Prosecution Makes “Copy Paste” Arguments About National Security In UAPA Cases To Psychologically Influence Court: Jammu & Kashmir High Court

Justice Atul Sreedharan of the Jammu and Kashmir High Court recently cautioned against being unduly influenced by forceful submissions regarding internal security in the absence of judicially cognizable material against the accused.

Citing Voltaire, he said that internal security arguments could become the oppressor's eternal cry if not backed by substantial evidence, leading to the denial of liberty and potential miscarriage of justice.

While dealing with a UAPA case, he highlighted that the prosecution reiterates the typical arguments in UAPA cases, emphasizing the heinous nature of the offense and its threat to national security.

“The initial and main thrust of the UT's arguments is to make an attempt to psychologically overawe the Court by bringing in elements of National Security, Nationalism, Allegiance to Pakistan (of the accused), Radical Islam – Islamist and Islamism (as the influence on the accused), Secession of Jammu and Kashmir from India and its accession to Pakistan (as the goal of the accused) etc., which this Court acknowledges as elements relevant in a case under the UAPA but which should be supplemental submissions in addition to the material raising a prima facie view that the accused may have committed the offence.”

The prosecution had argued that releasing the accused on bail could interfere with the judicial process, influence witnesses, and lead to a repetition of the offenses, thereby jeopardizing the unity and integrity of India.

“These arguments are “copy paste” in every case under the UAPA. In fact, experience has shown that the main thrust of the prosecution's arguments is usually on these aspects, rather than the specific material, which appears, against an accused person”, Justice Sreedharan said in his order.

Justice Sreedharan noted that these arguments are often repeated in UAPA cases and are used to “psychologically overawe” the court by invoking themes of national security, radicalism, and secessionism.

“The question of internal security may be real, or a bogie which the State attempts to compel the Court to believe as real, by impressing upon the Court on aspects of internal/national security and thereby try to get the Court to dismiss the application for bail by contending that the imperatives of internal security demand that the accused remain incarcerated even in the absence of judicially cognizable material against the accused only because there is a suspicion that the accused may be involved in the offence as charged.”

While acknowledging the relevance of these elements, the court stressed that they should supplement, not replace, the need for material evidence that creates a prima facie view of the accused's involvement.

“An overbearing subliminal belief in the primacy of internal security of the State in the sub conscious mind of the judge, could result in the inadvertent oppressive application of a draconian law resulting in the denial of liberty, unsupported by judicially cognizable material”, Justice Sreedharan said.

A division bench of Justice Atul Sreedharan and Justice Mohammad Yousuf Wani recently granted bail to Khursheed Ahmad Lone, an accused under the Unlawful Activities (Prevention) Act (UAPA), setting aside the Special NIA Court's order denying him bail.

However, Justice Mohammed Yousuf Wani in his separate opinion disagreed with Justice Sreedharan's observations while agreeing with him on merits of the case.

“Except for the observations made through Paras No. 7 and 8 of the order, I am in agreement with the decision on merits and the conclusion drawn in allowing the appeal and admitting the appellant/accused to bail”, Justice Mohammed Yousuf Wani stated in his order.

Khursheed Ahmad Lone was initially arrested on April 10, 2013, following the registration of FIR on April 7, 2013 at Police Station Anantnag. The charges included offenses under Sections 13(1)(B), 18, 20, 23, and 40 of the UAPA. Shortly after his arrest, on May 23, 2013, Lone was placed under preventive detention under the Public Safety Act, which was later quashed by the High Court on October 29, 2013. He was released on a personal bond by the Jammu and Kashmir Police, although he remained under arrest for the UAPA offenses.

Lone remained at liberty until his re-arrest on October 22, 2022, following the filing of the charge sheet after a prolonged nine-year investigation. The Special NIA Court's order, which denied his bail on September 12, 2023, was challenged, leading to the present appeal.

As per the allegations in the FIR, Lone, along with other co-accused individuals, was involved in meetings with certain undertrials who were brought to court for hearings. These undertrials were also detained under the Public Safety Act (PSA). It is further alleged that these undertrials directed Lone and the other co-accused to collect money from people and influence youngsters to engage in terrorism and wage war against the Union of India.

Advocate Sajad Ahmad Geelani for Lone presented a medical report dated December 1, 2022, from the Medical Officer of District Jail Anantnag, detailing Lone's serious health conditions. The report indicated that Lone's medical condition requires management in a tertiary care hospital due to a grave medical emergency.

The prosecution opposed Lone's appeal for bail relying on statement of a co-accused Tariq Shah claiming that he, along with Lone and other co-accused, collected money and influenced individuals to wage war against the Union of India. Shah stated he had hidden the collected money under a bridge and was willing to help recover it. Following Shah's disclosure and his identification of the spot, an amount of Rs. 29,000 was recovered. The prosecution argued that this disclosure memorandum provided prima facie evidence against Lone.

However, the court noted that Shah remains a co-accused and has not been made an approver, meaning his statement cannot be used against Lone. Additionally, there was no disclosure memorandum from Lone under Section 27 of the Evidence Act, and thus nothing had been seized at his behest.

The court said that it granted ample opportunity to the counsel for the Union Territory to present any independent witness statements or material evidence that would implicate Lone or create a prima facie case of his involvement through circumstantial evidence. Despite being given over an hour to review the charge sheet and witness statements, the counsel was unable to present any such material, the court recorded.

The prosecution contended that since charges had been framed by the trial court and the standard of appreciating evidence for framing charges and granting bail under the UAPA is the same (prima facie evidence), bail could not be granted as Lone had not challenged the order framing the charges.

The court rejected this argument, noting that while the appreciation of evidence for framing charges and granting bail under the UAPA is the same (prima facie), the legislative intent differs at each stage. The trial court's task at the charge-framing stage is to decide if the accused should face trial, while the bail stage involves assessing whether the accused should remain incarcerated during the trial. The court asserted that it has the jurisdiction to review a trial court's order rejecting bail even if the appellant has not challenged the framing of charges.

"There is no limitation on this Court while examining an order of the Trial Court rejecting bail under the UAPA, where the Trial Court has also framed charge against the appellant/accused, inter alia for offences which restrict the grant of bail on account of the operation of the proviso to s.43D(5) of the UAPA, and which order framing charge has not been challenged before this Court by the appellant", the court held.

The High Court noted the lack of compelling reasons for Lone's re-arrest after a nine-year period during which he had been free without any allegations of attempting to influence witnesses. The prosecution failed to present any independent witness testimony linking Lone to the alleged offenses, the court opined.

The court also highlighted the lapses in procedure by the police. On Lone being released on a personal bond by the Jammu and Kashmir Police, though he remained under arrest for the UAPA offenses, the court stated, “Once a person is arrested for the offences under the UAPA, it was only the court of competent jurisdiction which could have granted him bail after observing that the bar under the UAPA to grant bail would not be applicable in the facts and circumstances of the given case.”

Consequently, the High Court granted bail to Lone, subject to furnishing a personal bond of Rs. 50,000 and one surety of the same amount to the satisfaction of the trial court.

Case Title - Khursheed Ahmad Lone v. Union Territory

Citation: 2024 LiveLaw (JKL) 140

Case no. - CrlM. No. 1528/2023