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Supreme Court Overturns Default Bail in High-Stakes Terrorism Case

Case Title – State of NCT of Delhi vs. Raj Kumar @ Lovepreet @ Lovely

Case No. – SLP(CRL.) No. 2503 of 2021

Dated on – 3rd January, 2024

Quorum – Hon’ble Justice Vikram Nath and Hon’ble Justice Rajesh Bindal

Facts of the Case –

First Information Report (FIR No. 154 of 2020) was registered on June 16, 2020, at the Special Cell, New Delhi, against Raj Kumar for offenses under Sections 13, 18, and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA); Sections 201 and 120-B of the Indian Penal Code, 1860 (IPC); and Sections 25, 54, and 59 of the Arms Act, 1959. Raj Kumar was arrested on June 18, 2020, and was initially remanded to police custody for three days, followed by judicial custody, and has since been held in Mandoli Jail, New Delhi. The initial 90-day period for investigation expired on September 15, 2020. Before this period ended, the Investigating Officer (IO) obtained an order on September 11, 2020, extending the investigation period by two months until November 11, 2020. As the investigation was incomplete by this date, and no police report under Section 173(2) of CrPC, 1973 was filed, another extension was sought by the Public Prosecutor on November 7, 2020, for an additional 30 days under Section 43D(2)(b) of UAPA, citing pending sanctions and awaited forensic reports. This extension was granted by the trial court on November 10, 2020, extending the investigation period until November 30, 2020. The investigation was completed, and a police report was filed on November 26, 2020. Raj Kumar filed for bail under Section 167 CrPC on November 11, 2020, which the trial court rejected on November 17, 2020. He then approached the High Court under Section 482 CrPC, which set aside the orders of September 11, 2020, and November 10, 2020, and granted him default bail. The State of NCT of Delhi appealed this decision before the Hon’ble Supreme Court of India.

Legal Provisions –

  • Section 173(2) of CrPC, 1973
  • Section 45 of UAPA, 1967

Contentions of the Appellant –

The appellant, State of NCT of Delhi, contended that the High Court erred in granting default bail to the respondent, Raj Kumar, by incorrectly applying the legal principles and precedents. The appellant argued that the High Court improperly relied on the judgment in Hitendra Vishnu Thakur v. State of Maharashtra, which pertains to the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), rather than the applicable provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The appellant emphasized that the provisions under Section 43D(2)(b) of UAPA allow for extensions of the investigation period beyond 90 days, up to a maximum of 180 days, if certain conditions are met. These conditions include demonstrating the progress of the investigation, providing specific reasons for the necessity of detention beyond 90 days, and completing the investigation. The appellant maintained that these conditions were adequately met and detailed in the application for extension, which was supported by the Public Prosecutor’s report. Additionally, the appellant contended that the High Court erroneously found that the necessary sanctions had already been obtained before the application for extension was filed, when in fact, some sanctions were still pending. The appellant also highlighted that the seriousness of the offenses involving terrorism and their extensive implications necessitated a thorough investigation, which justified the extensions granted by the trial court. The appellant concluded that the High Court’s decision to grant default bail was based on incorrect factual and legal premises, warranting its reversal by the Supreme Court.

Contentions of the Respondent –

The respondents contended that his right to default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC), was violated due to the prosecution’s failure to complete the investigation within the prescribed period of 90 days. He argued that the extensions granted by the trial court were not justified as they were based on insufficient and invalid grounds. The respondent asserted that the necessary sanctions required for the investigation under the Unlawful Activities (Prevention) Act, 1967 (UAPA), were already obtained prior to the prosecution’s request for additional time. Thus, there was no valid reason for the extension of the investigation period. Furthermore, the respondent relied on the precedent set in Hitendra Vishnu Thakur v. State of Maharashtra, arguing that extensions under such special legislations should be granted only for valid reasons explicitly mentioned in the statute, which, according to him, were not present in his case. He also claimed that the delay in obtaining forensic reports and other administrative reasons cited by the prosecution did not constitute valid grounds for extension under Section 43D(2)(b) of UAPA. The respondent maintained that the High Court correctly interpreted the legal provisions and found that his detention beyond the initial 90-day period was unlawful, thus entitling him to default bail. Therefore, he contended that the High Court’s order should be upheld, and the appeal by the State of NCT of Delhi should be dismissed.

