UAPA | Mere Delay In Trial No Ground To Grant Bail When Grave Offences Are Involved : Supreme Court

While denying bail to a man charged under the Unlawful Activities (Prevention) Act, 1967 ("UAPA") for allegedly promoting Khalistani terror movement, the Supreme Court on Wednesday (February 7) held that mere delay in trial is no ground to grant bail in grave offences.

To quote the Bench of Justices MM Sundresh and Aravind Kumar, "...material on record prima facie indicates the complicity of the accused as a part of the conspiracy since he was knowingly facilitating the commission of a preparatory act towards the commission of terrorist act under section 18 of the UAP Act...mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail".

Notably, the appellant/accused relied on the Court's decision in Union of India v. K.A. Najeeb, LL 2021 SC 56 where it was held that the right to speedy trial is a fundamental right and violation thereof is a ground for bail in UAPA cases. It was highlighted that the appellant had been in jail for over 5 years and in the said period, only 19 out of 106 witnesses had been examined.

The court, however, distinguished the instant case from KA Najeeb's, observing that in the said case, Najeeb's trial was separated from rest of the accused. The trial was completed with respect to the other accused and they were awarded sentences of imprisonment not exceeding 8 years. As such, the Court, in anticipation of the impending sentence in case of conviction, took into account the fact that Najeeb had already undergone a portion of the maximum imprisonment (ie over 5 years).

Further, Najeeb had initially absconded. As a result, his trial was delayed and a long list of witnesses remained to be examined in his regard. However, in the instant case, the appellant's trial was already under way and 22 witnesses (including protected witnesses) had been examined.

The Court was also of the opinion that the material on record indicated the appellant's involvement in furtherance of terrorist activities backed by members of banned terrorist organization, involving exchange of large sums of money through different channels which needed to be deciphered. Therefore, the possibility of key witnesses being influenced, if he was released on bail, could not be ruled out.

Insofar as a contention was raised on behalf of the appellant that his name was not mentioned in the terror funding chart, and that he had neither received any funds nor anything incriminating was recovered from his mobile phone, the Court was not persuaded. It said that the same did not absolve the appellant of his role in the subject crime.

Factual Background

Initially, information was received by the CIA regarding two persons hanging cloth banners near a flyover in Amritsar with the words “Khalistan Jindabad” and “Khalistan Referendum 2020” written on them. A case was registered and during investigation of the same, the banned terrorist organization named “Sikhs for Justice” was busted. In due course, persons associated with the organization, including the appellant and one Bikramjit Singh, were arrested.

The chargesheet was presented to the Trial Court in 2019, while the investigation continued and supplementary chargesheets were filed subsequently. In 2020, the investigation was transferred to NIA due to the severity of the charges involved. After the filing of a 3rd supplementary chargesheet by the NIA, charges were framed by the Special Judge in 2021.

According to the NIA, the accused had illegally received funds from "Sikhs for Justice" and channeled them through hawala to be used to further separatist ideology of demanding a separate State for Sikhs (Khalistan) and other terrorist/preparatory acts (such as attempting to procure weapons). Involvement of an ISI handler also surfaced during the investigation.

The appellant was implicated based on a disclosure statement made by accused-Bikramjit Singh to NIA. In the said statement, Bikramjit said that the appellant accompanied him and another accused (Harpreet Singh) to Srinagar for procuring a pistol. However, their contact there could not get the pistol and instead offered RDX. But the offer was declined and the three returned to Punjab.

The appellant also allegedly made a disclosure statement to a similar effect.  

At first, he sought regular bail for offenses under Sections 124A/153A/153B/120B of IPC, Section(s) 17/18/19 of UAPA and Sections 25/54 of Arms Act from the Trial Court but the same was denied on the basis that there were reasonable grounds to believe the allegations to be true. In appeal, the High Court confirmed the lower court's order noting the seriousness of the offense and that protected witnesses remained to be examined. Against the High Court order, the appellant moved the Supreme Court.

Submissions of the Parties

Before the Supreme Court, the appellant relied on KA Najeeb to challenge his incarceration for over 5 years. He further urged that 8 out of 9 protected witnesses examined had not named him and his name was missing from the relevant documentation.

On the other hand, the State relied on Section 43 D(5) of UAPA and argued that there was sufficient material to prove incriminating role of the appellant. It was highlighted that in his own disclosure statement, the appellant had mentioned that on coming to know of the purpose of the visit to Srinagar, he continued voluntarily and even suggested an alternative place to co-accused for procuring a gun. The State also informed that a total of 22 witnesses had been examined and pressed that the charges related not to an individual, but members of a terrorist gang operating at the behest of a proscribed terrorist.

Test for Bail under UAPA

After going through a plethora of decisions, including NIA v. Zahoor Ali Watali, the court summarized the two-prong test that shall be applied by courts when deciding bail applications under UAPA:

1) Whether the test for rejection of bail is satisfied?

1.1 Examine if, prima facie, the alleged 'accusations' make out an offence under Chapter IV or VI of UAPA

1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;

2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC ('tripod test')?

2.1 Whether the accused is a flight risk?

2.2. Whether there is apprehension of the accused tampering with the evidence?

2.3 Whether there is apprehension of accused influencing witnesses?

Undertaking an analysis in terms of the above, the Court rejected the appellant's appeal.

Counsels for appellant: Senior Advocate Colin Gonsalves; AOR Satya Mitra; Advocates Mugdha and Kamran Khawaja

Counsels for respondents: ASG SV Raju; DAG Vivek Jain; AORs Ajay Pal, Dr Reeta Vasishta, Karan Sharma and Arvind Kumar Sharma; Advocates Kanu Agarwal, Annam Venkatesh, Mayank Pandey, and Rishabh Sharma

Case Title: Gurwinder Singh v. State of Punjab & Another, CRIMINAL APPEAL NO.704 of 2024

Citation : 2024 LiveLaw (SC) 100

Click here to read/download judgement