On May 10, 2024, a Court in Srinagar granted bail to Kashmiri journalist Asif Sultan in a case under the Unlawful Activities Prevention Act (UAPA) in connection with a 2019 incident of violence by prisoners lodged in the Srinagar Central Jail. The Special Judge Designated Under NIA Act Srinagar in its order of release held that mere use of the UAPA provisions against an accused would not warrant rejection of bail in ignorance of other binding requirements.
It is essential to note that though the current case had been lodged by Police Station Rainawari in the year 2019 and yet Sultan had been arrested by the police only this year in February, just days after he had been released from detention on orders of Jammu & Kashmir and Ladakh High Court in a preventive detention case.
Facts of the case:
As per the police report submitted in the current case, the allegations against the accused/ applicant were that on April 4, 2019, the accused along with other jail inmates in the Central Jail Srinagar had set ablaze few barracks, shouted anti national slogans and had pelted stones on jail employees due to which some officials sustained injuries. As per the FIR in the case, the applicant had been booked for allegedly indulging in the offense of rioting, unlawful assembly, attempted murder under provisions under Unlawful Activities Prevention Act.
The applicant had approached the court seeking his release on bail in the present case on the grounds that the police had arrested him without any reason or rhyme. It had also been alleged by the applicant that the he had been facing incarceration for last more than 5 years under various laws, and was undergoing detention under the Public Safety Act when the present offense had been alleged to have taken place. It is to be noted that Sultan was arrested in 2018 under various charges including harbouring terrorists. He was granted bail in April 2022 but was immediately booked under the Public Safety Act (PSA), a law that allows detention without trial. Only two days prior to his arrest in the present case, the journalist had been released by a jail in Uttar Pradesh in February, two months after Jammu & Kashmir and Ladakh High Court had quashed the PSA case citing procedural lapses. He was then re-arrested for his alleged involvement in the 2019 jail violence.
Arguments raised by the applicant:
The main argument raised by Sultan’s counsel was that the accused was innocence and there was a dearth of evidence linking him to the alleged offenses. It was vehemently argued before the Court that Sultan was a peaceful citizen with no connection to the violent incident.
“It would also be expedient to brought before this court that the accused has no connection with the above-mentioned FIR as he was under detention and how could a person commit a crime when he is already going through the detention. (Sultan) is a peaceful citizen of union territory and the accused is peace loving, law abiding citizen having a high social status and a highly esteemed repute and honour in the locality society and in his neighbourhood; that no prima facie case is made out against the aforementioned accused for the commission of offences alleged in the FIR and he is not even remotely connected with the commission of offences alleged in the FIR or with the commission of offences as such, he is facing detention without any reason and justification” (Para 1)
In addition to this, Sultan’s counsel claimed that the whole premise of the case of the prosecution is based on the alleged shouting of anti-nation slogans and pelting of stones, during which the applicant was not present at the place of occurrence.
“Learned Counsel for the accused /applicant has argued that there is no direct evidence on record which could implicate the accused person/applicant with the commission of crime. He has argued that the whole case of prosecution is based upon alleged shouting of anti-national slogans and pelting of stones on the jail/police officials. He further argued that the case is of the year 2019 and the accused was not present at the place of occurrence. Lastly, it is requested that the accused person/applicant is in custody for the last approximately 72 days and therefore he should be granted bail in the interest of justice.” (Para 6)
Arguments raised by the prosecution:
The said plea for bail had been opposed by the prosecution, which had urged the court to not grant relief keeping in view the seriousness of the allegations raised against the applicant.
“That, there is credible and cogent evidence available at the strength of which it can be safely submitted that there are reasonable grounds to believe that the accused person is involved in the commission of above referred offence, as such grant of bail at this stage will cause impediment in the smooth conduct of investigation. That, the offences and activities in which the above-named accused person is involved being highly antinational. Lastly it is prayed that the bail application be rejected in the interests of justice, society and nation at large.” (Para 4)
Observations of the Court:
1. Factors to be considered while granting bail
Additional Sessions Judge Sandeep Gandotra in the order emphasised upon the necessity of the court to consider certain factors while dealing with a bail plea in a case where serious allegations have been raised. These factors are:
“(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant
(c) Prima facie satisfaction of the court in support of the charge
(d) Impact of such offences on larger public interest.” (Para 9)
Observing the same, the Court further highlighted that mere use of the UAPA provisions against an accused would not warrant rejection of bail in ignorance of other binding requirements.