Court Analysis and Judgement –

The Hon’ble Supreme Court, upon hearing the contentions of both parties, analysed the relevant legal provisions and precedents to determine the correctness of the High Court’s decision to grant default bail to the respondent. The Court noted that the High Court had erroneously relied on the judgment in Hitendra Vishnu Thakur v. State of Maharashtra, which pertained to the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), and was not directly applicable to the provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Court clarified that Section 43D(2)(b) of UAPA permits extensions of the investigation period up to 180 days if specific conditions are met, including demonstrating the progress of the investigation and providing specific reasons for the necessity of detention beyond 90 days. The Supreme Court found that the Public Prosecutor’s application for extension, dated November 7, 2020, was supported by valid reasons, including pending sanctions under Section 45(2) of UAPA and the awaited forensic report. These reasons were adequately explained and justified the need for further investigation time. The Court further observed that the investigation had been completed, and the police report under Section 173(2) CrPC was filed within the extended period, prior to November 30, 2020. The Court also addressed the High Court’s incorrect factual finding that all necessary sanctions had been obtained before the extension request, clarifying that some sanctions were still pending at the time. Additionally, the Supreme Court emphasized the seriousness of the offenses, involving terrorism with implications beyond national borders, underscoring the necessity for a thorough investigation. In conclusion, the Supreme Court held that the High Court had committed an error in granting default bail to the respondent based on incorrect legal and factual premises. Therefore, the Supreme Court allowed the appeal, set aside the High Court’s order, and directed that the respondent be taken into custody if not already detained.

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Judgement Reviewed by – Anurag Das

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SC criticizes HC ruling in Terrorism conspiracy case: Also clarified for charge under section 18 of UAPA, showing involvement in the actual commission of a terrorist act under Section 15 of UAPA is not necessary.

CASE TITLE – Union of India v. Barakathulla Etc.

CASE NUMBER – CRIMINAL APPEAL NOS. 2715 – 2719 OF 2024

DATED ON – 22.05.2024

QUORUM – Justice Belam M. Trivedi & Justice Pankaj Mithal

 

FACTS OF THE CASE

The Central Government in Ministry of Home Affairs, CTCR Division having received credible information that the office bearers, members and cadres of Popular Front of India (PFI), an extremist Islamic organization have been spreading its extremist ideology across Tamil Nadu, by establishing State Headquarters at Purasaiwakkam, Chennai and also offices in various districts of Tamil Nadu and that through their frontal Organizations like Campus Front of India, National Women’s Front, Social Democratic Party of India etc., they conspire for committing terrorist acts, raise funds for committing terrorist activities and recruit members for furthering their extremist ideology, and that the frontal organizations and PFI were involved in the recruitment of members to various prescribed terrorist organizations, passed an order on 16th September 2022, in exercise of the powers conferred under sub-section (5) of Section 6 read with Section 8 of the National Investigation Agency Act, 2008 (hereinafter referred to as the ‘NIA Act’), directing the National Investigation Agency to take up investigation of the said case. In view of the said order, an FIR being RC-42/2022/NIA/DLI came to be registered on 19.09.2022 against the present respondents and other members and office bearers of PFI for the offences under Section 120(b), 153(A). 153(AA) of IPC and Section 13,17,18,18(B), 38 and 39 of the Unlawful Activities (Prevention) Act, 1957 (hereinafter referred to as the “UAPA”).

During the course of the investigation, the respondents/accused were arrested on 22.09.2022 for the alleged offences and had filed for bail applications before the Special Court (Sessions Court for Exclusive Trial of Bomb Blast Cases). The Special Court after considering the case diary, the documents and material produced before it, and after having been satisfied about the prima facie case made out against the respondents-accused as also considering the provisions of Section 43D of the UAPA in the light of the position of law settled by this Court in various decisions, dismissed the said bail applications filed by the respondents. Being aggrieved by the said orders, the respondents filed Criminal Appeals before the High Court of Judicature at Madras. During the pendency of the said Appeals, the chargesheet came to be filed by the appellant, NIA against all the respondents along with other accused on 17.03.2023 for the offences under Sections 120B, 121A, 122, 153A, 505(1)(b), (c), (2) of IPC and Sections 13,18, 18A, 18B of UAPA. The High Court after taking into consideration the submissions made and materials placed on record including the Chargesheet, allowed the said Appeals by the common impugned order dated 19.10.2023, releasing the respondents on bail subject to the conditions mentioned therein. Being aggrieved by the said order, appeals had been filed at the Hon’ble Supreme Court by the Union of India through NIA, Chennai Branch.

