Safoora Zargar Bail Order Doesn't Satisfy Criteria For Prima Facie Case Under Section 43D(5) Of UAPA

27 year old Safoora has been booked under Section 147/148/149/120-B Indian Penal Code read with 302/307/124-A/153-A/186/253/395/427/435/436/454/109/114 Indian Penal Code along with under Section 13/16/17/18 of Unlawful Activities (Prevention) Act in relation to alleged conspiracy behind Delhi riots.

The order rejecting bail on these counts has enlisted three primary reasons :

Firstly, larger conspiracy was at play to overawe the government by resorting to force and violence;

Secondly, based on evidence available on record, there was a prima facie conspiracy to at least blockade the roads; and

Thirdly, planning to create chakka jam (road blockade) is a conspiracy and constitutes "unlawful activity" within the contours of Section 2(o) of the UAPA.

Conclusively, the order dated 04.06.2020 states that it has been due to the embargo created under Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967 that the Court could not grant bail. The section has been reproduced herein:

(5) 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.

Even on the cursory reading of the Section, one could make out that the essentials requiring to be satisfied for the imposition of the Section, which are : 

Firstly, that the offence so committed must have been punishable under Chapter IV and VI;

Secondly, Case diary and Chargesheet must have been placed on record for perusal by the Court; and

Thirdly, accusation should appear to be prima facie true and such accusation can only be made out on reasonable grounds. 

AWRY IMPORT OF THE TERM-UNLAWFUL ACTIVITY

The offences laid out under Chapter IV and VI of the Unlawful Activities (Prevention) Act are the offences which are categorized as terrorist activities. Chapter IV opens with definition of terrorist act and conscripts acts done with intent to threaten unity, integrity, security, economic security or sovereignty of India or acts likely to strike terror as terrorist activities.

The order does not offer any explanation on how the allegations against Zargar came under the ambit of Chapter IV and VI of UAPA. All that the order does is to state that the acts amount to "unlawful activity" as per Section 2(o) of UAPA. However, mere 'unlawful activity' is not a 'terrorist activity', as per the Act.

The bail rejection Order on the other hand states vaguely that "at least" there was a conspiracy to commit chakka jam i.e., road blockade during the protests. No matter how much we try to draw parallels to equate the said act of chakka jam as an offence or a terrorist activity within the meaning of the Act, we at best can only classify the act of road blocking as an offence of disturbing peace and tranquility or creating public nuisance under the Indian Penal Code.  

Is the conspiracy to create a road blockade an unlawful activity? Does the conspiracy to create a road blockade fulfill the criteria of the frame of prima facie accusation required to sustain an embargo under Section 43-D (5)?

A celebrated Montesquieu written legal maxim worded as Le Lois Ne Se Chargent De Punir Que Les Actions Exteriures i.e., laws do not undertake to punish more than outward actions is apropos to the present factual matrix as none of the apparent and outwardly actions in the case fit within the four corners of the definition of unlawful activity. Most riveting is the fact that Safoora Zargar is neither part of any banned organization nor has the order indicated any such association and rather has specifically stated conspiracy to be the basis of findings arrived at in the order. The order cites wrongful restraint and unlawful assembly as the offences committed due to the alleged road blockade. The order does not state what is the proximate cause between the activities falling within Chapter IV and Chapter VI of the UAPA and the unlawful activities cited to be the basis of denial of bail.

Also Read : Safoora Zargar Bail Order : When Muddled Reasoning Defeats Personal Liberty

PRECONDITIONS OF INVOKING PRIMA FACIE ACCUSATIONS

The order states that the act of road blocking as such and when seen along with other evidence placed on record prima facie establishes the commission of the Unlawful Activity.

In Devendar Gupta & Anr. v. National Investigation Agency [(2014) 2 Crimes 106], a judgment by High Court of Andhra Pradesh, the Court has interpreted the expression and the intent behind introduction of term prima facie in Section 43-D (5) and has emphatically stated that a greater care has to be accorded while judging the charges when considering the matters of bail within the rims of the said section. The judgment uses the phrase "Marjala Kishora Neethi" which typically means the care which a cat is expected to undertake while carrying the kitten in its mouth from one place to another and the same kind of care has been asked of the courts to assign while deciding whether a particular set of circumstances prima facie establish carrying out of unlawful activities to continue the prosecution under Section 43-D of the Act.

The afore-stated precedent has also delved deeper and encased the prerequisites to be looked into before arriving at the conclusion as to whether the accusation in such cases is "prima facie true":

"(A) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the Act.

(B) Whether the accused was convicted of the offences involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities;

(C) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the accused;

(D) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the accused, at or around the scene of occurrence; and

(E) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies."

The afore-stated criterions, even when taken as read, indicate that the present order is far from any semblance of having considered these yardsticks.

