Summary
Bail granted to eight accused in a PFI-related UAPA prosecution was set aside because the collected material made the accusations prima facie true under Section 43D(5). The High Court wrongly required evidence of a completed terrorist act despite charges encompassing conspiracy and preparatory conduct. Custody of about eighteen months did not warrant the delay-based relief sought on these facts. Immediate surrender and expeditious, independent trial were directed.
Issues
- Whether the prosecution material satisfied the prima facie UAPA bail restriction.
- Whether Section 18 required an actually completed terrorist act.
- Whether short custody relative to the cited delay cases justified constitutional bail.
- Whether the challenge required post-release supervening circumstances.
Provisions considered
- Section 43D(5), Unlawful Activities (Prevention) Act, 1967The court had to assess the case diary, report and material as a whole on broad probabilities, without a trial-like dissection or discarding material on final admissibility grounds. Reasonable grounds for prima facie truth barred release here. (¶¶ 9, 10, 11, 12, 13, 16, 17, 19, 22)
- Section 18, read with Section 15, Unlawful Activities (Prevention) Act, 1967Conspiracy, attempt, specified facilitation or preparatory acts may attract Section 18 without actual commission of a terrorist act. The High Court applied an incorrect completed-act requirement. (¶ 18)
- Article 21, Constitution of IndiaThe Court recognised constitutional bail power for prolonged incarceration but distinguished the cited cases because custody here was about one and a half years and the record contained antecedents and substantial prima facie material. (¶¶ 20, 21, 22)
- Order XXII, Rule 2(2) and (3), Supreme Court Rules, 2013The earlier special leave proceeding concerned another accused’s bail order, not the judgment impugned here, so these appeals were not barred as an undisclosed second challenge to the same order. (¶ 5)
Held
- A challenge to the legality of an original bail grant differs from cancellation based on later misconduct. The former examines arbitrary discretion or perversity in the grant itself and does not require post-release circumstances such as witness interference or absconding. (¶¶ 8, 22)
- Under the Watali approach applied here, the court considers the total investigative material and case diary together on broad probabilities. It must give reasons concerning prima facie involvement but not decide final reliability or admissibility by dissecting the evidence as at trial. (¶¶ 10, 11, 12, 13, 17, 19)
- Witness accounts and documentary/digital material described alleged recruitment, weapons training, organisation of camps and preparatory activity, with roles attributed individually to the respondents. Taken together, the Court held the accusations prima facie true for the statutory bail test; these were not final findings of guilt. (¶¶ 14, 15, 16, 17, 22, 24)
- Section 18 does not demand proof that the accused actually completed a terrorist act. Material of conspiracy, attempt or preparatory conduct may suffice to attract it. The High Court’s insistence on actual commission overlooked the charges and misconceived the relationship between Sections 15 and 18. (¶ 18)
- The Court distinguished K.A. Najeeb and other long-incarceration cases on the facts, including approximately eighteen months’ custody here, the antecedents recorded in the chargesheet and the prima facie material. It therefore found no basis for the High Court’s grant despite Section 43D(5). (¶¶ 20, 21, 22)
- The earlier special leave petition against a co-accused’s separate bail order did not make these proceedings a prohibited second petition against the same judgment. The preliminary objection under the Supreme Court Rules failed. (¶ 5)
- The bail order was set aside and respondents directed to surrender forthwith before the NIA. The Special Court must proceed expeditiously according to law and remain uninfluenced by the Supreme Court’s observations in the bail decision. (¶¶ 24, 25)
Result
Appeals allowed; High Court bail order set aside. Respondents to surrender forthwith before NIA; Special Court to conduct an expeditious trial uninfluenced by these bail-stage observations.