'Bound By Supreme Court Observations About Prima Facie Case' : Delhi High Court On Zahoor Ahmed Shah Watali's Bail Plea

The Delhi High Court yesterday renotified Kashmiri businessman Zahoor Ahmad Shah Watali's appeal for bail on account of lapse of time, in connection with a terror funding case.

The bench of Justices Sidharth Mridul and Anup Jairam Bhambhani has renotified the case for hearing in August after the lower court would have passed order on framing of charges.

The bench said that as the Supreme Court had earlier held that the National Investigation Agency has gathered enough evidence to believe that the accusations against Watali are prima facie true, it is bound by that.

Watali has been accused of transferring funds received from Lashkar-e-Taiba chief Hafiz Saeed, the Pakistan High Commission in New Delhi, Pakistan's Inter-Services Intelligence, among others, to Hurriyat leaders.

Adv Shariq Reyaz, appearing for Watali sought to rely on a case law for bail in cases where a certain amount of time has lapsed, and submitted that it's been 4 years since Watali was taken into custody. He also pressed upon the court to take into consideration Watali's age and health.

The court said that it can't discharge Watali on the mere ground that the trial will take interminably long, as it is not Watali's case that he is not prima facie guilty.

The court further said that its recent judgment granting bail to Delhi riots' accused Asif Iqbal Tanha is itself pending adjudication, and does not apply to Watali's case.

Earlier, the Supreme Court had set aside the Delhi High Court order which granted regular bail to Jammu and Kashmir based influential businessman Zahoor Ahmad Shah Watali in the terror funding case.

Allowing the appeal filed by the National Investigating Agency, the bench comprising Justice AM Khanwilkar and Justice Ajay Rastogi observed that the designated NIA Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.

The allegations against Watali, a septuagenarian, are that he had acted as a conduit for transfer of funds received from terrorist Hafiz Muhammad Saeed, ISI, Pakistan High Commission, New Delhi and also from a source in Dubai, to Hurriyat leaders/secessionists/terrorists; and had helped them in waging war against the Government of India by repeated attacks on security forces and Government establishments and by damaging public property including burning schools etc.

Watali is charged under Sections 120B, 121 and 121A of the Indian Penal Code and Sections 13,16,17,18,20,38,39 and 40 of the Unlawful Activities (Prevention) Act, 1967.

While setting aside the High Court order, the bench observed that the High Court had ventured into an area of examining the merits and demerits of the evidence. The totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, was required to be reckoned and not by analysing individual pieces of evidence or circumstance, the bench said. Taking note of the material record in the case, the bench had observed,

"In our opinion, taking into account the totality of the report made under Section 173 of the Code and the accompanying documents and the evidence/material already presented to the Court, including the redacted statements of the protected witnesses recorded under Section 164 of the Code, there are reasonable grounds to believe that the accusations made against the respondent are prima facie true. Be it noted, further investigation is in progress."

While setting aside the High Court order, the bench further had observed:

"The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true."