Summary
The Supreme Court granted bail to an alleged PFI member charged under the IPC and the UAPA, holding that on the chargesheet and the protected witnesses' statements there were no reasonable grounds to believe the accusations prima facie true, so Section 43-D(5) UAPA did not bar bail. It also held that over two years and four months of custody, with charges not framed and 354 witnesses cited, attracted Article 21; its co-accused had been granted bail on almost the same material.
Issues
- Whether, on the chargesheet and the statements of protected witnesses, there were reasonable grounds for believing the accusations against the appellant under the UAPA to be prima facie true, attracting the bar on bail in Section 43-D(5).
- Whether long pre-trial incarceration with no likelihood of early conclusion of trial entitled the appellant to bail under Article 21 despite the statutory restrictions.
- Whether the appellant was entitled to parity with the co-accused who had been granted bail on similar material.
Provisions considered
- Section 43-D(5), Unlawful Activities (Prevention) Act, 1967Following Zahoor Ahmad Shah Watali, the Court examined the chargesheet and case diary as they stood, on broad probabilities, and found no reasonable grounds to believe the accusations prima facie true; the bar on bail therefore did not apply. It also held, following K.A. Najeeb, that the restriction must be harmonised with Article 21. (¶¶ 17, 18, 19, 31)
- Section 2(m) and First Schedule, Unlawful Activities (Prevention) Act, 1967The Court noted that the PFI has not been declared a terrorist organisation within the meaning of Section 2(m) and is not listed in the First Schedule, and that the chargesheet did not allege the appellant was a member of a terrorist gang or organisation. (¶ 27)
- Article 21, Constitution of IndiaGross delay in trial and prolonged incarceration of an undertrial were treated as violating the right to a speedy trial, which, with the passage of time, takes precedence over strict statutory bail restrictions; applied to custody exceeding two years and four months with charges not framed, 40 accused and 354 witnesses. (¶¶ 19, 20, 21, 32, 33)
Held
- Under Section 43-D(5) UAPA the court must examine the FIR, case diary and chargesheet, accept them as they stand, and decide on broad probabilities whether there are reasonable grounds for believing the accusations prima facie true; if not, the statutory bar is no impediment to bail. (¶ 18)
- At the initial stage courts must follow the legislative policy behind stringent bail provisions, but with the passage of time their effect is diluted by Part III; the right to a speedy trial can override the statutory bar, the seriousness of the charge is not by itself material as the accused is presumed innocent, and the period of incarceration is a relevant factor for constitutional courts. (¶¶ 19, 20, 21)
- On the material, protected witness Z attributed no active role to the appellant in the meetings of 29 May 2022 and 6-7 July 2022 beyond presence and tenancy of the premises, witness Y was silent on the nature of the meetings, and witness X only spoke of encouraging slogans at a protest; Zakat collection and recruitment occurred when the PFI was not banned, with no allegation of misuse of funds. Nothing prima facie attracted the UAPA offences, so the first test under Section 43-D(5) was satisfied. (¶¶ 25, 27, 28, 29, 30, 31)
- The Court referred to its finding in the co-accused's case that the chargesheet attributed to protected witness Z statements he did not make, and noted that the alleged incriminating documents were recovered from the second floor while the rent deed relied on by the prosecution showed only the first floor let to the appellant, raising doubt about the recovery. (¶¶ 26, 31)
- The appellant's case was almost identical to that of the co-accused building owner, who had been granted bail; once a case for bail is made out even under a stringent statute, courts cannot decline it, and denying bail in deserving cases violates Article 21. (¶¶ 24, 33)
Result
Appeal allowed; impugned High Court order set aside; appellant to be produced before the Special Court within 7 days and released on bail till conclusion of trial on terms fixed by that court after hearing the respondent; observations are tentative and have no bearing on the trial or on co-accused.