of the fact that an interlude may occur between the date of the issuance of a direction and the actual taking up of the investigation by the NIA, however it ensured there should be no hiatus in the investigation to the detriment of the interests of national security involved in the enactment of the legislation.

Thus, the Bench opined that both the issuance of directions under sub-Sections (4) and (5) of Section 6 and the NIA actually taking up the investigation of the case would result in the power of the officer in-charge of the police station being denuded.

Observation and Analysis

Whether the investigation conducted by the ATS Nanded after the NIA had renumbered the case lacked jurisdiction?

On a conjoint reading of sub-Sections (4), (5), (6) and (7) of Section 6, what emerged was that the ATS Nanded had a duty to continue with the investigation till the NIA Mumbai actuallytook over the investigation from it. Therefore, the question before the Bench was when did the NIA Mumbai actually commence the investigation in the present case.

Holding that an investigation commences upon the receipt of information by the police which discloses the commission of a cognizable offence, the Bench clarified, however, the mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information.

In the present case, the ATS Nanded filed the charge-sheet before the CJM, Nanded on 07-10-2016 (which was prior to even the letter of the NIA Mumbai dated 23-11-2016 for the handing over of the case records). Likewise, the CJM, Nanded took cognizance of the offence and committed the case to trial before the ASJ, Nanded on 18-10-2016.

Further, the NIA Mumbai intimated the ATS Nanded to transfer the case papers on 23-11- 2016, which were transferred on 08-12-2016. Therefore, the Bench held that though the NIA Mumbai had re-numbered the case file on 14-09-2016, it could not have taken the initial step of its investigation into the case till it had access to the case papers, which was on 08-12-2016.

Hence, opining that the mere renumbering of the case file by the NIA Mumbai did not take away the power of the ATS Nanded to continue the investigation, the Bench held that the investigation conducted by the ATS Nanded prior to transferring papers was within the mandate of sub-Section (7) of Section 6 of the NIA Act.

Was the submission of the charge-sheet before the CJM, Nanded and the order of committal sans jurisdiction?

“The exclusive jurisdiction of the Special Court to try a scheduled offence under sub Section (1) of Section 13 attaches where the scheduled offence has been “investigated by the NIA”. However, this clearly would not affect either the antecedent investigation by the ATS Nanded prior to the NIA Mumbai having taken up the investigation or the submission of the charge-sheet as a logical consequence of the investigation which was conducted by the ATS Nanded.”

The second question was even if the ATS Nanded had the power to continue with its investigation and file a charge-sheet, it could only be before a Special Court under the NIA Act since the appellants had been charged under the UAPA, which is a scheduled offence under the NIA Act.

Noticeably, the Government of Maharashtra, in exercise of powers conferred by Section 11 read with Section 185 of the Code of Criminal Procedure -1973 had issued a notification designating the Chief Judicial Magistrate, Nanded, as a Court of remand and the Court of Additional Sessions Judge, Nanded, as a Special Court to try cases filed by the ATS Nanded and that no Special Court had been established by the State Government under Section 22 National Investigation Act, 2008, the Bench held that the chargesheet was rightly filed before CJM Nanded.

Hence, the Bench affirmed the impugned judgment and order of the High Court, holding that in accordance with Section 6(7), the ATS Nanded was not barred from continuing with its investigation till the NIA Mumbai actually took up the investigation. Further, it was held that we hold that the CJM, Nanded could have committed the case to trial before the ASJ, Nanded since they were the designated Courts for the ATS Nanded and no Special Court had been designated by the Government of Maharashtra under Section 22 of the NIA Act.­­­

[Naser Bin Abu Bakr Yafai v. State of Maharashtra, 2021 SCC OnLine SC 950, decided on 20-10-2021]


Kamini Sharma, Editorial Assistant has put this report together


Appearance by:

For the Appellants: Mr Farrukh Rasheed, Advocate and Mr Colin Gonsalves, Senior Counsel

For the State of Maharashtra: Mr K M Nataraj, Additional Solicitor General and Mr Rahul Chitnis, Standing Counsel


*Judgment by: Justice Dr. Dhananjaya Y. Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

­­­­­­­­­­­­­­­­­

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has granted bail to Thwaha Fasal and Allan Shuaib, booked under punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 for alleged links with Communist Party of India (Maoist).

