Summary
The Court restored Thwaha Fasal’s bail and upheld bail granted to Allen Shuaib in the UAPA prosecution. Taking the charge-sheet material as presented, it found no reasonable grounds to regard the accusations under Sections 38 and 39 as prima facie true: association or support alone did not establish the required intention to further a terrorist organisation’s activities. Section 43D(5) did not govern the separate Section 13 allegation. All findings were confined to bail and left framing of charges and trial unaffected.
Issues
- Whether the charge-sheet material satisfied the UAPA bail embargo for offences relating to association with and support for a terrorist organisation.
- Whether bail could be considered on the basis of Section 20 when sanction for that offence had neither been sought nor granted.
Provisions considered
- Sections 38 and 39, Unlawful Activities (Prevention) Act, 1967The association or specified support had to involve intention to further the organisation’s activities; that ingredient was not prima facie shown by the material here. (¶¶ 9, 11, 12, 13, 32, 33, 34, 36, 39)
- Section 43D(5), Unlawful Activities (Prevention) Act, 1967The bail inquiry required assessment of whether the accusation was prima facie true, taking the prosecution material as it stood without conducting a mini-trial. (¶¶ 16, 17, 18, 19, 20, 36, 39)
- Section 13, Unlawful Activities (Prevention) Act, 1967This Chapter III offence was outside the special bail embargo applicable to Chapters IV and VI. (¶¶ 15, 17, 22, 33)
Held
- Intention to further the terrorist organisation’s activities was an essential ingredient of Sections 38 and 39. Mere association, membership or the specified forms of support did not suffice without that intention, which could nevertheless be inferred from relevant overt acts or active participation in an appropriate case. (¶¶ 11, 12, 13, 34)
- At bail stage the Court had to examine the prosecution material on broad probabilities without evaluating its ultimate merits or holding a mini-trial. Applying Watali, the material here did not supply reasonable grounds to regard the Section 38 and 39 accusations as prima facie true. This conclusion did not create a general immunity for possession of literature or participation in gatherings. (¶¶ 18, 19, 20, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 39)
- The prosecution had neither sought nor obtained sanction for Section 20. The Special Court could not then take cognizance of that offence, so the relevant Chapter IV/VI bail assessment concerned Sections 38 and 39. The Section 13 allegation was governed by ordinary bail provisions. (¶¶ 21, 22)
- The restrictions in Section 43D(5) did not extinguish constitutional courts’ power to grant bail for violation of Part III rights. The Court also considered stringent existing conditions, absence of reported breach, prolonged custody and the likely duration of trial. (¶¶ 23, 37, 38)
- Fasal’s bail order and all its conditions were restored, while the Union’s appeal against Shuaib’s bail failed. The observations were exclusively for bail and could not influence the distinct charge-framing inquiry or trial. (¶¶ 40, 41, 42)
Result
Fasal’s appeal allowed and the Special Court’s bail order restored with all conditions; production before that court directed within one week for fresh bonds and bail formalities. Union of India’s appeal dismissed and Shuaib’s bail confirmed. Charge and trial merits left open.