The sub-section (5) of Section 43D of UAPA says:
Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
In an article last year, legal scholar Gautam Bhatia referred to inconsistency in bail judgments under UAPA within the same court, and in the pronouncements of the same judge within the same court. Two recent cases decided by the Supreme Court show that this inconsistency continues to be the norm, rather than an exception.
Yedala Subba Rao
In Yedala Subba Rao & Anr. vs Union of India, the bench comprising Justice Abhay S. Oka and Justice Rajesh Bindal held on April 17 that taking the material against the appellants as it is and without considering the defence of the appellants, it was unable to form an opinion that there were reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA were prima facie true. Hence, the bench held that the embargo on the grant of bail under proviso to sub-section (5) of Section 43D would not apply in this case.
The bench in Yedala Subba Rao, however, made it clear that the findings recorded in the judgment are only prima facie observations recorded for the limited purposes of examining the case in the light of the proviso to sub-section (5) of Section 43D of the UAPA. The trial shall be conducted uninfluenced by these observations, it held.
In Yedala Subba Rao, the appellants are in custody for four and half years. The charge has not been framed and the prosecution proposes to examine more than 140 witnesses. Some of the accused are absconding. Thus, there is no possibility of the trial commencing in the near future, the bench pointed out. It was obvious to the bench that while granting bail, stringent conditions would have to be imposed, and therefore, it left it to the Special Judge to impose appropriate conditions.
In Rao, two accused appellants, along with 77 co-accused belonging to the banned Communist Party of India (Maoist), were charged with killing one sitting member and a former member of the Andhra Pradesh legislative assembly, belonging to the Telugu Desam Party in 2018. The allegation against the first appellant-accused is that he provided shelter and logistic support to Maoists and co-accused for facilitating the offence of murder of the two leaders.
The second allegation is that the present appellants planted landmines near the village where the programme was to be held. There were other allegations. The bench considered the Andhra Pradesh high court’s judgment in 2020, granting bail to one of the accused, who allegedly had a telephonic conversation with one of the appellants before the Supreme Court. The Supreme Court bench considered the grant of bail to this accused by the high court a relevant factor, for considering the grant of bail to the appellant.
The bench also expressed doubts about the genuineness of the confessional statements of the appellants.
In Suhail Ahmed Bhat vs National Investigation Agency, a Supreme Court bench comprising Justices Sanjiv Khanna and M.M. Sundresh refused to interfere with the impugned judgment, denying bail to the appellants by the Punjab and Haryana high court on December 19 last year.
In this case, three students, all residents of Pulwama district in Jammu and Kashmir, were allegedly found in possession of arms, ammunition, and explosives, in their college campus at Jalandhar, Punjab. They were allegedly associated with a terrorist gang, namely, Ansar Ghazwat-Ul-Hind (AGH) and received funds for carrying out unlawful activities. The FIR named these three as accused.
During investigation, as per statements which have been recorded by NIA, it allegedly came to light that the appellant was the person who had motivated and made one of the three accused join the gang for “carrying out jihad against India to establish Islamic rule”. The appellant allegedly had facilitated communication between one of the three accused and the AGH chief over Telegram by sharing the user IDs of both these persons.
The appellant submitted before the high court that he was falsely implicated in the case, and that he was not even named in the FIR. His involvement was alleged in the disclosure statement of the co-accused, which is inadmissible as evidence. That apart, he asserted that since no recovery had been effected from him in person, his involvement could not be said to be supported by any evidence, especially where there is no other corroborated evidence which supports the case of the prosecution.
The high court bench comprising Justices Augustine George Masih and Alok Jain, noted in its judgment that disclosure statements of accused 1 and 4 (the appellant) were recorded in the presence of three independent witnesses, one of whom was the Executive Magistrate. In the presence of these witnesses, the judgment notes, the accused voluntarily gave the detailed account as to how collection of arms and ammunition etc. was being carried out. The high court also noted that the pictures and video recovered from the seized laptop of the appellant allegedly showed his involvement and inclination towards terrorism.
The high court assumed that prosecution witnesses, who are from Jammu and Kashmir and have not yet been recorded, are likely to be criminally intimidated in case the appellant is released on bail. His likelihood of fleeing to Pakistan since the crime is allegedly sponsored by the said country, with the base of the gang being there is very much there and it would be impossible to secure his presence for facing trial, the high court further observed in its judgment.
In paragraph 6 of the judgment, the bench noted as follows:
“As regards the statement recorded under Section 27 of the Indian Evidence Act by the police to be inadmissible, suffice it to say that the said statement has been recorded in the presence of the Executive Magistrate and two other independent witnesses. Therefore, prima facie, the said assertion of the counsel for the appellant also cannot be accepted as it would be dependent upon the statement and cross-examination of the Executive Magistrate and the other two independent witnesses. At this stage, nothing more is required to be stated on this count.”
In paragraph 7, the bench held that there is ample evidence which connects the appellant with the offence for which he has been charge sheeted and keeping in view the strict provisions contained in Section 43D(5) of the UAPA, there is reasonable ground for the court to believe and form an opinion that the accusation against the appellant is prima facie true.
In paragraph 8, the high court bench rejected the plea of the appellant for bail on the ground that he was being denied speedy trial, especially when he is in custody for more than four years. The high court bench held as follows:
“Suffice it to say that merely because a person is in custody and that too for quite some time would not in itself be a ground for coming to a conclusion that the trial has been delayed for a long period. The gravity of the offence, the role of the accused, the evidence collected, the severity of punishment in case of conviction need to be taken note of. The reasonable apprehension of the accused tampering with the evidence in the form of influencing, threatening or putting pressure on the witnesses in the given facts and circumstances, has also to be kept in mind…Obviously, balancing the right of the accused vis-a-vis the prosecution has to be carried out.”
The high court bench also noted that in the present case, more than half of the witnesses have been examined, and there are serious allegations where the safety and security of the country is being sought to be put to peril, with there being prima facie evidence indicating involvement of the appellant, the appeal of the appellant deserves to be rejected. However, keeping in view the custody period of the appellant, the bench directed the Special Judge, NIA, S.A.S. Nagar (Mohali) to expedite the trial and conclude the same by giving very short dates.
More important, the appellant’s reliance on the Supreme Court’s judgment in Union of India vs K.A.Najeeb (2021) in which prolonged incarceration was considered a factor to release an accused on bail under UAPA, did not impress the high court and the Supreme Court’s bench did not follow its own precedent.
Interestingly, in the April 11 order, the Sanjiv Khanna-M.M.Sundresh bench clarified that the observations made in paragraph 6 of the impugned judgment of the high court would not be treated as binding observations. If one reads the high court’s judgment in the case carefully, it is on the basis of the observations in paragraph 6, that the bench has justified its denial of bail to the appellant in this case.