On November 9, a man booked under provisions of Unlawful Prevention of Activities Act (UAPA) was granted bail by the Punjab & Haryana High Court on the ground that no prima facie case had been made out against him. The man had been accused of allegedly planning to commit some terrorist acts based on relations with Pakistan.
The said judgment was delivered by a division bench of Acting Chief Justice Ritu Bahri and Justice Manisha Batra. The bench noted that no prima facie case has been made against the accused which points to him being part of any conspiracy to form membership of a terrorist gang with the aim of committing acts against the interest of the nation.
“On the basis of allegations as levelled against the appellant, prima facie no case can be stated to have been made out to presume that there had been any conspiracy between the appellant and the co-accused to form membership of a terrorist gang and to commit acts against the interest of the nation,” the bench ordered in its judgment. (Para 10)
Facts of the case:
The Court was deciding the bail plea of one Gursewak Singh, filed against the order of the Special Judge, Amritsar dismissing his bail application. It was alleged that Singh was a part of the gang who was hatching plans to commit some terrorist acts in different places in the country. Singh had been accused of having relations with “enemy country Pakistan” through mobile phones, wireless sets and other technological instruments. It was also submitted that as per disclosure statement of the co-accused the appellant and other accused had robbed 30 kg of gold from IIFL Gold Loan Branch, Gill Road, Ludhiana.
Notably, the FIR (First Information Report) lodged against the accused in 2020 invoked Sections 379-B (Snatching after preparation made for causing death, hurt or restraint), 382 (Theft after preparation made for causing death, hurt or restraint), 399 (Making preparation to commit dacoity), 402 (Assembling for committing dacoity), 411 (Dishonestly receiving stolen property), 467 (Forgery of valuable security, will, etc.), 468 (Forgery for purpose of cheating), 472 (Making or possessing counterfeit seal with intent to commit forgery), 473 (Making or possessing counterfeit seal with intent to commit forgery) of the Indian Penal Code (IPC). Sections 15, 16, 17, 18, 18B of UAPA and Section 25 sub sections 6, 7 and 8 of Arms Act and Section 52/54 of Prisons Act were also invoked in the FIR.
In February 2021, the Special Court had dismissed the application filed by Singh for regular bail. Later, in April 2022, the Special Court had also dismissed Singh’s application requesting grant of default bail under Section 167 (2) of the Code of Criminal Procedure (CrPC). A Special Leave Petition (SLP) was then filed by the accused before the Supreme Court. The same was set aside by the Supreme Court bench and the matter was remanded to the High Court with a direction to decide this appeal on its own merits. The current bail plea was now before the Punjab and Haryana High Court.
Submission by the appellant:
Singh (appellant in the bail plea moved) submitted that he had spent a period of three and a half years in custody. It was argued that that the entire prosecution in this case was carried out without obtaining any prior sanction from the competent authority. In addition to this, the appellant had alleged that no recovery had been effected from the appellant in this case, and the recovery of one pistol and four live cartridges was falsely planted upon the appellant in a case registered at Police Station Mohali which did not amount to commission of act of any terrorist activity. It was claimed that the appellant had been arrested on mere suspicion and no specific part whatsoever had been attributed to him qua commission of the offences he was accused of. Advocate Rajiv Malhotra had appeared for the appellant.
Submission by the respondent:
The plea filed by the accused was resisted by the respondents. It was alleged by the appellant and co-accused Gagandeep were accomplices in several crimes since long and had committed several crimes. They had relations with anti-national elements abroad and were committing unlawful activities. It was further clarified by the respondents that the sanction for prosecution of the appellant and other accused had been sought by the Investigating Agency in 2020. It was submitted by the respondents that there were serious allegations against the appellant and, therefore, it was stressed that he did not deserve to be given concession of bail and that the appeal was not maintainable. Alankar Narula, Additional Advocate General, Punjab had appeared for the respondents.
Observations by the Court:
On the issue of sanction of prosecution by competent authority, it was highlighted by the Court that that as per Section 45 of UAPA, no Court shall take cognizance of any offence falling under Chapter IV without previous sanction of the Central Government or as the case may be, the State Government. In this regards, the bench noted that the sanction for prosecution of the appellant and co-accused in this case had not been granted by the competent authority till the date of presentation of the challan and it was accorded later and then the said sanction is shown to have been filed in the Court along with supplementary challan report.
The court therefore held it to be “debatable as to whether the Court was even competent to take cognizance of the offences punishable under Sections 16, 17, 18 and 18B of UAPA till the date when sanction was granted under Section 45 of UAPA.” (Para 8)
In regards to the allegation of committing anti-national activities and proving the involvement of the appellant in those crimes, the court observed that no specific role has been attributed to Singh to support the allegations of being involved in anti-national activities. “No material has been brought forward by the prosecution to show the connection of the present appellant with the foreign contacts with which he along with co-accused is alleged to be involved in promoting the anti-national activities.” (Para 9)
On the charges invoked under IPC and the Arms Act, the bench held that “Further, from a perusal of the material placed on record, no specific and active role is shown to have been attributed to the present appellant qua commission of offences punishable under the provisions of IPC and Arms Act (for which he has been charge-sheeted).” (Para 10)
The bench also relied on the Supreme Court’s ruling in the case of Vernon v. The State of Maharashtra and another.
The bench also emphasised on the duty of the court to be more exhaustive in cases where stringent provisions of the UAPA are invoked as bail cannot just be denied because serious allegations are made. “The statute of UAPA has stringent provisions but that makes the duty of the Court to be more onerous and it is well settled that merely because allegations were serious, on that reason alone, bail cannot be denied,” the Court observed in Para 10 of the judgment.
“He is in custody w.e.f. 05.07.2020 (July 5, 2020). Only 1 out of 38 witnesses have been examined so far. No recovery whatsoever had been effected from the appellant in this case and one revolver and ten live cartridges were allegedly recovered from him in another case which was registered prior to this case at Police Station Mohali,” the court added. (Para 10)
Decision of the Court:
The judgment in the current case had been reserved on September 12, 2023. On November 9, weighing upon the aforementioned observations made by the Court in the said case, the Court concluded that on the basis of allegations as levelled against the appellant, prima facie no case can be held to have been made out for the court to presume that there had been any conspiracy between the appellant and the co-accused to form membership of a terrorist gang and to commit acts against the interest of the nation.
The court further stated that since the appellant has been in custody for a period of about three and half years and that the trial is likely to take time, the Court granted the relief. “Keeping in view the fact that the appellant is in custody for a period of about three and half years, that the trial is likely to take time and the entire attendant circumstances of the case, in our opinion, the appeal deserves to be allowed,” the bench noted in Para 11 of the judgment.
With this, the High Court bench set aside the order of Special Court rejecting the bail to Singh.
The complete judgment can be read here:
Related:
UAPA slapped on activists of Niyamgiri Suraksha Samiti: Kahalahandi, Orissa
Beyond UAPA: Examining other central and state laws granting vast powers to Govt
Bhima Koregaon Case: Mahesh Raut, youngest accused, granted bail by the Bombay HC!
Supreme Court punishes judge for denying bail, sends him to judicial academy