ISSUES

Whether the High Court was justified in granting bail despite serious charges against the accused under UAPA?

 

LEGAL PROVISION

Section 13 of the Unlawful Activities (Prevention) Act, 1967, prescribes the punishment for unlawful activities.

Section 18 of the Unlawful Activities (Prevention) Act, 1967, prescribes what can be considered as conspiracy to commit a terrorist act.

Section 43D of the Unlawful Activities (Prevention) Act, 1967, prescribes the special provisions as to make bail.

Section 8 of the National Investigation Agency Act, 2008, prescribes the power of the NIA to investigate connected offences.

 

CONTENTIONS BY THE APPELLANT

The Learned Counsel for the Appellant had vehemently submitted that the High Court had miserably failed to comprehend the correct import of Section 18 read with the definition of terrorist act contemplated under Section 15 of the UAPA for releasing the respondents on bail who have been charged with very serious offences. According to him, the High Court had fallen into patent and manifest error in not appreciating the overt acts and commission of alleged offences by the respondents, as stated by the listed witnesses/protected witnesses. He plced heavy reliance on the statements of the protected witnesses/listed witnesses had taken the court to the said statements to show the role and involvement of each of the respondents in the commission of the alleged offences under the IPC and UAPA. He further submitted that the High Court has committed grave error in trivializing the serious allegations made against the respondents by holding that except the witnesses having stated about respondents organizing weapon training for using knives and swords and to train members to throw beer bottles filled with water on targets, there is no material to suggest the commission of any offence which falls under Section 15 of UAPA, whereas all these alleged acts were part of the preparation of committing terrorist acts, particularly when the respondents were imparting training as to how to hurl bombs by using water-filled beer bottles and how to use weapons like knives and swords to strike terror in the mind of people.

 

CONTENTIONS BY THE RESPONDENT

The learned Senior Counsels appearing for the Respondents had emphatically submitted that the reliance of the appellant on the statements made by the protected/listed witnesses was highly improper as the said witnesses themselves had participated in the alleged commission of offences. According to them, the vague allegations made by the said witnesses, could not be relied upon, more particularly when there was no material brought on record to show any preparatory work done by the respondents to prima facie make out the case against the respondents. They also relied upon the observations made by the High Court in the impugned order to submit that the High Court had in detail considered the evidence collected by the appellant during the course of the investigation and having not found substance in the same has released the respondents on bail which order should not be interfered with. Relying upon various decisions of this Court, they submitted that the impugned order having been passed by the High Court exercising its discretion, could neither be said to be illegal nor unjust.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court mainly focused on first interpreting the exact meaning of the provision, specifically, Sections 15 which defines “Terrorist Acts” and 18, which defines the punishment for “Conspiracy”, etc to commit a terrorist act. They further referred to earlier precedents, the first one being National Investigation Agency vs. Zahoor Ahmad Shah Watali, where it was stated that “the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. 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.” The Hon’ble Supreme Court in the present case believed that the material collated and statements of witnesses recorded also show prima facie complicity of the respondents/accused in the commission of the alleged offences, which material/evidence is good and sufficient on its face to establish the facts constituting the alleged offences, and stated that the High Court has committed gross error in not considering the material/evidence in it’s proper perspective and in recording a perverse finding to the effect that there was no material to suggest the commission of any offence, which falls under Section 15 of UAPA, and that the prosecution had not produced any material about the involvement of any of the respondents-accused in any terrorist act or as a member of a terrorist gang or organization or training terrorism. They further stated that for attracting Section 18, the involvement of the accused in the actual commission of terrorist act as defined in Section 15 need not be shown. The Hon’ble Supreme Court then held that the impugned order passed by the High Court is set aside and that the respondents should surrender themselves before the appellant, NIA, and stated that since the Chargesheet had already been submitted to the Special Court, they were directed to proceed with the trial as expeditiously as possible and in accordance with law, without being influenced by any of the observations made by this Court in this order.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Bail is an exception not a rule under UAPA Act as section 43D uses the term “shall not be released”: Supreme Court

Title: GURWINDER SINGH VERSUS STATE OF PUNJAB & ANOTHER

CRIMINAL APPEAL NO.704 of 2024

Date of Judgment: February 07, 2024

CORAM: Justice M.M. Sundresh & Justice Aravind Kumar

Facts of the Case:

The case began on October 19, 2018, when Sh. Varinder Kumar, Inspector, CIA Staff, received secret information about two individuals hanging cloth banners advocating for “Khalistan Jindabad” and “Khalistan Referendum 2020” at Pillars Kot Mit Singh Flyover, Amritsar. The police apprehended Sukhraj Singh and Malkeet Singh on the spot and registered a case against them under various sections of the Indian Penal Code (IPC). Subsequent investigation led to the arrest of several other individuals allegedly involved in a module of the banned terrorist organization “Sikh for Justice.”

