Supreme Court Stays Order Of Madras High Court Granting Bail To Lawyer Arrested Under UAPA By NIA For Alleged Links With PFI

The bench of Justice M Sundar and Justice R Sakthivel of the Madras High Court had allowed the appeal preferred by the lawyer against the order of the Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Case) Poonamallee denying him bail. The High Court had however dismissed another quash petition filed by the lawyer and said that arguments regarding malicious initiation of proceedings could be raised during the trial.

Notably, the High Court had also rejected an oral request made by the Special Public Prosecutor seeking certificate for appeal to the Supreme Court under Article 134-A of the Constitution saying that Section 43D of UAPA requires to be interpreted by the Supreme Court.

“We find that Section 43D of UAPA has been elucidated and interpreted by Hon'ble Supreme Court in a long line of judgments i.e., a catena of case laws and we have respectfully referred to many of these case laws in our aforesaid common order. Therefore, we find that the ground projected by learned SPP does not really arise as Hon'ble Supreme Court has rendered many orders and judgments qua Section 43D as well as Section 43D(5) and proviso thereat and we have respectfully alluded to the same in our common order. Oral application seeking Certificate for appeal to Hon'ble Supreme Court does not fit into adumbration qua Article 134-A(b) set out supra,” the High Court had said.

Abbas was one among the five arrested by the NIA in May this year in connection with a criminal conspiracy case related to the banned organization PFI. As per the NIA, the arrests were made after conducting extensive searches and finding incriminating materials including sharp-edged weapons, digital devices and documents.

It was argued before the High Court that Abbas was being victimised as he used to regularly appear for PFI in courts. It was also submitted that though the agency came to know about Abbas’s alleged involvement, he was not made a party at the time of filing chargesheet. The NIA, however, objected to this and said that they had done everything that needed to be done and that it had incriminating materials against Abbas including an audio clip based on which he was arrested. The NIA had also submitted that the only ground on which quashing of proceeding was being sought was on the ground of malice, which was the last resort of a losing litigant and was generally not accepted as a good ground for quashing.

The office bearers of the Madurai Bar Association had also appeared before the court and deposed that Abbas was a regular practitioner for the past 16 years.

The High Court on perusing the materials available against Abbas and after going through the audio clip, had noted that the same would not be sufficient to deny him bail under Section 43D(5) of the UAPA.

“We find that the case on hand does not pass muster qua reasonable grounds for believing that accusation against the petitioner is prima facie true, to put it differently, the case diary before us (specifically the portions including audio clips to which our attention was drawn) does not cut ice qua proviso to section 43D(5) of UAPA,” the court observed.

The High Court had also observed that the organisation was banned by the Government only after filing of the FIR and even so, the organisation was not named as a terrorist organisation as per the first Schedule of the Act and was only declared as an unlawful association.

“Except broad averments in the nature of suspicion of involvement of what is described as other members of 'banned terrorist organisation of PFI' in further investigation application there is no accusation with specificity qua petitioner and as already alluded to supra, PFI has not been listed as 'terrorist organisation' in the First Schedule but has been declared vide Government of India notification as 'unlawful association'. This means that there are effectively no Chapter IV and Chapter VI accusations with specificity qua petitioner,” the court said.

The High Court had also noted that Abbas’s Facebook post against alleged custodial torture of another accused in the case in which he was appearing as counsel was not good enough to say that he would tamper with witnesses.

“This discussion thus far including discussion regarding trial court order in our view makes it clear that all the eight determinants / parameters adumbrated in Hussainara Khatoon case, reiterated / restated in Antil case stand answered in favour of the petitioner or in other words they enure to the benefit of the petitioner regarding his bail plea. Suffice to say that these are points which have impelled us to interfere with the trial court order,” the court said.

The High Court had granted bail on the condition that Abbas shall execute a bond and furnish two sureties for a sum of One lakh rupees to the satisfaction of the Special Court. The High Court also directed him not to leave Chennai city without prior permission and asked him to appeal and sign before the trial court every day. The court also directed Abbas to use only one mobile phone during the bail period and to inform the mobile number to the trial court and to make sure that the number is active and charged at all times to contact him. The High Court had also asked Abbas to surrender his passport before the trial court and in case of no passport, file an affidavit before the trial court which the trial court could verify with the Passport Officer.

Case Title: Union of India v. M Mohamed Abbas, SLP(Crl) No. 9384/2023