In Jayanta Kumar Ghosh v. State of Assam [(2010) 4 GLT 1], High Court of Gauhati while considering the law of presumption of innocence in the similarly located facts held that to arrive at an understanding whether the charges against the accused are prima facie true or not, the Court must form its opinion based on evidence collected specifically against the accused. The relevant excerpt of the judgment is as follows:

"The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjectures; but must rest on the materials collected against the accused. Since the presumption of innocence runs in favour of the accused, it logically follows that if there are in given circumstances, grounds for believing that the case, against the accused, is true, a case of commission of offence under Chapter IV or Chapter VI of the UA(P) Act, 1967, can be said to have been made out and when such a case is made out, it would be tantamount to saying that reasonable grounds exist for opining that the accusations are prima facie true."

Curious reference to evidence gathered in another FIR

The kernel in the present set of circumstances is the fact that the Court itself has stated that at best the conspiracy was to create the road block and apart from it the only unlawful activity cited by the court are the keeping/ finding of seized objects as delineated in the seizure memo dated 26.02.2020 in the FIR bearing No. 101/2020.

The pertinent point to descry here is that the FIR no. 101/2020 is a separate FIR from that under which present bail has been sought for which is FIR bearing no.59/2020.

The order remains non-speaking on the front as to whether the FIR bearing no.101/2020 has the same set of accused having done similar offences which eventually raises the questions regarding reliance placed on the seizure memo. The reader as such remains in abeyance as to why the discovery of seized objects made in another FIR is cited as a reason to prosecute a student who wasn't even present on the fated day of occurrence.

The question which also remains open for deliberation here is whether such seized objects are forming part of the same transaction satisfying the rigors of Section 6 of the Indian Evidence Act or, to put it otherwise, does this seizure of objects, at all, pans out enough proximity with the accusations to cover even the road block as an unlawful activity within the meaning of the Act. Since, nothing of such sorts has been discussed; we can only play around while dabbling between the self-serving interpretations of these terms.

MISPLACED APPLICATION OF SECTION 10 EVIDENCE ACT

The order further reasons that the prosecution launched against Safoora Zargar even if lacks in attributing "direct violence" onto her part, the "acts and inflammatory speeches of the co-conspirators" are admissible against her under Section 10 of the Indian Evidence Act. Section 10 has been stated to be not a rule of law but a rule of prudence bordering on law and thus for it to operate, production of independent evidence as to the existence of the conspiracy is a basal consideration.

In Sidharth & Ors. v. State of Bihar [(2005) 12 SCC 545] the Supreme Court held that Section 10 of the Indian Evidence Act cannot be widely construed and hence the non invocation of the Section remains the only way while citing the reason:

"that things said, done or written while the conspiracy was afoot are relevant as evidence of the common intention once reasonable ground has been shown to believe in its existence, but it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist, is admissible against the other party."

The Court could not have turned a blind eye to the fact that for the application of Section 10 of Indian Evidence Act to be passable in the present matter, the specific instances indicating as to when the conspiracy was conceived (if at all, was this the case) should have been expressly delineated in the order, accompanied with the examination of the fact that whether the "acts and inflammatory speeches" of the co-accused were done or spoken after the conspiracy to create the road blockade was over. Appurtenant to this fact is the reasoning that at this stage of proceedings where court had a limited opportunity to decide the grant of bail, it could not explore the facts as deeply as required to attract an application of Section 10. In an otherwise scenario, if the court would have conducted an extensive examination of facts then a detour from the essentiality of prima facie requirement as laid down under Section 43-D would have taken place. In fact, the court itself in the order has indicated its inclination to not go into the evidence deeply at the stage of deciding bail but it failed to take note of the old age adage which has been repetitively affirmed by the likes of Constitutional Bench judgment :

"that the statement made by a co-accused person cannot be treated as a substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence"

Hence, for the application of Section 10 to come into play, conducting of a trial and then arriving at the conclusion is an indispensable requirement and since the same could not have been undertaken at this stage of the proceedings, evidence sought to be admissible by way of invocation of section 10 cannot be brought on record.

 CONCLUSION

As a consequence of UAPA, the right of bail stands ambushed and the accused continues to be treated like a convict even before the trial has commenced, languishing in the jail, sometimes for a tenure spanning over 3-4 years. Despite express mention in the Act about the applicability of bail provisions laid out under the Criminal Procedure Code to the offences under the Unlawful Activities (Prevention) Act, 1967, the Courts continue to cite embargo under Section 43-D (5) to reject bails mechanically. The paramount consideration while granting or rejecting bail is looking into the possibilities of tampering of evidence and fleeing from the justice by the accused which in the present case seems highly unlikely, given the fact that Safoora herself is a pregnant woman. The bail order leaves out more questions, than answers.

While concluding, it is pertinent to refer to some observations made by the SC in State of Kerala v. Raneef [AIR 2011 SC 340], where bail was granted in a UAPA case:

(The author is an advocate practising in the Supreme Court, and may be reached at deepriya.snehi@gmail.com. Views are personal)