“There can be no dispute at all that so far as the investigation into allegations of commission of offence under the Unlawful Activities (Prevention) Act, 1967 is concerned, that there is compelling state interest in tackling such serious crimes. However, mere use of this statutory provision would not ipso-facto warrant rejection of applications of bail ignoring the other binding requirements.” (Para 10)
In furtherance to this, the Court stated that as per the guidelines laid down and judgements delivered by the Supreme Court in petitions of bail, it has been established that the power to grant bail is not be exercised by the Sourt as if the punishment before trial is being imposed.
“The two most important considerations that would determine the granting or refusing the bail to the accused are the likelihood or otherwise of the accused absconding or attempting to tamper with the prosecution evidence. Undoubtedly, the other consideration shall also weigh for consideration of a bail matter.” (Para 11)
2. Charges levied against the applicant
In the order, the Court opined that the occurrence of the alleged offense took place more than 5 year ago. In addition to this, pursuant to the arrest of the applicant, a sufficient amount of time, approximately 2 ½ months (72 Days), had been provided to the investigating agency to conduct the custodial interrogation of the applicant.
3. Conduct of the applicant
The Court had observed in its order that the prosecution had not brought to the notice of the court that the conduct of applicant in judicial custody has been such that the court should be wary of granting in bail. Additionally, the Court also highlighted that the applicant is a permanent resident of Jammu and Kashmir, decreasing his chances of fleeing. With this, the Court held that further detention of the applicant in the custody shall not serve any purpose.
Order of the Court, imposition of stringent bail conditions:
The Court noted that Sultan had not been booked under those Sections of UAPA for which he would have been required to meet the stringent conditions of bail. Based on the observations of the Court highlighted above, the Court ordered in favour of the granting bail to Sultan.
“Having regard to the facts and circumstances of the case, the nature of the allegations against the accused & the punishment prescribed for the same, the period of detention of the accused i.e. the accused has been in the custody from the last 72 days, the fact that the recovery has been made from the place of occurrence and sent to FSL and most of investigation has been completed, the interest of justice will be served in case the applicant is admitted to bail, at this stage.” (Para 13)
It is essential to note that the Court directed Sultan to furnish a bail bond of Rs.1,00,000/- each with one surety. As per the order of the court, certain bail conditions have also been imposed on Sultan which are stringent in nature in order to restrictions on Sultan’s communication methods and movements. These conditions include prohibition on using any secret/encrypted messaging apps or any proxy networks in order to remain anonymous and requiring permission from the court in case he wants to buy another mobile handset or a new SIM card in event of damage, loss, theft or upgrade. In addition to this, he has been directed to appear before the investigating officer as required, not tamper with evidence, and refrain from influencing witnesses.
The Court order also laid out detailed
“a) That the accused/applicant shall appear before the IO of the case as and when required;
- b) The accused person/applicant shall not in any way misuse there liberty nor shall they get in touch with any of the witnesses or try to influence the course investigation.
- c) That the accused person/applicant shall not temper with the evidence of the prosecution in any manner;
- d) That the accused person/applicant shall not leave the territorial jurisdiction of this court without prior permission of the court.
- e) That the accused person/applicant shall not change his residence during the period of bail, without informing this court;
- f) That the accused person/applicant shall disclose/provide their mobile numbers issued in his name along with telecom network to Investigating Officer/ SHO of concerned police station;
- g) That the accused person/applicant shall neither use any secret/encrypted messaging apps or any proxy network (viz VPNS) to remain anonymous and circumvent provisions of India Telegraph Act and Indian Wireless Act and orders/restrictions issued there under nor provide any type of telecommunication facility from his number or device to other person through hotspot, WiFi etc.
- h) That, accused person/applicant shall will disclose the details of cell phone device to be used by him (IMEI number and make MI, Samsung, Oppo etc) to the investigating officer/ SHO of concerned police station;
- i) The accused person/applicant shall not use any mobile number or device other than the ones disclosed to the Investigating Officer /SHO of concerned police station;
- j) In case the accused person/applicant wants to buy another mobile handset or a new SIM Card in the event of damage, loss theft or to upgrade, he shall seek prior permission from this court and shall furnish the information to the IO of the case/ SHO of concerned police station; and
- k) That the accused/applicant shall not commit any offence in the future”
The complete order can be read here:
Related:
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Kashmir: Journalist Aasif Sultan jailed under PSA, after getting bail