Merely Seeing Accused In The Company Of A Member Of A Terrorist Organization Does Not Attract UAPA: J&K&L High Court Grants Bail

While granting bail, the Court observed that merely seeing him with a member of a terrorist organization is not enough to attract UAPA charges.

"It is, thus, clear that merely the accused having been seen in the company of a member of a terrorist organization without doing anything more is not enough to attract the applicability of UAPA Act. Keeping in view the totality of circumstances and the discussion made hereinabove, we are of the considered view that this appeal deserves to be allowed. Ordered accordingly."

Court was hearing an appeal under Section 21 of the National Investigation Act, 2008 challenging the order of Special Court rejecting his plea for bail in connection with alleged offences under Sections 13, 17, 18, 38, 39 & 40 of UAPA read with Sections 120-B, 121, 121-A & 124-A IPC.

Background

The appellant had challenged the order of rejection on the ground that the FIR was first registered on 11 January, 2020 against one Syed Naveed Mushtaq and others under UAPA, Arms Act and Explosive Substances Act. The investigation was thereafter taken over by the National Investigating Agency and the case was re-registered whereafter, the appellant came to be arrested.

Subsequently, during the pendency of his application for bail, the Respondents, allegedly, on the same set of accusations against him, filed another FIR under UAPA and IPC and as soon as the appellant was released on bail in the above mentioned case, he was arrested in the subsequent FIR.

In light of the above circumstances he submitted that his Constitutional rights have been violated.

Appellant laid much stress on the submission that once an FIR was registered against him, wherein he was released on bail, on same set of allegations, the second FIR could not have been registered against him and this being an important aspect, has been ignored by the trial Court while rejecting his bail plea. He added that trial Court failed to consider that from the charge-sheet as well as the material placed on record by way of evidence collected during the investigation, the accusations are not made out against him.

Further, it was submitted that the trial court has erred in law in not appreciating that proviso to Section 43-D(5) of UAPA Act is attracted only when the charge-sheet and the material placed in support thereof affords reason to believe that the accusation of being involved in the commission of offence punishable under Chapter IV and VI of the UAPA Act is, prima facie, true. He argued that in the present case, taking the allegations made in the final report on their face value do not make out a case of commission of any offence falling under Chapter IV and VI of the UAPA Act. It was thus submitted that the rigours of Section 43-D of UAPA Act were not attracted and this aspect ought to have been considered by the trial Court.

The Government counsel on the other hand argued that the initial FIR is not only against the appellant, in particular, but it involves a number of political persons, terrorist outfits, secessionists and influential persons, who, in order to achieve their aim of causing instability in the Union Territory and eventually to cessation of Union Territory from Union of India, have been indulging in terrorist activities.

It was submitted that the second FIR registered by NIA relates to a single transaction and therefore, the argument of sameness of the allegations in both the FIRs is not tenable.

It was contended that since the trial Court has framed charges against the appellant and, therefore, it is not open to him in this appeal to contend that the ingredients of the offences alleged against him are missing and that no offence as alleged is made out against him.

He also argued that offences allegedly committed by the appellant fall in Chapter IV and VI of UAPA Act and, therefore, the rigours of Section 43-D of UAPA Act are triggered.

Findings

Court noted that the object behind the denial of bail is always preventive as opposed to punitive. The bail in the bailable offences is as a matter of right and subject only to furnishing of security as an assurance of the accused for his/ her submission whenever demanded by legal authority, whereas in the matter of non-bailable offences, it is the discretion of the Court, which, of course, is to be exercised by the Court on well defined parameters of law.

