Summary
The Supreme Court granted bail to a retired police constable accused under Sections 13, 18, 18A and 20 of the UAPA. The case against him was that the first floor of a building owned by his wife had been let to a co-accused and used for PFI activities. Taking the charge sheet as it stood, the Court found no reasonable grounds under Section 43D(5) to believe the accusations prima facie true, noting that the charge sheet misreported a protected witness's statement. It reiterated that bail is the rule even under stringent statutes once the statutory conditions are met.
Issues
- Whether, on the material in the charge sheet, there were reasonable grounds for believing that the accusations against the appellant under Sections 13, 18, 18A and 20 of the UAPA were prima facie true within Section 43D(5).
- Whether letting out premises to a co-accused associated with PFI, without more, prima facie showed knowing facilitation of terrorist acts or membership of a terrorist organisation.
- How courts should approach bail under statutes imposing stringent conditions.
Provisions considered
- Section 43D(5), Unlawful Activities (Prevention) Act, 1967Read with Watali, Gurwinder Singh and Thwaha Fasal. The court must examine the charge-sheet material as it stands, without a mini-trial, to see whether there are reasonable grounds to believe the accusation prima facie true. On that test the appellant was held entitled to bail. (¶¶ 12, 13, 14, 15, 19)
- Section 13 read with Section 2(o), Unlawful Activities (Prevention) Act, 1967Nothing in the charge sheet showed that the appellant took part in, advocated, abetted or incited any unlawful activity as defined in Section 2(o). (¶ 16)
- Sections 18 and 18A, Unlawful Activities (Prevention) Act, 1967There was no material that the appellant was party to a conspiracy to commit a terrorist act or knowingly facilitated one. His son negotiated the letting of the premises, and there was no allegation that the appellant organised a camp for training in terrorism. (¶¶ 16, 17)
- Section 20 read with Sections 2(l) and 2(m), Unlawful Activities (Prevention) Act, 1967There was no allegation that the appellant belonged to a terrorist gang. A terrorist organisation under Section 2(m) is one listed in the First Schedule, and PFI is not listed, nor did the charge sheet name any listed organisation of which he was a member. (¶¶ 6, 18)
- Article 21, Constitution of IndiaDenying bail in deserving cases, including under statutes with stringent bail conditions, was held to violate the rights guaranteed by Article 21. (¶ 21)
Held
- Under Section 43D(5), the court must examine the material forming part of the charge sheet, taken as it is and without holding a mini-trial, to decide whether there are reasonable grounds for believing the accusation prima facie true. (¶¶ 13, 14, 15)
- The material, including the statements of the appellant and co-accused relied on by the prosecution, showed only that the first floor was let to a co-accused at a monthly rent negotiated by the appellant's son. The Rs 25,000 credited to the son's account was explained as part of the advance rent. The charge sheet showed no link between the appellant and PFI before the letting, and PFI is not a listed terrorist organisation. (¶¶ 6, 7)
- The alleged shifting of items before the raid did not support the prosecution. The charge sheet did not say what was shifted, the incriminating PFI material was still recovered from the premises, nothing was recovered from the appellant, and someone permitting such activities would not have installed CCTV cameras in the building. (¶¶ 8, 9)
- The charge sheet's account of protected witness Z's statement differed materially from the statement actually recorded before the magistrate. The recorded statement did not name the appellant among those attending the meeting and placed the alleged direction to kill in a later month. The charge sheet had attributed to the witness things he did not say; the NIA owes an explanation, as investigation must be fair. (¶¶ 10, 11)
- On a plain reading of the charge sheet, no reasonable grounds existed for believing that the UAPA accusations against the appellant were prima facie true, and no antecedents were shown, so bail should not have been refused. (¶¶ 16, 17, 18, 19, 20)
- 'Bail is the rule and jail is the exception' applies even under statutes with stringent bail conditions, modified only in that bail can be granted when the statutory conditions are satisfied. Once a case for bail is made out, courts cannot decline it however serious the allegations. The courts below had focused on PFI's activities rather than objectively assessing the material against the appellant. (¶ 21)
Result
Appeal allowed; orders refusing bail set aside; appellant to be produced before the Special Court within 7 days and released on bail till the conclusion of trial on terms fixed after hearing the respondent; findings are tentative, confined to bail and have no bearing on the trial or co-accused.