It was argued before the Court that though the investigation of the case was later on, transferred to National Investigation Agency (NIA), the NIA did not seek sanction for prosecuting any of the accused for the offence punishable under Section 20. Sanction was sought to prosecute Fasal and Shuaib for the offences punishable under Sections 38 and 39. In addition, a sanction was sought to prosecute Shuaib under Section 13.

Hence, in view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, it was noticed that a prima facie case of the accused being involved in the said offence is not made out at this stage.

Material against Fasal

  • Fasal’s cell phone had a video clip with the title “Kashmir bleeding”, as well as portraits of various communist revolutionary leaders, like Che Guvera and Mao Tse Tung, as also portrait of Geelani, a Kashmiri leader. Copies of certain posters were also found.
  • Pdf files extracted showed that it contained material regarding abrogation of Article 370 of the Constitution and various other items.
  • The photographs also showed that he attended protest gathering conducted in October 2019 by Kurdistan Solidarity Network.
  • No incrimination evidence was found in the face book account, e-mail accounts and call details of the accused.

Material against Shuaib

  • On Shuaib’s devices, images of CPI (Maoist) flag, files relating to constitution of central committee of CPI (Maoist), files relating to CPI (Maoist) central committee programme, image of hanging Prime Minister, various newspaper cuttings relating to maoist incidents were found. A book was also seized relating to encounter with PLGA (Maoist) at Agali.
  • During the search of his residence, he shouted slogans, such as inquilab zindabad and maoisim zindabad. He also shouted slogans containing greetings to the brave martyrs who died in an armed encounter between Maoist members and police.
  • No incrimination evidence was found in the face book account, e-mail accounts and call details of the accused.

“Mere” association with a terrorist organization – Implication?

Taking the charge sheet as correct, at the highest, it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation. However, mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39.

“The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet.”

The Court noticed that at formative young age, Fasal and Shuaib might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form.

“Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of both in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organization.”

The Court noticed that apart from the fact that overt acts on their part for showing the presence of the required intention or state of mind are not borne out from the charge sheet, prima facie, their constant association or support of the organization for a long period of time is not borne out from the charge sheet.

Section 43D vis-à-vis Court’s power to grant bail

While deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds.

“However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is.”

Further, the stringent restrictions imposed by sub-section(5) of Section 43D, do not negate the power of Constitutional Court to grant bail keeping in mind violation of Part III of the Constitution.

Bail to Fasal and Shuaib

Having examined the material against both the accused in the context of sub-section (5) of Section 43D by taking the materials forming part of the charge sheet as it is, the Court was of the opinion that the accusation against both the accused of the commission of offences punishable under Sections 38 and 39 does not appear to be prima facie true.

Factors considered

  • Fasal is taking treatment for a psychological disorder and is also a student of law. Moreover, 92 witnesses have been cited by the prosecution. Even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reasonable time as even charges have not been framed.
  • There is no minimum punishment prescribed for the offences under Sections 38 and 39 of the 1967 Act and the punishment can extend to 10 years or only fine or with both. Hence, depending upon the evidence on record and after consideration of relevant factors, the accused can be let off even on fine.
  • Shuaib has been in custody for more than 570 days.
  • As regards the offence under Section 13 alleged against Shuaib, the maximum punishment is of imprisonment of 5 years or with fine or with both.

Hence,

  • The appeal preferred by Union of India is dismissed and the order granting bail to Fasal is confirmed.
  • The impugned Judgment and Order of the High Court to the extent to which it sets aside the order granting bail to him Shuaib is quashed and set aside and the Special Court’s Order dated 9 th September 2020 granting bail to him is restored. Shuaib to be produced before the Special Court within a maximum period of one week to enable him to complete the bail formalities by furnishing the fresh bonds.

[Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, decided on 28.10.2021]


Counsels

For Accused: Senior Advocates R. Basant, Jayanth Muthuraj

For State: ASG S.V. Raju


*Judgment by: Justice Abhay S. Oka

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted regular bail to activist Devangana Kalita and Natasha Narwal in the Delhi-Riots case.

