Even in UAPA, bail has to be rule, says Supreme Court

Supreme Court ruled that bail should be the norm and jail an exception, even under UAPA, granting bail to a man accused of renting his premises to PFI members.

The Supreme Court has held that bail should be the rule and jail an exception even under laws such as the Unlawful Activities Prevention Act (UAPA), while granting bail to a man accused under the anti-terror law for renting his premises in Bihar to members of banned outfit Popular Front of India (PFI) who were seeking to disrupt the visit of Prime Minister Narendra Modi to the state in July 2022.

A bench of justices AS Oka and Augustine George Masih held that denying bail in deserving cases is a violation of citizens’ fundamental right to life and liberty. (HT Photo)

A bench of justices AS Oka and Augustine George Masih held that denying bail in deserving cases is a violation of citizens’ fundamental right to life and liberty. “Once a case is made out for the grant of bail, the court cannot decline to grant bail. If the courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution,” the bench held.

“Bail is the rule and jail is an exception is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied,” it added.

The judgment comes days after the top court took exception to the approach by trial courts and high courts to play safe in matters of granting of bail. In its order of August 9, granting bail to Aam Aadmi Party (AAP) leader Manish Sisodia in the Delhi excise policy case, the top court said, “It is high time that the trial courts and the high courts should recognise the principle that bail is rule and jail is exception.”

In March, the same sentiment was echoed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud while addressing a gathering of district judges in Gujarat. He commented that bail being the rule is steadily “losing ground” in district courts and this trend needs “thorough evaluation” as bail appeals are increasingly landing up for consideration before the top court.

In the present case, the court was hearing the bail plea of Jalaluddin Khan, who was arrested by the National Investigation Agency (NIA) on July 12, 2022 , a day after a raid at the premises owned by him led to documents relating to unlawful activities aimed at disrupting the sovereignty of India and literature pertaining to PFI seeking to install pan-Islamic rule in the country by subverting the Constitution. Both the trial court and Patna high court rejected bail to Khan, leading to his appeal before the top court.

The court directed the petitioner to be produced before the trial court within a week and fix bail conditions in the presence of the prosecutor for his release. Justice Oka, writing the judgment for the bench, stated: “When a case is made out for a grant of bail, the courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But the duty of the courts is to consider the case for grant of bail in accordance with the law.”

The bench set aside the earlier orders rejecting bail, saying, “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 judgment also pulled up NIA for “distorting” facts before the court, as it found that the statement given by a crucial witness alleging criminality against the petitioner was not recorded in the same manner in the charge sheet.

“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,” the bench observed, adding, “NIA owes an explanation. The investigating machinery must be fair. But, in this case, paragraph 17.16 indicates to the contrary.”

NIA was represented at the hearing by additional solicitor general (ASG) Aishwarya Bhati while senior advocate and former Delhi high court judge Mukta Gupta argued for the accused.

Gupta took the court through the evidence produced by NIA to show how the evidence failed to disclose any of the offences of unlawful activity, conspiracy, or that the petitioner was a member of an unlawful body, as alleged against him in the charge sheet.

The court noted that the raid at his building took place on July 11, 2022, which led to recovery of documents from the room of his tenant Athar Parwez, while no recovery was shown from Khan. ASG Bhati claimed that CCTV footage of the building showed the petitioner and the tenant (Parwez) shifting some things from the rented premises at first floor. However, the court did not find this fact recorded in the charge sheet. Moreover, the bench reasoned, “If the appellant intended to shift incriminating material circulated by PFI, he would have shifted the material (PFI literature, etc) mentioned in the charge sheet.”

Gupta argued that if petitioner intended to allow objectionable activities of PFI in his premises, he would not have installed CCTV cameras and there were other shops and establishments operating from the same building.

On an overall analysis, the bench concluded, “There is nothing in the charge sheet which shows that the appellant has taken part in or has committed unlawful activities as defined in UAPA...There is absolutely no material on record to show that there was any conspiracy to commit any terrorist act to which the appellant was a party.”

It further stated that even the allegation that the petitioner “knowingly facilitated the commission or preparation of terrorist acts” by letting out his premises was prima facie not made out. On reading the charge sheet, the bench concluded, “It is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UAPA is prima facie true.”

The petitioner was a retired police constable and the building was owed by his wife. He was charged under offences of waging war against government, conspiracy to wage war punishable under Sections 121, 121A and 122 of the Indian Penal Code (IPC) and Sections 13, 18, 18A and 20 of UAPA.