Brief Facts
- An FIR was registered for the offence under Section 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with Section 34 of the Indian Penal Code, 1860 and Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967.
- The FIR was lodged regarding the violence, arson and stone-pelting near Bhima-Koregaon. The Appellant was not initially named in the FIR; however, he was arrested during the investigation on the allegations of his alleged involvement with the CPI (Maoist), which is an organization placed in the First Schedule of UAPA as terrorist organization.
Issues
- Whether mere membership of a banned organization constitutes an offence the UAPA?
- Whether merely holding certain literature through which violent acts may be propagated would attract the provisions of Section 15(1)(b) of the UAPA?
Held
- Supreme Court allowed the Bail Application.
No prima Facie case found to be proven against appellant under the UAPA Act
- Barring Section 13, all the offences with which the appellants have been charged with under the 1967 Act fall within Chapters IV and VI of the said statute. This is apart from the offences under the 1860 Code. Hence, there is a duty of the Court to form an opinion on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure, 1973 (“1973 Code”) that there are reasonable grounds for believing that the accusations against such persons are prima facie true while considering the prayer for bail, to reject prayers for bail of the appellants. The manner in which the Court shall form such opinion has been laid down by this Court in the case of National Investigation Agency vs Zahoor Ahmad Shah Watali (2019) 5 SCC 1.
- As it would be evident from the analysis of the evidence cited by the NIA, the acts allegedly committed by the appellants can be categorised under three heads. The first is their association with a terrorist organisation which the prosecution claims from the letters and witness statements, particulars of which we have given above. But what we must be conscious of, while dealing with prima facie worth of these statements and documents is that none of them had been seized or recovered from the appellants but these recoveries are alleged to have been made from the co-accused. The second head of alleged offensive acts of the appellants is keeping literatures propagating violence and promoting overthrowing of a democratically elected government through armed struggle. But again, it is not the NIA’s case that either of the two appellants is the author of the materials found from their residences, as alleged. None of these literatures has been specifically proscribed so as to constitute an offence, just by keeping them. Thirdly, so far as AF is concerned, some materials point to handling of finances. But such finances, as per the materials through which the dealings are sought to be established, show that the transaction was mainly for the purpose of litigation on behalf of, it appears to us, detained party persons. The formation of or association with a legal front of the banned terrorist organisation has also been attributed to AF, in addition. The High Court while analysing each of these documents individually did not opine that there were reasonable grounds for believing that the accusations against such persons were not prima facie true. Those offences which come within Chapters IV and VI of the 1967 Act, charged against the appellants, are Sections 16, 17, 18, 18B, 20, 38, 39 and 40. We have summarised the nature of allegations reflected in the chargesheet as also the affidavit of the NIA. Now we shall have to ascertain if on the basis of these materials, the prosecution has made out reasonable grounds to persuade the Court to be satisfied that the accusations against the appellants are prima facie true. There is charge under Section 13 of the 1967 Act and certain offences under the 1860 Code against the appellants also. But we shall first deal with the appellants’ case in relation to charges made against them under the aforesaid provisions.
- In none of the materials which have been referred to by the prosecution, the acts specified to in sub-clause (a) of Section 15(1) of the 1967 Act can be attributed to the appellants. Nor there is any allegation against them which would attract subclause (c) of Section 15(1) of the said statute. As regards the acts specified in Section 15(1) (b) thereof, some of the literature alleged to have been recovered from the appellants, by themselves give hint of propagation of such activities. But there is nothing against the appellants to prima facie establish that they had indulged in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so. Neither there is allegation against them of causing death of any public functionary or attempt to cause death of such functionary. Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b) of the said Act. Thus, prima facie, in our opinion, we cannot reasonably come to a finding that any case against the appellants under Section 15(1) (b) of 1967 Act can be held to be true.
Mere membership of terrorist organization is not sufficient
- In this context, to bring the appellants within the fold of Section 38 of the 1967 Act, the prosecution ought to have prima facie establish their association with intention to further the said organisation’s terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation. But there must be intention to further the activities of such organisation on the part of the person implicated under such provision. But the same line of reasoning in respect of membership of a terrorist organisation under Section 20, ought to apply in respect of an alleged offender implicated in Section 38 of the 1967 Act. There must be evidence of there being intention to be involved in a terrorist act. So far as the appellants are concerned, at this stage there is no such evidence before us on which we can rely.
No bar on constitutional courts to grant the bail for offence under UAPA Act.
- Observation of this Court has been that the Court ought to carefully examine every case, before making an assessment if the Act would apply or not. When the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act. Though these judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle would apply in respect of the 1967 Act as well.
- In the case of Zahoor Ahmad Shah Watali (supra), it has been held 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 chargesheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth.
- The second set of materials include the witness statements. There also no covert or overt act of terrorism has been attributed to the appellants by the three witnesses. We have dealt with the summary of their statements earlier in this judgment. We have also observed earlier that mere possession of the literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 Act.
- We have already analysed Sections 38 and 39 of the 1967 Act. The interpretation given by us to the phrase “intention to further activities” of terrorist organisation could also apply in the same way in relation to Section 39 of the same statute. There has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43D (5) of the 1967 Act.
- As far as raising funds for a terrorist organisation is concerned, we do not think at this stage, in absence of better evidence, the account statement is credible enough to justify invoking the bail-restricting clause by attracting Section 40 of the 1967 Act.
- We are returning these findings as the restrictions on the Court while examining the question of bail under the 1967 Act is less stringent in comparison to the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. We are not called upon, for granting a bail to an accused with commercial quantity of contraband article under the 1985 Act, to satisfy ourselves that there are reasonable grounds for believing that an accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Here, we have to satisfy ourselves that the specified offences alleged to have been committed by the appellants cannot be held to be prima facie true.
- The fundamental proposition of law laid down in Union of India vs K.A. Najeeb (2021) 3 SCC 713, that a bail restricting clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in a given case would breach the concept of liberty enshrined in Article 21 of the Constitution of India, would apply in a case where such a bail-restricting clause is being invoked on the basis of materials with prima facie low-probative value or quality.
Factors for granting bail
Nature and seriousness of the offences, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tempered with; the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the appellants’ case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act.
Relevant Para No.
9, 25, 26, 27, 30, 31, 32, 33, 34, 35, 36 37, 38, 39, 40, 41, 42, 43