The investigation uncovered the receipt of funds through illegal means from the banned organization “Sikhs for Justice,” which were intended for furthering the separatist ideology of Khalistan and carrying out terrorist activities. The National Investigation Agency (NIA) took over the investigation due to the severity of the charges involved.

The involvement of the present appellant, Gurwinder Singh, emerged from the disclosure statement of a co-accused, Bikramjit Singh, recorded while in NIA custody. According to this statement, Gurwinder Singh accompanied Bikramjit Singh and another individual to Srinagar with the intention of purchasing a pistol. However, they were unable to obtain one and were offered RDX instead, which they declined.

Gurwinder Singh’s own disclosure statement corroborated this narrative, stating that he initially refused to accompany his childhood friend Harpreet Singh to Srinagar but eventually agreed after continuous insistence.

Gurwinder Singh’s bail application was dismissed by the trial court, citing reasonable grounds to believe the accusations against him. This decision was upheld by the High Court of Punjab and Haryana, which also noted the seriousness of the offense and the non-examination of protected witnesses.

The present appeal challenges the orders of both the trial court and the High Court, seeking bail for Gurwinder Singh in the NIA case. The appellant contends that the refusal of bail is unjustified given the circumstances of the case.

Laws Involved:

  • Section 439 of the Code of Criminal Procedure, 1973
  • Sections 124A, 153A, 153B, 120-B of the Indian Penal Code, 1860
  • Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act, 1967
  • Sections 25 and 54 of the Arms Act, 1959

Issues raised by the Court:

Whether or not lower court’s decision for rejection of bail justified under Section 43D of UAP Act?

Courts Judgment and Analysis:

The court’s analysis of the bail application in the present case involved a thorough examination of legal provisions, judicial precedents, and the material available on record. The court began its analysis by highlighting the significance of Section 43D (5) of the Unlawful Activities Prevention (UAPA) Act, which imposes stringent restrictions on granting bail for offenses under Chapters IV and VI of the Act. This section mandates that a person accused of such offenses cannot be released on bail unless the Public Prosecutor has been heard, and if the court finds reasonable grounds to believe that the accusations are prima facie true based on the case diary or the report under Section 173 of the Code of Criminal Procedure (CrPC).

The court emphasized that bail under the UAP Act is not governed by the conventional principle that “bail is the rule, jail is the exception.” Instead, bail is considered an exception, with the legislative intention being to prioritize detention over release. This is evident from the language of Section 43D(5), which uses mandatory language (“shall not be released”) as opposed to discretionary language found in other bail provisions.

They elucidated a twin-prong test for deciding bail applications under the UAP Act. Firstly, the court must assess whether there are reasonable grounds to believe that the accusations are prima facie true, based on an examination of the case diary and final report. Secondly, even if the first test is satisfied, the court must consider general principles of bail under Section 439 of the CrPC, including flight risk, tampering with evidence, and influencing witnesses.

Drawing from judicial precedents such as Zahoor Ali Watali’s case, the court outlined guidelines for assessing the prima facie truth of accusations. It stressed that at the pre-charge sheet stage, the court’s satisfaction is lighter than at subsequent stages, such as post-charge sheet or post-charges. The court emphasized that the assessment should be based on broad probabilities, without detailed evaluation of evidence.

Moreover, the court emphasized the importance of considering the material on record as a whole, rather than analyzing individual pieces of evidence piecemeal. It highlighted that the contents of documents must be presumed true at this stage, and the admissibility of documents relied upon by the prosecution cannot be questioned.

Applying these principles to the present case, the court analyzed the material on record, including communication patterns, disclosure statements, and the nature of charges. Ultimately, the court concluded that the material prima facie indicated the accused’s complicity in conspiracy under Section 18 of the UAP Act. Consequently, the court rejected the bail application and upheld the lower courts’ decisions.

In conclusion, the court’s analysis underscored the stringent bail provisions under the UAP Act and provided a comprehensive framework for assessing bail applications in terrorism-related cases. The court’s ultimate holding was to reject the appellant’s bail application, affirming the lower courts’ decisions.

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Written by- Aditi

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