Appellant’s who were arrested for participating in protests against the Citizenship Amendment Act, 2019 and in custody since 29-05-2020, preferred the appeal under Section 21(4) of National Investigation Agency Act, 2008 impugning order of Special Court rejecting her bail application registered under provisions of Penal Code following to the addition of provisions of Prevention of Damage to Public Property Act, 1984 and Unlawful Activities (Prevention) Act, 1967.

Why was Devangana Kalita & Natasha Narwal in custody? | State against Devangana Kalita & Natasha Narwal. Why?

Larger Conspiracy

State essentially alleged that the appellant’s as a part of women’s rights group called Pinjra Tod and other activistic groups participated in a ‘larger conspiracy’ to commit certain offences which led to violence and rioting in the North-East Delhi between 22-02-2020 and 26-02-2020.

Findings and Analysis

  • Purported independent review of evidence by a purported independent authority; and the fact that the Central Government has, based thereupon, granted sanction of prosecution for offences under Chapters IV or VI of the UAPA, must never enter the consideration of the Court when deciding whether the ingredients of any offence under the UAPA are disclosed in the charge-sheet.
  • In Asif Iqbal Tanha v. State of NCT of Delhi in CRL. A. No. 39/2021, Court analysed the provisions engrafting ‘terrorist act’ and ‘conspiracy’ or ‘act preparatory’ to the commission of a terrorist act.
  • The phrase ‘terrorist act’ cannot be permitted to be applied in a cavalier manner to criminal acts or omissions that fall squarely within the definition of conventional offences.
  • Right to Protest: Contours of legitimate protest have been explained in the Supreme Court decision of Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324. In the said decision it was expressed that: “legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, since people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated.”
  • In the charge-sheet, Court did not find any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 UAPA or an act of ‘raising funds’ to commit a terrorist act under Section 17 or an act of ‘conspiracy’ or an ‘act preparatory’ to commit, a terrorist act within the meaning of Section 18 UAPA.
  • Bail Principles: The said principles were in detail discussed in the decision of Asif Iqbal Tanha v. State of NCT of Delhi in CRL. A. No. 39 of 2021, a brief reiteration of the same was done in the present matter.

Devangana Kalita | Conclusion

  1. Right to Protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of UAPA, unless ingredients of offences under Sections 15,17 and 18 of the UAPA are discernible from factual allegations.
  2. Shorn off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under Sections 15, 17 and/or 18 of the UAPA.
  3. It appeared that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity. If such blurring gains traction, democracy would be in peril.

Appellant in view of the above discussion was granted regular bail subject to conditions.[Devangana Kalita v. State, 2021 SCC OnLine Del 3255, decided on 15-06-2021]

Natasha Narwal | Conclusion

  1. No specific, particularised or definite act was attributed to the appellant, apart from the fact that she engaged herself in organising anti-CAA and anti-NRC protests when riots and violence broke out in certain parts of North-East Delhi.
  2. State cannot thwart grant bail merely by confusing issues.
  3. Opinion: Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, at worst were evidence that the appellant participated in organising protests, but no conclusion of a specific or particularised allegation that appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA.

The Appellant was granted regular bail subject to conditions.

[Natasha Narwal v. State (NCT of Delhi), 2021 SCC OnLine Del 3254, decided on 15-06-2021]


Advocates before the Court:

For the Appellant: Mr. Adit S. Pujari, Ms. Tusharika Mattoo & Mr. Kunal Negi, Advocates.

For the Respondent: Mr. Amit Mahajan, Mr. Amit Prasad and Mr. Rajat Nair, SPPs for the State along with Mr. Dhruv Pande & Mr. Shantanu Sharma, Advocates.


Also Read:

Del HC | Crucial aspects of ‘Terrorist Act’ and Right to Protest | Everything about Asif Iqbal Bail Order

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted bail to Asif Iqbal, who was booked under provisions of the UAPA Act for his role in the Delhi Riots during the anti-CAA protest last year.

Asif Iqbal | Mastermind behind Delhi Riots?

Asif Iqbal Tanha, a 25-year old student filed the instant appeal under Section 21(4) of the National Investigation Agency Act, 2008 seeking bail as he was in judicial custody since 19-05-2020 under provisions of Penal Code, 1860, Prevention of Damage to Public Property Act, 1984 and Unlawful Activities (Prevention) Act, 1967.

