[UAPA] SC's Prabir Purkayastha Judgement Mandating Giving Reasons For Arrest To Accused In Writing Not Applicable Retrospectively: Kerala HC
Kerala High Court held that the direction of the Supreme Court in Prabir Purkayastha v State (NCT of Delhi) (2024) which held that for an arrest under UAPA to be valid the arrestee should be furnished with grounds of arrest in writing, would only need to be applied prospectively.
It was held that arrests made before the date of judgment cannot be considered invalid for the reason that the arrestee was not informed of the grounds of arrest in writing.
The court said that there is no requirement under the provisions of the Unlawful Activities (Prevention) Act (UAPA) to inform the arrestee grounds of arrest in writing. However, it noted that in Prabir Purkayastha, the Supreme Court held that the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution and any infringement of the fundamental right would vitiate the process of arrest and remand. The Court had held that this interpretation of the provisions of UAPA would bind all the courts in the country.
The Supreme Court had relied on the decision in Pankaj Bansal v Union of India (2023). In that case, the Court was considering the provisions of the Prevention of Money Laundering Act (PMLA). The Court while considering the powers of the authorized officers to arrest concluded that the communication of ground of arrest in writing is necessary even though the provision does not provide so.
In Prabir Purkayashta, the Apex Court held that the arrest provisions in PMLA & UAPA are similar and therefore the conclusion in Pankaj Bansal applies to arrests under UAPA also.
The High Court noted that it is mentioned in Pankaj Basal that 'henceforth' a copy of written grounds of arrest is furnished to the arrested person. It stated that this would mean that arrests made under PMLA before Pankaj Bansal is protected. In Prabir Purkayastha, the Apex Court held that the decision shall be applied pari passu to arrests made under UAPA. The High Court held that this would mean that the decision is applicable only to arrests made after the decision.
The Division Bench of Justice P. B. Suresh & Justice M. B. Snehalatha in the judgment observed:
“There cannot be any doubt that pari passu means “with equal steps, equally, without preference….In other words, the direction is that the provision contained in Section 43B(1) shall henceforth, be understood as a provision directing communication of the grounds of arrest to the accused, in writing. Needless to say, the said judgment would not invalidate arrests already made as on the date of judgment.”
Background of the Case
The petitioner is the 4th accused in a UAPA case. He is challenging the dismissal of his bail application by the Special Court of Trial for NIA cases, Ernakulam. He is accused of harbouring the 2nd accused.
The Central Government had received information that an ISIS/ IS – KP, a proscribed terrorist organization was working in secrecy to commit acts prejudicial to the sovereignty and integrity of India by conspiring to target certain prominent members of the society and religious places of other community to commit a terrorist act and create disharmony in the society.
The organization identifies gullible Muslim youths and radicalises them through encrypted communication channels to join ISIS/ Is-KP and to raise funds for furthering the activity of the organization. The Government asked the NIA to investigate the matter.
The prosecution case is that the 2nd accused was an active member of the Popular Front of India (PFI) and was involved in many of their criminal activities. He was associated with India Fraternity Forum (IFF), the overseas forum of PFI while in Qatar in 2012. He conspired with the 1st accused to establish an ISIS module in Kerala and recruit youths to it. As per the plan, they established an ISIS module in Kerala and recruited several persons to further the activities of ISIS. They along with 3rd and 4th accused committed several crimes to raise funds for their activities.
It was stated that they conducted a recce of prominent Hindu Temples and prominent persons of other communities for targeting and looting. 2nd accused propagated ISIS ideology through social media, secret communication platforms and in person.
The petitioner is alleged to have harboured the 2nd accused despite it being wildly publicized in the media that he was involved in terrorist activities. He arranged a lodge room in his name for the 2nd accused at his expense, and gave him a mobile and 2 sim cards taken in the name of his wife and a friend. Thus he was accused of knowingly making arrangements for the hideout of 2nd accused.
The petitioner's defence was that he had no knowledge that the 2nd accused was wanted for terrorist activities. He knew 2nd accused beforehand and had monetary transactions with the relatives of 2nd accused for quite a long time. The brother-in-law of 2nd accused sent him to the appellant to train him in stock trading business and the arrangements were made for the said purpose.
Observations of the Court
The Court noted that as per S. 19 of UAPA, for harbouring to be an offence, it should be done knowing that the person is a terrorist. The Court said that to be a 'terrorist' under this provision, it is not necessary that his name should be included in the 4th Schedule to the Act.
The Court said that only because the activity of the 2nd accused was reported in newspapers, it cannot be inferred that the appellant knew about the activities of the 2nd accused. This is to be proved during the trial.
However, the court held that it is difficult to believe that the appellant made all the arrangements to train the 2nd accused in the stock trading business. He was also a close acquaintance with the family of 2nd petitioner. Therefore, it is difficult to presume that the appellant did not know about the activities of 2nd accused. There are reasonable grounds to believe the accusation against the appellant is true. The Court held that the restriction of Section 43D(5) would apply. As per the Section, if a bail application is opposed and if there are reasonable grounds to believe the accusation is prima facie true, the Special Court shall not grant bail.
The appellant had argued that the restriction under Section 43D(5) does not apply to constitutional courts. The Court held that this restriction would not restrict the jurisdiction of constitutional courts to grant bail to an accused in UAPA cases on grounds of violation of Fundamental Rights and this would cover procedural fairness, access to justice and speedy trial. However, the court added that since the appellant was arrested only on 09.01.2024, it is too early for him to contend that any of his fundamental rights have been infringed.
The Court also refused the contention that the arrest is invalid as the accused was not furnished with reasons for arrest in writing. The prosecution submitted that the reasons of arrests were informed to him orally.
The Criminal Appeal was hence dismissed.
Counsel for the Appellant: Advocates S. Rajeev, V. Vinay, M. S. Aneer, Prerith Film Joseph, Anilkumar C. R., K. S. KiranKrishnan, Nourin S. Fathima
Counsel for the Respondent: Additional Solicitor General of India Adv. Arul Sunderesan, Adv. Prenjith Kumar K. S.
Case No: Crl. A. No. 673/ 2024
Case Title: Saheer E.P. v National Investigating Agency
Citation: 2024 LiveLaw (Ker) 459