'NIA Owes An Explanation' : Supreme Court Flags Discrepancy Between Witness Statement Narrated In Chargesheet & Actual Statement

The Supreme Court while granting bail to a man booked for alleged involvement with banned organization Popular Front of India (PFI), flagged “complete distortion” of statement of a protected witness in the chargesheet filed by the National Investigation Agency (NIA).

A bench of Justice Abhay Oka and Justice Augustine George Masih found that the statement in the charge sheet differs from the actual statement recorded by the magistrate.

The charge sheet included a statement from protected witness Z alleging that on May 29, 2022, the appellant attended a meeting-cum-training session at Ahmad Palace. During this meeting, the expansion of PFI, training of its members, and discussions on Muslim empowerment were allegedly discussed, with directions issued to attack individuals who had made derogatory remarks against Islam.

The Court observed that the witness had not mentioned the appellant's name as a participant in the alleged PFI meeting, and the content of the discussions as recorded in the witness statement did not include any specific directions for attacks as alleged in the charge sheet.

“Suffice it to say that what is reproduced in paragraph 17.16 is not correct. The material portion of witness Z's actual statement has been completely distorted in paragraph 17.16 of the charge sheet. Several things which protected witness Z did not state have been incorporated in paragraph 17.16. Unfortunately, paragraph 17.16 attributes certain statements to protected witness Z, which he did not make. NIA owes an explanation for that. The investigating machinery has to be fair. But, in this case, paragraph 17.16 indicates to the contrary”, the Court stated.

While granting bail, the Court further opined that the High Court ad trial court did not consider the charge sheet objectively.

“we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated”, the Court stated.

Allegations

The appellant is being prosecuted for offenses under Sections 121 (waging or attempting to wage war against the Government of India), 121A (conspiracy to commit offenses punishable by Section 121), and 122 (collecting arms, etc., with the intention of waging war against the Government of India) of the IPC, and Sections 13 (punishment for unlawful activities), 18 (punishment for conspiracy), 18A (punishment for organizing of terrorist camps), and 20 (punishment for being a member of a terrorist gang or organization) of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

A charge sheet was filed on January 7, 2023. The prosecution has alleged that the appellant's wife owned a building known as Ahmad Palace at Patna, where premises on the first floor were rented out to one Athar Parvez, a co-accused in the case. The prosecution has claimed that the premises were used for objectionable activities linked to PFI. The discussion allegedly involved the expansion of PFI, training of its members, Muslim empowerment, and plans to target individuals who made derogatory remarks about Islam.

The appellant had previously sought bail from the Special Court under the UAPA, which was denied. The High Court had also rejected his bail application while granting bail to a co-accused.

Arguments

Senior counsel Mukta Gupta for the appellant argued that there was no material evidence linking him to the alleged offenses under the UAPA. She asserted that the highest accusation against the appellant was that his wife owned the building and rented it out to Parvez, with no proven connection between the appellant and PFI's activities. She argued that if the appellant were involved in PFI's activities, he would not have installed CCTV cameras.

She contended that the case against the appellant did not meet the standards set by Section 43D(5) of the UAPA, which require reasonable grounds for believing the accusations to be prima facie true.

On behalf of the prosecution, Additional Solicitor General Aishwarya Bhati pointed to statements from protected witnesses V, Y, and Z as well as CCTV footage seized by the investigating agency. She argued that the footage showed the appellant and Parwez shifting certain items from the first-floor premises on July 6 and 7, 2022. When the police conducted a raid on July 11, 2022, the items were not found, suggesting that the appellant had tampered with evidence, she said.

Additionally, the charge sheet mentioned a sum of Rs. 25,000 being transferred to the appellant's son's account from an absconding accused, which the prosecution claimed was linked to PFI activities.

The ASG further contended that the rent agreement for the first-floor premises was fabricated to mislead the police, and that the appellant was aware of PFI's activities when he allowed the premises to be used.

Verdict

The Supreme Court noted that the appellant, a retired police constable, was arrested on July 12, 2022, and the trial had yet to progress. The Court observed that there was no evidence of any recovery of incriminating material directly from the appellant.

The appellant's alleged removal of items from the first-floor premises before the police raid was highlighted by the prosecution, but the Court pointed out that the nature of these items was not specified in the charge sheet.

Regarding the sum of Rs. 25,000 transferred to the appellant's son's account, the Court noted the appellant's explanation that it was part of the advance rent payment for the premises.

The Court found discrepancies between the statement of protected witness Z quoted in the charge sheet and the actual statement made before the Additional Chief Judicial Magistrate, Patna.

The Supreme Court concluded that while there were allegations and some material against the appellant, there was insufficient evidence to establish a strong prima facie case for his involvement in the offenses charged under the UAPA. The Court emphasized the need for reasonable grounds to believe that the accusations were prima facie true as required under Section 43D(5) of the UAPA.

The Court rejected the prosecution's arguments, and granted bail to the appellant clarifying that its observations are prima facie and will not have any bearing on the trial.

Also from the judgment- 'Bail Is The Rule, Jail Is The Exception' Even In Special Statutes Like UAPA : Supreme Court

Case no. – Crl.A. No. 3173/2024

Case Title – Jalaluddin Khan v. Union of India

Citation : 2024 LiveLaw (SC) 571