Appellant was alleged to be one of the main conspirators as well as instigators behind the riots that occurred in North-East Delhi and played an active role in the conspiracy.

Section 15 of Unlawful Activities (Prevention) Act, 1967

The said section defines ‘terrorist act’ and Section 18 provides for ‘punishment for conspiracy for committing a terrorist act, including an attempt to commit or advocating, abetting, advising or inciting the commission of a terrorist act, as also of any act preparatory to the commission of a terrorist act’, the word ‘terrorism’ or ‘terror’ has nowhere been defined in the UAPA.

Right to Protest | Part of Fundamental Rights under Constitution of India

48. …Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right.”

“…Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views.”

“31. The right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India.”

  • Ramlila Maidan Incident, In re [(2012) 5 SCC 1], the Court observed that the right to assembly and peaceful agitations were basic features of a democratic system and the Government should encourage exercise of these rights

Bench noted that in the present matter, there was nothing to show that Government prohibited the protest.

‘Terrorist Act’ under Section 15 UAPA

The said phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omission that fall squarely within the definition of conventional offences.

Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’.

State’s attempt to show accusation against appellant prima facie true: Fail. How?

  • No allegation leading to appellant being the leader of all the co-conspirators.
  • Appellant was stated to be a member of SIO and JCC, both are not banned organisation or terrorist organisations listed in First Schedule of UAPA.
  • The anti-CAA protest did not extend to the whole of NCT of Delhi, therefore it would be a stretch to say that the protest affected the community at large for it to qualify as an act of terror.
  • No arms, ammunition and other articles used as weapons were recovered from or at the instance of the appellant.
  • Foundations of nation stand on surer footing that to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi.
  • State’s submission based upon inferences drawn by the prosecuting agency and not upon factual allegations.
  • Protest in which the appellant participated was neither banned nor outlawed and the same was monitored by law enforcement agencies.

High Court found absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of Section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under Section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of Section 18 UAPA.

Bench opined that no offence under Sections 15, 17 or 18 UAPA was made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under Section 43D(5) UAPA do not apply.

With regard to outlining the consideration for bail, Court referred to the following significant decisions of the Supreme Court in:

Therefore, applying the well-worn principles of bail, Court held that it is not prima facie convinced of the veracity of the allegations so made and hence granted regular bail subject to conditions.[Asif Iqbal Tanha v. State (NCT of Delhi), 2021 SCC OnLine Del 3253, decided on 15-06-2021]


Advocates before the Court:

For the Appellant: Mr. Siddharth Aggarwal, Advocate with Ms. Sowjhanya Shankaran, Mr. Siddharth Satija, Mr. Abhinav Sekhri & Ms. Nitika Khaitan, Advocates

For the Respondent: Mr. Aman Lekhi, ASG alongwith Mr. Amit Mahajan, Mr. Rajat Nair and Mr. Amit Prasad, SPPs with Mr. Ujjwal Sinha, Mr. Aniket Seth, Mr. Ritwiz Rishabh, Ms. Riya Krishnamurthy and Mr. Dhruv Pande, Advocates.

Sh. P. S. Kushwaha, DCP with Sh. Alok Kumar, Addl. DCP, Special Cell, Insp. Lokesh Kumar Sharma and Insp. Anil Kumar.

Case BriefsHigh Courts

Karnataka High Court: S. Vishwajith Shetty, J. quashed the extension order and granted bail under Section 167 (2) Criminal Procedure Code.

The instant writ petitions are filed by the accused persons in an FIR pending before the Special N.I.A. Court, Bangalore registered for the offences punishable under Sections 15, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 i.e. UAPA and Sections 143, 147, 148, 353, 333, 332, 436, 427 and 149 of the Penal Code, 1860 i.e. IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Kadugondanahalli Police Station (hereinafter referred to as “the K.G. Halli P.S.”) Bengaluru, challenging the order dated 03.11.2020 passed by the said court on an application filed by the respondent – National Investigating Agency i.e. NIA under first proviso to Section 43- D(2)(b) of UAPA seeking extension of time for completion of investigation and the order dated 05.01.2021 passed by the said court rejecting the applications filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, 1973 i.e. CrPC seeking statutory/default bail.

