UAPA Bails: Judicial Burden Not Discharged

The 23 weeks pregnant, Ms. Safoora Zargar, was granted bail by the Delhi High Court vide order dated 23.06.2020 on humanitarian grounds without entering into the merits of the case.

This order came after Ms.Zargar was denied bail by the Sessions Court vide order dated 04.06.2020. Ms.Zargar had been kept in Police custody since 10.04.2020 on the allegation that her "inflammatory speech" on 23.02.2020 had led to violence and rioting in North East Delhi.

It was held by the Ld.ASJ that there was prima facie evidence to show that there was a conspiracy to at least blockade the roads. Whatever may have been the reasons that may have weighed with the Ld.ASJ they were apparently enough to keep a pregnant 27-year-old in custody.

To understand the interpretation adopted by the Ld.ASJ let us look at the order dated 04.06.2020. The Ld. ASJ denied bail to Ms. Zargar based, inter alia, on the following reasons:

a. Since the word "disaffection" has not been statutorily defined, the Ld.ASJ relied upon the interpretation of the word "sedition" used in Section 124A of the IPC as had been done by the Apex Court in the case of Kedar Nath v. State of Bihar [AIR 1962 SC 955] and concluded that

"….law frowns upon any act which has a tendency to create disorder or disturbance of law and order or incitement to violence. Therefore, mere violence is not the gravamen of charge u/s 2(o) of the UAPA. Any activity which has a tendency to create a disorder or disturbance of law and order to such an extent that the entire city is brought to its knees and the entire government machinery is brought to a grinding halt, such an activity would obviously be treated as an unlawful activity within the meaning of Section 2(o) of UAPA."

b. On the question of entering into the merits of the matter the Ld.ASJ held that the court is not required to test the merits of the prosecution case but on the basis of the statements given under Section 161, 164 CrPC as well as WhatsApp chats, the Ld.ASJ concluded that

"….there is prima facie evidence to show that there was a conspiracy to atleast blockade the roads (chakka jaam). As per the provisions of Section 339 of the Indian Penal Code, causing wrongful restraint to even a single individual is a penal offence. Section 141 Clause 3 provides that nay assembly of 5 or more persons is designated as 'unlawful', if its common object is to commit any offence."

c. On the question of existence of a conspiracy, the Ld. ASJ, based on the aforementioned reasoning, held that

"…from the material available on record, one cannot ignore the case of the prosecution that the accused persons have conspired to cause disruption of such an extent and such a magnitude that it would lead to disorderliness and disturbance of law and order at an unprecedented scale."

d. The Ld. ASJ while addressing the issue of the liability of the accused as a co-conspirator, held that

"…even if no direct violences attributing to the applicant/accused, she cannot shy away from her liability under the provisions of the said Act. When you choose to play with embus, you cannot blame the wind to have carried the spark a bit too far and spread the fire. The Acts and inflammatory speeches of the co-conspirators are admissible u/s 10 of the Indian Evidence Act even against the applicant/accused."

e. Finally, the Ld. ASJ while dealing with the question of the statutory embargo u/s 43 (D) held that

"…the court is not concerned with the sanctity of the material available on record, however, considering the material available on record, it cannot be said that there is no prima facie case made out against the applicant/accused. Thus, the statutory embargo under provisions of Section 43 (D) (5) is attracted in the instant case"

(Emphasis Supplied)

Thus, the Ld. ASJ was of the opinion that prima facie a case was made out against Ms. Zargar. What must be pointed out is that the Ld. ASJ had himself observed that the prima facie evidence showed that there was a conspiracy to at least blockade the roads. It should also not escape one's notice that the Ld. ASJ was not "concerned with the sanctity of the material available on record". Thus, even going by the reasoning of the Ld. ASJ the best prima facie case that the Prosecution was able to make out was that Ms. Zargar was allegedly the part of a conspiracy to blockade the road. If this was a sufficient reason to keep a pregnant woman in police custody, is unfortunately now only an academic question.

