{"id":313939,"date":"2024-02-13T15:00:33","date_gmt":"2024-02-13T09:30:33","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=313939"},"modified":"2024-02-13T14:59:24","modified_gmt":"2024-02-13T09:29:24","slug":"supreme-court-illuminates-bail-under-section-43d-5-of-uapa-against-crpc","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/02\/13\/supreme-court-illuminates-bail-under-section-43d-5-of-uapa-against-crpc\/","title":{"rendered":"Supreme Court illuminates on bail under Section 43D (5) of UAPA against general rule of CrPC"},"content":{"rendered":"
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Supreme Court:<\/span> In an appeal challenging order passed by the Punjab and Haryana High Court on 24-04-2023 upholding the rejection of application under Section 439<\/a> of Criminal Procedure Code, 1973<\/a> for a matter involving offences under Sections 124-A<\/a>, 153-A<\/a>, 153-B<\/a>, 120-B<\/a> of the Penal Code, 1860<\/a> (‘IPC’), Sections 17<\/a>, 18<\/a>, 19<\/a> of the Unlawful Activities (Prevention) Act, 1967<\/a> (‘UAPA’) and Sections 25<\/a> and 54 of Arms Act, 1959<\/a>, the Division Bench of M.M. Sundresh and Aravind Kumar*<\/span>, JJ. refused to grant bail while explaining the rule against bail delineating provisions under UAPA as against general rule under CrPC.<\/p>\n

Factual Background<\/p>\n

On 19-10-2018, CIA Inspector received secret information of two persons hanging banners which read “Khalistan Jindabad” and “Khalistan Referendum 2020” at specific locations, who were accordingly apprehended on the spot and a case was registered. During investigation, entire module of banned terrorist organization ‘Sikhs for Justice’ got busted and other accused persons got arrested, including the appellant in the instant matter. A final investigation report against 11 accused persons was presented before the Trial Court.<\/p>\n

The matter was transferred to the National Investigation Agency (‘NIA’) which proceeded with the investigation as per the directions from Ministry of Home Affairs and charges were accordingly framed by NIA Special Judge. Investigation revealed about accused persons having received funds from members of ‘Sikhs for Justice’ through illegal means such as ‘Hawala’, to be used for promoting separatist ideology of demanding a separate State for Sikhs – ‘Khalistan’, and carrying out terror activities and activities like procuring weapons to spread terror in India. NIA Investigation also disclosed involvement of an ISI handler for operations of this module.<\/p>\n

The prima facie involvement of appellant was disclosed in the statement of one of the co-accused on 12-06-2020 while being in NIA custody. The Trial Court dismissed application under Section 439 stating ‘reasonable grounds to believe accusation against appellant to be true’, while the High Court rejected appeal against the same due to seriousness of nature of offence and for none of the protected witnesses being examined.<\/p>\n

Court’s Analysis<\/p>\n

The Court considered the bail provisions under Section 43-D(5)<\/a> of UAPA Act<\/a> and expressed that “source of the power to grant bail in respect of non-bailable offences punishable with death or life imprisonment emanates from Section 439 CrPC.” It further explained that Section 43-D(5)<\/a> of UAPA<\/a> Act modifies application of general provisions of bail w.r.t. offences punishable under Chapters IV and VI of the same.<\/p>\n

While highlighting the embargo on Special Court’s power to release an accused on bail as per the proviso to Section 43-D(5)<\/a> of UAPA<\/a>, the Court perused the language of the provision which was not traceable in any other statute. The Court explained that the conventional idea in bail jurisprudence that ‘bail is the rule, jail is the exception’ — unless circumstances justify was restrictive in scope for UAPA cases. It further referred to NIA<\/span> v. Zahoor Ahmad Shah Watali<\/span>, (2019) 5 SCC 1<\/a> and elaborated that “courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The ‘justifications’ must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, ‘prima facie’ standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinizing the justifications [materials on record]. This standard can be contrasted with the standard of ‘strong suspicion’, which is used by Courts while hearing applications for ‘discharge’.”<\/span><\/p>\n

The Court explained that rejection of bail was the rule in such matters, if the public prosecutor, and the Court after perusal of final report or case diary concluded that there were reasonable grounds for believing the accusations to be prima facie true, and if the test for rejection of bail was not satisfied that the Courts proceed through ‘tripod test’ – flight risk, influencing witnesses, tampering with evidence as clarified by Section 43D (6). The Court listed the pointers for inquiry to be undertaken by the bail court while deciding UAPA bail applications through a twin-prong test:<\/p>\n

1) Whether the test for rejection of the bail is satisfied?<\/p>\n