Counsel for the petitioners  Mr.  M.S. Shyam Sundar submitted that the application under Section 43-D(2)(b) of UAPA seeking extension of time for completion of investigation has been filed much prior to expiry of 90 days from the date of remand of the petitioners and therefore, the said application is premature. It was further submitted that said application is filed only to deny the right to statutory bail of the petitioners. He also submitted that the petitioners were not heard by the trial court before passing orders on application under Section 43-D (2) (b) of UAPA and the copy of the application was also not served on the petitioners or on their Advocates.

Mr. Anees Khan appearing on behalf of the petitioners submitted that none of the accused were present before the court on the date when the application under Section 43-D (2) (b) of UAPA was filed by the prosecution. He submits that in the event of this court holding that the order passed by the trial court extending the time for investigation is not in accordance with law, then the petitioners’ application under Section 167(2) of the Code merits consideration and as a matter of right, they are entitled to statutory bail.

Counsel for the respondents submitted that a reading of Section 43-D (2)(b) of UAPA would make it clear that there is no necessity of hearing the accused persons before passing any orders on the application filed by the prosecution seeking extension of time for completion of the investigation. He submitted that in the absence of the statute providing any such right to the accused persons in black and white, on the ground of principles of natural justice, they cannot claim such a right.

It was further submitted that as per Section 16 of the National Investigation Agency Act, 2008 and the said Act being a special enactment over-rides the provisions of the Code and therefore, the petitioners are not entitled to the relief of statutory bail under Section 167(2) of the Code.

The Court perused and concluded that Section 20(4) (bb) of the TADA Act, Section 36A (4) of the NDPS Act and Section 43-D(2)(b) of UAPA are three provisions of law which are pari materia.

The Court observed that the requirement of a notice to the accused before granting extension of time for completing the investigation need not be a written notice giving reasons therein, but production of accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered is alone sufficient for the purpose.

The Court further observed that the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of the investigation.

The Court thus held the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D (2)(b) of UAPA extending the time to complete the investigation is legally unsustainable”

The Court relied on judgment Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 and observed that a right to default bail becomes complete and indefeasible as soon as application for grant of default bail (regardless of its form, even if it is oral) is made on expiry of the maximum prescribed period before a charge sheet is filed. Thereafter, this indefeasible right, firstly, cannot be defeated by filing of charge sheet; secondly, it cannot be defeated whether there is non-disposal or wrong disposal of the application for default bail, before or after filing of charge sheet and thirdly filing of a subsequent application for default bail will not defeat the indefeasible right already standing accrued to accused based on the first application.

The Court also observed that in the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as “default bail” on the ground that the prosecution had not completed the investigation and filed the charge sheet. Hence, merely for the reason that the charge sheet has now been filed, it will not take away the indefeasible right to default bail of the petitioners, if it has accrued in their favour.

The Court held the application filed by the petitioners under Section 167(2) of the Code immediately after completion of the first 90 days of period is required to be allowed.[Muzammil Pasha v. National Investigating Agency, W.P.No. 1417 of 2021, decided on 20-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Additional Read: https://www.scconline.com/blog/post/2020/09/05/ori-hc-default-bail-granted-under-s-1672-crpc-in-case-of-non-compliance-of-notice-under-s-36-a-4-ndps-act/


Appearances before the Court

Petitioners: Mr. Shyam Sundar, and Mr. Mohammed Tahir

Respondents: Mr. M.B.Naragund and Mr. Prasanna Kumar

Case BriefsHigh Courts

Delhi High Court: After jailed activist Natasha Narwal’s father Mahavir Narwal breathed his last owing to COVID-19, the bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ has released Natasha Narwal on interim bail for 3 weeks. While doing so, the Court said,

“… the release of the applicant/appellant is imperative in this hour of grief and personal loss and in the facts and circumstances of the case.”

Natasha had originally sought bail on the ground that her aged father had been hospitalised on account of having tested ‘positive’ for COVID-19 virus and that her brother, who was hitherto taking care of the father, had also tested ‘positive’ for Covid-19 subsequently and was consequently unable to take care of their aged, ailing father. The Court was, however, informed that Natasha’s father passed away on 09.05.2021.