2. Asif Iqbal Tanha

Asif Iqbal Tanha was arrested on 19.05.2020 under FIR No. 59/2020. Sections 13, 16, 17 and 18 of UAPA along with Sections 120 B, 124 A, 302, 307, 353, 186, 212, 395, 427, 435, 436, 452, 109, 114, 147, 148, 153 A, 34 of the IPC and Sections 25 and 27 of the Arms Act. Mr. Tanha was granted bail by the Delhi High Court dated 15.06.2021. However, the same was denied by the Ld. ASJ vide order dated 02.09.2020. in the said order, the Ld. ASJ again placed strong reliance on the applicability of the statutory embargo contemplated under section 43 D (5) and held that

"(f) In the present case, as per the case of the Prosecution, there was a conspiracy hatched to cause communal riots in Delhi. The said conspiracy was multi-layered and deep rooted. Various groups and organizations came together and forged linkages to create communal tension, do chakka-jam at pre planned sites. Protest against the CAA was organized at various sites in Delhi with the objective of causing riots which took place mainly in North-Eastern Delhi. For achieving the said objective fire arms, petrol bombs, stones, sling shots and other dangerous articles were gathered at various places in North-East Delhi. The same is also reflected in the seizure memo in FIR No. 101/20, Police Station Khajuri Khas, Delhi. As part of the pre planned conspiracy, the children and ladies were sent to block the main sites to create and tension and leading to riots in the area. The riots ensued, resulting in heavy loss of lives, injury and loss of properties. The conspiracy began quite early and accused was coordinating in reference to SIO and JCC.

…statements of protected witnesses under Section 161 CrPc and 164 CrPc… reflect role of many accused persons including accused Asif Iqbal Tanha regarding the protest sites and how everything was being planned. He was a part of Conspiracy for doing Chakka-Jam leading to the riots…

…

…I have no hesitation to hold that there are reasonable grounds for believing that accusation against accused are prima facie true and thus, the embargo under Section 43 D (5) of UA (P) Act, 1967 will apply."

Again, it needs to be seen that the Ld. ASJ also denied bail to Mr. Tanha, being convinced that there was sufficient prima facie evidence of Mr. Tanha's alleged involvement in a conspiracy to blockade the roads. At the cost of repetition, one must note that here again the best case that was made out by the Prosecution, even as per the Ld. ASJ himself, was that of a conspiracy to do a Chakka-Jam that allegedly led to riots. Again, the question that presents itself, after one has considered the Judgement of the Ld. ASJ in sufficient detail, is that was the evidence enough to satisfy the Ld. ASJ, even by way of prima facie satisfaction, to deny bail.

The second bail application of Mr. Tanha was also rejected by the Special Court vide impugned order dated 26.10.2020 which was finally challenged by him in the Delhi High Court. The Delhi High Court vide judgement dated 15.06.2021 granted bail to Mr. Tanha. The said order was passed inter alia holding as follows-

a. Penal provisions must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. The more stringent a penal provision, the more strictly it must be construed.

b. Right to protest has been held to be a part of the fundamental rights guaranteed under our Constitution.

c. The High Court further considered whether the allegations against Mr. Tanha made out an offence under UAPA and in furtherance thereof the Court dealt with Sections 15, 17 and 18 of UAPA and held that –

     i. The words Terrorist Act used under Section 15 must not be employed in a manner that would trivialize the extremely heinous offence of 'Terrorist Act'. Further it was held that the phrase 'Terrorist Act' must partake of the essential character of terrorism and cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC.

     ii. Intent and purport the parliament in enacting the UAPA and amending it in 2004 and 2008 to bring terrorist activities within its scope, could only have been to deal with matters of profound impact on the 'Defence of India'. It was neither the intent nor purport of enacting UAPA that other offences of the usual ordinary kind, however grave egregious or heinous in their nature or extent, should also be covered by UAPA since such conventional matters would have fallen within Entry 1 of List II (State List) and/or Entry 1 of List III (Concurrent List) of the 7^th Schedule of the Constitution. In order to uphold the constitutionality of Section 15, 17 and 18 of UAPA it must be taken that the parliament acted within the realm of legislative competence and enacted UAPA under Entry 1 read with Entry 93 relating to Defence of India.

    iii. While dealing with the phrase 'likely to threaten' contemplated under Section 15. The court observed that the foundations of our nations stand on surer footing than likely to be shaken by a protest, however vicious, organized by college students.

d. After so examining Sections 15, 17 and 18 the court held as follows qua the merits of Mr. Tanha's case –

