Must Guard Against Ideological Biases, False Narratives In Terrorism Cases: Kerala HC Grants Bail To 17 PFI Members Accused In RSS Leader's Murder

The Court was considering the criminal appeals moved by 26 persons belonging to Popular Front Of India (PFI) who were accused of allegedly murdering RSS Leader Srinivasan at Melamuri Junction in Palakkad Town in Kerala on April 16, 2022.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V M granted bail to seventeen accused persons on the finding that there exists no reasonable ground to believe that the accusations made against them were prima facie true.

“Over and above the principles gleaned from the precedents referred above, we feel that in cases such as the present, where the allegation against the accused is that they were complicit in terrorism related offences, a court examining the evidence against the accused under Section 43D of the UA (P) Act has also to guard itself against any confirmation bias that might creep in based on ideological biases and false narratives prevalent in society. ..…..The role of any court, not just the constitutional courts, must be to lean in favour of the fundamental rights of the accused, and not in favour of the restrictions that can be imposed on those rights”, stated the court.

The Court, however, denied bail to nine appellants (Saddam Hussain MK, Ashraf, Noushad M, Ashraf Moulavi, Ansari EP, Mohammad Ali K @ Kunjappu, Yahiya Koya Thangal, Abdul Raoof C A and Abdul Sathar) on finding that there are reasonable grounds to believe that the accusations made against them by the NIA were prima facie true and that they were disentitled to bail under Section 43D (5) of the UAPA. It said:

“Proceeding thus, we feel that it is only in respect of those appellants/accused, against whom the material relied upon by the prosecution, when taken as a whole, crosses the threshold of 'general allegations coupled with overt acts that would clearly suggest the complicity of the accused in the offence with which he is charged', that we can say with any degree of conviction that there are reasonable grounds for believing that the accusation against that person is prima facie true.”

Background Facts

Initially, the police were conducting an investigation, during which an FIR was registered followed by the filing of a charge sheet arraying 44 persons as accused, all of whom were subsequently arrested.

Later, the investigation was taken over by the National Investigation Agency (NIA) based on the allegations that the murder was part of a larger criminal conspiracy to instigate and radicalise to commit terrorist acts in Kerala. The NIA registered an FIR against the same accused persons under Sections 120B, 153A of the IPC read with Sections 13, 18, 18B, 38 and 39 of the UAPA. Thus, the case pending before the JFMC-III, Palakkad was transferred to the Special Court for Trial of NIA Cases, Ernakulam.

The NIA filed consolidated charge sheets, after which the accused persons approached the Special Court for bail. Aggrieved by the denial of bail, the accused persons have approached the High Court.

The appellants have argued that there was nothing in the charge sheet to indicate their involvement in any larger conspiracy to attract an offence under the UAPA, apart from vague allegations pertaining to the murder of Srinivasan.

On the other hand, the Prosecution submitted that accusations made against the accused were prima facie true and that grant of bail under Section 43D (5) of the UAPA could only be under exceptional circumstances.

Analyzing Section 43 D (5), the Court stated the provision provides two additional conditions apart from the conditions given in the CrPC or any other law for considering bail applications. Firstly, the accused shall not be released on bail or on his own bond unless public prosecutor has been given an opportunity for a hearing. Secondly, the accused shall not be released on bail or on his own bond if the court after perusing the case diary or the report believes that there are reasonable grounds for believing that the accusations were prima facie true.

The Court relying upon NIA v. Zahoor Ahmad Shah Watali (2009) stated that the term 'prima facie true' would mean that materials/evidence collected by the investigating agency against the accused persons on the face of it would show their involvement in the commission of the alleged offences until contradicted and overcome or disproved by other evidence.

Analyzing a catena of Apex Court decisions, the Court thus laid down the assumptions to be followed whilst considering bail applications under the UAPA. It thus held:

1. Liberty of citizens on high pedestal flowing from Article 21 of the Constitution
2. Right to fair trial integral to Article 21 except where statutory restrictions exist. If accused not enlarged on bail prior to trial, he will not able to ably defend himself in trial.
3. Presumption that accused is innocent until found guilty, it is dislodged only when accused found guilty beyond reasonable doubt by the court
4. Pre-trial detention not meant to be punitive
5. Examine materials forming part of the charge sheet against the accused and record a broad finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise to analyze if prima facie case made out or not.
6. That the degree of satisfaction to be recorded by the court to form an opinion that there are reasonable grounds for believing that the accusation is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under UAPA.
7. Court not get carried away by ideological biases and false narratives in society
8. while arriving at a conclusion that prima facie accusations against the accused are true, The court must prioritize safeguarding the fundamental rights of the accused and not in favour of the restrictions that can be imposed on those rights
9. While finding that no reasonable grounds exist to believe that prima facie accusations were true, the Court must find balance between three factors- investigating authorities must need a reasonable time to complete their investigation after taking note of the stage of investigation and materials adduced by them, possibility of the accused tampering with the evidence or witnesses, the likelihood of the accused fleeing from justice.

The Court made a detailed analysis of the charges levelled against each of the accused persons based on the above assumptions before denying bail to nine appellants and enlarging seventeen others on bail. Accordingly, the criminal appeal was disposed of.

Citation: 2024 LiveLaw (Ker) 386

Case Title: Ashraf @ Asharaf Moulavi v Union of India

Case Number: CRL.A NO.139 OF 2024 & Connected Cases

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