Considering that Mahavir Narwal was survived only by his daughter, Natasha and a son, who was in self-isolation owing to COVID-19 infection; the Court took note of the fact that there is nobody else in the family to perform his cremation and last rites. Natasha’s mother passed away some 21 years ago.

The Court, hence, directed Natasha’s release on the following conditions:

“1) The appellant/applicant shall furnish a personal bond in the sum of Rs. 50,000/- to the satisfaction of the Jail Superintendent. In view of the circumstance that her sole sibling Mr. Akash Narwal is currently in self-isolation by reason of being afflicted by COVID-19 and the appellant/applicant has already furnished sureties towards bail granted to her in FIR No. 50/2020 at P.S.: Jafrabad and FIR No. 48/2020 at P.S.: Jaffrabad, the appellant/ applicant is exempted from filing any surety;

2) The appellant/applicant will provide a cell phone number to the SHO, P.S.: Crime Branch (Special Cell) on which she may be contacted at any time, which she undertakes to keep operational during the entire period of her release. In addition, the appellant/ applicant shall also furnish a cell phone number to the SHO, PS : Urban Estate, Rohtak, Haryana, which is stated to have jurisdiction over the place of the appellant/applicant’s residence at 1225, Sector-3, Rohtak, Haryana;

3) The appellant/applicant shall comply with all governmental rules in force by reason of the prevailing pandemic and observe all precautions as stipulated therein without demur, including but not limited to wearing a PPE kit at the time of the cremation;

4) The appellant/applicant shall not leave the territories of the State of Delhi and Haryana without permission of the court and shall ordinarily reside at the address as per prison records/as mentioned in the application;

5) The applicant/appellant shall surrender before the Jail Authorities upon expiry of the period of interim bail;

6) Not earlier that 03 days before the time of her surrender, the applicant/appellant shall undergo an RT-PCR test for COVID-19 and shall provide to the Jail Superintendent a copy of such report.”

Natasha was arrested under the Unlawful Activities (Prevention) Act for an alleged ‘premeditated conspiracy’ in the northeast Delhi riots in February, 2020 and has remained behind bars at New Delhi’s Tihar Jail since May last year.

[Natasha Narwal v. State of Delhi NCT, 2021 SCC OnLine Del 1960 , order dated 10.05.2021]


Appearances before the Court by:

For Applicant: Advocates Adit S. Pujari, Tusharika Mattoo and Kunal Negi

For State:  SPP Amit Prasad, Amit Mahajan, and Rajat Nair and Advocates Dhruv Pande and Shantanu Sharma

Case BriefsHigh Courts

Kerala High Court: In an interesting case the Division Bench comprising of A. Hariprasad and M. R. Anitha, JJ., had granted bail to the accused of terrorist activities. All the accused were booked for gold smuggling with an intention to destabilize the economy of the nation under the Unlawful Activities Prevention Act, 1967 (UAPA).

The instant appeal was filed against the order of Trial Court, whereby the Court had granted bail to all the accused except the accuse 7. National Investigation Agency (NIA) had registered the above-mentioned case alleging offences punishable under Ss. 16, 17 and 18 of UAPA. Accused persons were arrested by NIA on different dates and they had been confined to custody for a considerable time.

Allegations raised by the investigating agency was that on 05-07-2020, the officers of the Customs Department seized 30kgs of 24 carat gold, from International Airport, Thiruvananthapuram, secreted in a consignment camouflaged as diplomatic baggage sent from United Arab Emirates (UAE). It was alleged that the gold was smuggled through the diplomatic channel pursuant to a conspiracy hatched by the accused persons. It had been argued that the smuggled gold could have been used for financing terrorist activities in India or to destabilizing the economic security of India.

Interpretation of “Terrorist Activities”

The Bench interpreted the scope of Section 15 of UA(P) Act. Section 15(1) had mentioned that “whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India through any of the modes specified in Clauses (a), (b) or (c) commits a terrorist act.”

Similarly, under Sub-clause (iiia) to Section 15(1)(a) it had been established that “by any means of whatever nature if any damage to the monetary stability of India is caused or likely to be caused by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material, then also it will amount to a terrorist act.”