1. There was no allegation in the subject chargesheet that the Appellant was leading the co-conspirators to indulge in acts of organizing Chakka-Jam etc.
2. There was no allegation that Mr. Tanha was the administrator of any of the WhatsApp groups or that he had formed the JCC.
3. Admittedly neither the SIO nor the JCC are banned organizations or terrorist organizations.
4. No allegation in the chargesheet that the anti CAA protests allegedly being orchestrated by Mr. Tanha on directions and instructions of other co-conspirators extended to even the whole of Delhi. The same were restricted to North-East Delhi. Therefore, it is a stretch to say that the protest affected the community at large for it to qualify as act of terror.
5. From the most material allegations the court was able to discern only one specific, particular and overt act that Mr. Tanha had handed over a SIM Card given to him by someone else to a co-conspirator which was used allegedly to send messages on a WhatsApp group.
6. No allegations that the arms, ammunitions and other articles supposedly to be used as weapons were recovered from or at the instance of Mr. Tanha.
7. In the absence of specific allegations qua the submission that the protest organized by the accused and others was not a typical protest but an aggravated protest, mere use of alarming and hyperbolic verbiage in the chargesheet was not sufficient to convince the court. Further the submissions made by the State were based upon inferences drawn by the prosecuting agency and not upon factual allegations.

e. Under section 43 D (5) of the UAPA, where, before allowing a bail plea, the court is required to assess if the accusation is prima facie true, the burden to demonstrate the prima facie veracity of the allegation must fall upon the prosecution. Thus, the requirement of believing an accusation to be prima facie true would mean that the court must have reasons to pima facie accept guilt of the accused persons, even if on broad probabilities.

f. The decision of the apex court in NIA v. Zahoor Ahmad Shah Watali proscribes the court from delving into the merits or demerits of the evidence at the stage of deciding a bail plea and as a sequitur for assessing the prima facie veracity of accusations the court would equally not delve into the suspicions and inferences that the prosecution may seek to draw from the evidence and other material laced with the subject chargesheet. The State must, without falling upon the court to draw inferences and conclusions, show that the accusations prima facie disclose a terrorist act or a conspiracy or an act preparatory commission of a terrorist act.

g. On the question of permissibility of the protest the High Court observed that there was nothing to show that the government had prohibited the protest at the relevant time, much less anything to show that the accused was perpetrator or conspirator or was involved in any illegal protest.

In conclusion the High Court held that there was nothing in the chargesheet by way of any specific allegation that would show the possible commission of terrorist act under Section 15; or an act of 'raising funds' to commit terrorist act under Section 17; or an act of 'conspiracy' to commit or an 'act preparatory' to commit a terrorist act under section 18 of UAPA. Accordingly, Mr. Tanha was granted bail by the High Court.

The High Court, while staying within the quite narrow contours of Section 43D(5) of the UAPA discharged its judicial duty of not letting baseless allegations, stemming from the Prosecution's suspicions and inferences, obstruct it from safeguarding the basic civil liberties of the accused. The High Court very rightly did not extend the presumption of veracity and sanctity otherwise assigned to the allegations made by the Prosecution in the chargesheet to the inferences and suspicions of the Prosecution.

Unfortunately, when the same set of allegations were presented before the Ld. ASJ even the minimal burden of segregating allegations emanating from facts from allegations based on suspicion was unfortunately not discharged. The chargesheet, in its entirety was taken as a sacrosanct document.

It was the duty of the Ld. ASJ to at least arrive at such a prima facie satisfaction as has been contemplated by Section 43D(5). As per the basic principles of criminal jurisprudence satisfaction of a Court must necessarily be arrived at on basis of facts and cannot possibly be based on inferences and suspicion of the Prosecution as more often than not the Prosecution as well as the police authorities could be functioning with ulterior motives. The courts ought to not turn a blind eye to this reality. It has been held time and again by the courts that just because there's a presumption against the Accused the same does not release the Prosecution of its duty to discharge the initial burden.

3. Father Stan Swamy-

Father Stan Swamy, now deceased, was arrested on 08.10.2020 under Sections 121, 121-A, 124-A, 153-A, 505(1)(b), 115, 120-B, 201 read with 34 of the IPC and Sections 13,16,17,18,18-A,18-B, 20, 38 and 39 of the UAPA. He lost the battle to his medical condition while his interim bail application was pending before the Bombay High Court.

