Brief Facts
- In this Appeal the NIO investigated a module of the banned terrorist organization that aimed to further the Khalistan separatist movement. Accused were arrested after being linked to terrorist activities, including attempts to procure weapons.
- The appellant’s involvement was based on a disclosure statement by a co-accused, describing a trip to procure weapons. The Special Judge dismissed his bail, and the High Court upheld this decision, citing the severity of the charges and the unexamined status of protected witnesses. Therefore, this appeal was filed against the decision.
Issues
- Principles governing Bail in UAP Act Cases
Held
- The Apex Court rejected the Bail Application after concluding tha the material available on record prima facie indication of complicity of the accused as a part of the conspiracy towards the commission of a preparatory act towards the commission of terrorist act under section 18 of the UAP Act.
- The Apex Court further relied on the principles laid down in the case of National Investigation Agency vs Zahoor Ahmad Shah Watali (2019) for considering the bail application under UAPA.
Scope of Bail under UAP Act Cases
- The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase – ‘bail is the rule, jail is the exception’ – unless circumstances justify otherwise – does not find any place while dealing with bail applications under UAP Act. The ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)– ‘shall not be released’ in contrast with the form of the words as found in Section 437(1) CrPC – ‘may be released’ – suggests the intention of the Legislature to make bail, the exception and jail, the rule.
- The 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 scrutinising 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.
- In this background, the test for rejection of bail is quite plain. Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied – that the Courts would proceed to decide the bail application in accordance with the ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence). This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.
Enquiry to be undertaken while considering the bail under UAPA
- On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test :
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offence under Chapter IV or VI of the UAP Act
1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)?
On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself :
2.1 Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused tampering with the evidence?
2.3 Whether there is apprehension of accused influencing witnesses?”
- The question of entering the ‘second test’ of the inquiry will not arise if the ‘first test’ is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the ‘tripod test’.
Relevant Paras
- 18, 19, 20, 21, 22, 23