The Court discerned from Section 15(1)(a)(iiia) that what become a terrorist act thereunder was causing damage to the monetary stability of India by producing high quality counterfeit Indian paper currency, coin or any other material or smuggling of high quality counterfeit Indian paper currency, coin or any other material or circulating high quality counterfeit Indian paper currency, coin or any other material.

Whether “Any other material” under Section 15(1)(a)(iiia) would include gold smuggling?

It was contended by the appellant that high-quality counterfeit Indian paper currency or coin could not be disassociated or separated from the words “any other material”. The Bench while applying statutory rules of interpretation stated that it would be apposite to consider the wafer-thin distinction between “noscitur a sociis” and “ejusdem generic”. High-quality counterfeit Indian paper currency, coin or any other material should be read and understood as anything directly related to currency or coin.

Further, the Bench expressed, the legislature must had been aware of the existence of the Customs Act when it amended Section 15. Non-inclusion of the Customs Act in the Schedule to NIA Act also must be regarded as a conscious act by the legislature. Therefore, the Court said that by applying the above-mentioned rules of interpretation that smuggling of gold simplicitor would fall within Section 15(1)(a) (iiia) of UA(P) Act. The Bench said,

Gold smuggling clearly covered by the provisions of the Customs Act would not fall within the definition of Terrorist Act in Section 15 unless evidence was brought out to show that it was done with the intent to threaten or it was likely to threaten the economic security or monetary stability of India.

  “Other material” could be any material connected to counterfeit Indian paper currency or counterfeit Indian coin, like machinery or implements or high-quality paper or any other material which could be used for producing or circulating fake currency or coin. Noticing the arrangement of words indicating the things mentioned in the provision, the Court refused to accept gold smuggling with a mere illegal profit motive would fall within the aforementioned definition of the Terrorist Act. The Bench stated,

“It does not include gold as the words employed in the Sub-clause specifically mention about production or smuggling or circulation of high quality counterfeit Indian paper currency or coin and therefore gold cannot be grouped along with paper currency or coin even though gold is a valuable substance and has a great potential to get converted into cash.”

 Differentiating the judgment of Rajasthan High Court in Mohammed Aslam v. Union of India, 2021 SCC OnLine Raj 117, wherein it was held that smuggling of gold with intent to threaten or likely to threaten the economic security of the country was covered under the smuggling of “any other material”, the Bench said, it could be made out from the decision that no analysis of the provision was made by the Single Judge. Moreover, no specific reason had been stated for making the aforementioned observations.

Hence, the Bench affirmed the view hold by the Trial Judge that the materials produced before the court at that point of time were insufficient to hold prima facie that the accused persons had committed a terrorist act. Therefore, it had been held that there was no reason to think that the accused to whom bail had been granted will flee from justice or meddle with the investigation. Consequently, the appeal was dismissed and the bail order was affirmed.[Muhammed Shafi P., v. National Investigation Agency, 2021 SCC OnLine Ker 902, decided on 18-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, Surya Kant* and Anirudhha Bose, JJ  has refused to interfere with the bail granted by Kerala High Court to KA Najeeb arrested under the Unlawful Activities (Prevention) Act, 1967 but has imposed the condition that Najeeb shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. He shall also refrain from participating in any activity which might enrage communal sentiments.

“In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith.”

Why was Najeeb arrested?

One Professor TJ Joseph while framing the Malayalam question paper for the second semester B.Com. examination at the Newman College, Thodupuzha, had included a question which was considered objectionable against a particular religion by certain sections of society.

On 04.07.2010, Najeeb along with some other members of Popular Front of India (PFI) had chopped¬off the professor’s right palm with choppers, knives, and a small axe. Country-made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the victim. As per records, over the course of investigation it emerged that the attack was part of a larger conspiracy involving meticulous pre-planning, numerous failed attempts and use of dangerous weapons.

Najeeb was arrested on 10.04.2015 and a chargesheet was re-filed by the National Investigation Agency against him, pursuant to which he is now facing trial.

Analysis

When can bail be cancelled?

At the outset, the Court clarified that there is a vivid distinction between the parameters to be applied while considering a bail application, vis-à-vis those applicable while deciding a petition for its cancellation.

“Bail once granted by the trial Court, could   be   cancelled   by   the   same   Court   only   in   case   of   new circumstances/evidence, failing which, it would be necessary to approach the Higher Court exercising appellate jurisdiction.”