The bail application moved by Father Stan Swamy before the NIA Court was rejected vide order dated 22.03.2020.

Father Swamy was claiming bail on the ground of old age and physical health.

While denying the aforementioned bail application the Ld.Special Judge observed that as per the Watali judgment question of admissibility of the documents relied upon by the Prosecution could not be gone into and would be decided at the stage of the trial.

It was further held that at the pre-trial stage detailed scrutiny of record was not expected. However, the Ld.Special Judge did examine certain letters (recovered from the house of the accused) placed before the Court by the Prosecution that gave "an idea of the roles played by the applicant/accused in the conspiracy while executing the object of the banned organization."

Thereafter the submission that Father Stan Swamy was not present in Pune at the time of the Elgaar Parishad and had not been named in the FIR, did not further his defence as per the Ld.Special Judge on consideration of the nature of allegations made against the accused that he was an active member of a Terrorist Organization.

Lastly when it came to whether the medical condition and old age of Father Swamy would allow him the benefit of bail the Ld.Special Judge held that "there will be no hesitation to conclude that the collective interest of the community would outweigh the right of personal liberty of the applicant and as such the old age and or alleged sickness, of the applicant would not go in his favour, so that the discretion release the applicant can be exercised in his favour."

Unfortunately for Father Stan Swamy the judgment of the Apex Court in the case Thwaha Fasal v. Union of India wherein the Supreme Court granted bail to a journalism student accused under the UAPA for having Maoist links, came after his unfortunate demise.

In the said case the Apex Court held that mere support given to a terrorist organization or mere association with it, is not sufficient to attract offences under Sections 38 and 39 of the UAPA. The association and the support have to be with intention of furthering the activities of a terrorist organization. Such intention, according to the court, can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of the charge-sheet.

Perhaps the benefit of the judgment in Thwaha Fasal could have been taken in Father Stan Swamy's case, however, it is water under the bridge now.

One must also note the finding of the Supreme Court in the Thwaha Fasal judgement, on the question of the statutory embargo contemplated under Section 43D(5) that

"The embargo will apply when after perusing charge sheet, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, if after perusing the charge sheet, if the Court is unable to draw such a prima facie conclusion, the embargo created by the proviso will not apply"

Even as per the earlier jurisprudence that has been laid down by the Supreme Court qua the grant of bail under Section 43D(5) of the UAPA a Court while dealing with the question of grant of bail must arrive at a prima facie satisfaction in support of the charge. (See Prasad Shrikant Purohit v. State of Maharashtra, [(2018) 11 SCC 458]

Another important aspect that needs to be highlighted is that time and again the Supreme Court has held that the grant or denial of bail even for cases covered by Section 43D(5), is regulated, to a large extent, by the facts and circumstances of each particular case. Thus, a blanket approach cannot be adopted by the Courts while considering a particular case especially when such an approach more often than not results in causing extreme prejudice to the accused.

The aforementioned point segues into the approach being adopted by Courts while placing reliance on the Watali judgment of the Supreme Court that was passed by the Supreme Court after considering the facts and circumstances of the same. In the Watali judgment, the observations made by the Supreme Court qua admissibility of evidence were made specifically regarding the admissibility of evidence in a sealed cover. In that specific context the Supreme Court had observed that the question of admissibility of evidence should not be gone into at the stage of bail. Thus, the observations made by the Supreme Court should not be construed as laying down the law for all matters of grant of bail and examination of evidence under Section 43D(5).

In conclusion, it can be said that the duty of the Court to at least come to a prima facie satisfaction that by necessary implication has to be arrived at after due consideration of the allegations made in the chargesheet had been acknowledged by the Apex Court. The "satisfaction", if it has to be just & equitable, must by implication have to be based upon allegations emanating from certain concrete facts and not mere conjectures, inferences and suspicions. Even if the Courts begin to endeavour to reach such a minimal threshold of satisfaction while staying within the limits of discretion contemplated under Section 43D(5), several innocent persons would be saved from spending an eternity behind bars under this draconian law.

Author is a practicing Lawyer in the Supreme Court.

The opinions expressed within this article are the personal opinions of the author.The article does not reflect the views of LIVELAW andLIVELAW does not assume any responsibility or liability for the same.