"The most fundamental distinction between the general bail provisions and the bail provisions engrafted under UPA Act owes its origin to sub-Section (5) of Section 43-D of UAPA Act which, in addition to the general restrictions on the grant of bail imposed by the Cr.P.C, also provides that the person accused of an offence punishable under Chapter IV and VI of UAPA Act shall not be released, unless the Public Prosecutor has been given an opportunity of being heard and if the Court is of the opinion that there are reasonable grounds for believing that accusation against such person is prima facie true. It is, thus, clear that the regular bail provisions under UAPA Act are distinct from similar provisions made in other enactments. While most of the statutes require recording of an opinion by the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, UAPA Act requires recording of an opinion by the Court deciding the bail that there are grounds for believing that accusation against such person is prima facie true." Court said

Court said that the expression "prima facie true" would mean that the material/evidence collected by the Investigating Agency in reference to the accusation against the concerned accused in the FIR must prevail until contradicted, overcome or disapproved by other evidence and on the face of it, shows the complicity of such accused in the commission of stated offence.

It was observed that the approach to regular bail under UAPA Act for terrorist acts is higher than the offences under IPC but comparatively less than what was required under the repealed POTA and TADA.

Court said that grant of bail is a discretion, but this discretion is to be used judiciously. And grant or denial of bail for commission of offences under UAPA Act is a power of the Designated Court which is required to be exercised on the well settled legal parameters laid down in the Cr.P.C for grant of bail hedged by Section 43-D(5) of UAPA Act.

"UAPA Act, as is apparent from its name, was initially envisaged to be a preventive legislation. It made provisions more or less for preventing the unlawful activities. It was, however, due to the compelling circumstances, UAPA Act became what it was never meant to be. Without going much into the history of legislation, suffice it to say that UAPA Act , which was initially enacted to provide for more effective legal mechanism to prevent certain unlawful activities of individuals and association, later on took within its sweep the robust legal frame work for dealing with terrorist activities and the matters connected therewith" Court said

With regard to the present case the court said that the appellant is not charged with Section 15 of UAPA Act and, therefore, the reverse burden provision contained in Section 43-E of the UAPA Act is not attracted. On viewing the instant case in the light of settled legal position, it was observed that the trial Court has not exercised the discretion in consonance with the settled legal principles on grant or refusal of the bail. Court agreed with the counsel for appellant that he was charged under Section 18 of UAPA Act read with Sections 120-B and 121-A IPC, but no material or evidence is brought on record by the prosecution to sustain the charge.

Court also said that from reading of the final report, it was abundantly clear that the prosecution is relying upon the evidence collected during the investigation which only points to the appellant having been seen in the company of one Yousaf Gadoora, an alleged over ground worker of a proscribed terrorist organization.

And that prima facie, Court could not find any allegation in the final report which shows the association of the appellant with any terrorist organization, that too, with an intention to further its activities. Rather, the appellant is shown to be a member of a recognized political party i.e. Peoples Democratic Party which has remained in power in the erstwhile State of Jammu and Kashmir. There is nothing believable on record to demonstrate that the appellant has supported any terrorist organization with an intention to further activities of such organization.

"Simply because the appellant has been seen on some occasions with a person with doubtful credentials cannot itself lead to the conclusion that the appellant is either a member of a terrorist organization or is lending support to such organization with an intention to further its activities."

Court said that the evidence gathered by the prosecution is too sketchy to be believed prima facie true, that too, with a view to deny bail to the appellant. The gravamen of allegation against the appellant is that he was hobnobbing with a member of a terrorist organization with a view to further his political aspirations.

"On the close scrutiny of the material placed on record in the shape of statements of various witnesses, the prosecution appears to have prima facie established that the appellant was meeting with and was seen in the company of one Yousaf Gadoora, an over-ground worker, a member of terrorist organization. Whether this meeting was aimed at supporting the terrorist organization by providing funds and other logistics is not substantiated by any of the statements of the witnesses recorded during the investigation. There is no evidence on record which, prima facie, shows that the association of the appellant with the terrorist Yousaf Gadoora was with an intention to further the activities of the terrorist organization," Court said

In view of the above observations, the court was of the view that the appeal must be allowed. The Court accordingly set aside the order passed by NIA Srinagar. And granted bail.

Advocate Sharik Reyaz for Petitioner and AAG Asifa Padroo for State

Case Title: Waheed ur Rehman Parra V/s UT of J&K through Investigating Officer, P/S Counter Intelligence

Citation : 2022 LiveLaw (JKL) 35

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