Why did the High Court grant bail?

The High Court in the instant case had not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43-D(5) of UAPA are alien to him. It instead had exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43-D (5) of UAPA.

“… gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail.[1]

Consideration by the Supreme Court

  • Najeeb has been in jail for much more than five years.
  • There are 276 witnesses left to be examined.
  • Charges have been framed only on 27.11.2020.
  • Two opportunities were given to the NIA who has shown no inclination to screen its endless list of witnesses.
  • Of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years’ rigorous imprisonment. Hence, it can be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark.

“Given that two-third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.”

Further, the presence of statutory restrictions like Section 43-D (5) of UAPA  per-se  does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.

“Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43¬D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

The Court also reiterated that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter.

“Owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.”

Further, the Court also noticed that Section 43­D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre­condition under the UAPA. Instead, Section 43­D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well­settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc.

Though the Court noted that the charges levelled against the respondent are grave and a serious threat to societal harmony, however, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail.  Hence, the Court upheld the decision of the High Court attempting to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of the Constitution have been well protected.

[Union of India v. KA Najeeb, 2021 SCC OnLine SC 50, decided on 01.02.2021]


*Justice Surya Kant has penned this judgment 

[1] Shaheen Welfare Association v. Union of India, (1996) 2 SCC 616

Case BriefsSupreme Court

Supreme Court: Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

Going into the legislative intent, the Court noticed that Section 167(2) was enacted providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail.

“… the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused.”

Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. Hence,

“Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21.”

Further, in case of any ambiguity in the construction of a penal statute, the Courts must favour the   interpretation which leans towards protecting the rights of the accused, given the ubiquitous   power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.

The Court, hence, concluded as follows:

  • Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.
  • The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
  • Where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.
  • Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

Earlier this month, in Bikramjit Singh v. State of Punjab2020 SCC OnLine SC 824, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

[M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2020 SCC OnLine SC 867, decided on 26.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Right to default bail

Explaining the law on grant of default bail, the Court said that so long as an application for grant of default bail is made on expiry of the period of 90 days, which application need not even be in writing, before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed.

“So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.”

Power of the Court to extend the period of 90 days up to a maximum period of 180 days

The Court was dealing with the question relating to extension of time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the Unlawful Activities (Prevention) Act, 1967 (UAPA). It, hence, discussed at length, the scheme of the statutes.

Section 167 CrPC

Section 167 CrPC makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days. The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

Section 43-D(2)(b) of UAPA

Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if “the Court” is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days.

“Court” under UAPA

Before the National Investigation Agency Act, 2008 (NIA Act) was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions.

However, this Scheme has been completely done away with by the NIA Act as all scheduled offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.

“In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone.”

Hence, for offences under the UAPA, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself.

[Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824, decided on 12.10.2020]

NewsTreaties/Conventions/International Agreements

The Central Board of Direct Taxes (CBDT) entered into 14 Unilateral Advance Pricing Agreements (UAPA) and 2 Bilateral Advance Pricing Agreements (BAPA). The 2 bilateral APAs have been entered into with the United States of America. With the signing of these, the total number of APAs entered into by the CBDT has gone up to 219. This includes 199 Unilateral APAs and 20 Bilateral APAs. A total of 67 APAs (9 Bilateral and 58 Unilateral) have been signed in the F.Y.2017-18.

These 16 APAs entered into during March, 2018 pertain to various sectors of the economy like Telecommunication, Information Technology, Automobile, Pharmaceutical, Beverage, Trading, Manufacturing and Banking, Finance & Insurance. The international transactions covered in these agreements include payment of royalty fee, provision of business support services, provision of corporate guarantee, contract manufacturing, provision of marketing support services, provision of engineering design services, provision of engineering support services, merchanting trade of agro commodity, import/export of components, provision of IT services, provision of IT enabled services, provision of investment advisory services, availing of technical services, etc.

The progress of the APA scheme strengthens the Government’s resolve of fostering a non-adversarial tax regime. The Indian APA programme has been appreciated nationally and internationally for being able to address complex transfer pricing issues in a fair and transparent manner.

[Press Release no. 1527436]

Ministry of Finance