New Delhi: The ‘bail is the rule and jail is an exception’ principle shall also apply to cases registered under the Unlawful Activities (Prevention) Act (UAPA) — the anti-terror law that has stringent bail conditions, the Supreme Court held Tuesday.
In a significant verdict that will have a bearing on UAPA cases where a number of accused have been languishing in jail for a long time, the top court reminded high courts and trial courts about the “settled law” on bail and told them they should not hesitate to grant bail when a case was made out for one even when anti-terror charges are invoked.
Denying bail in deserving cases will violate the right to life guaranteed under Article 21 of the Constitution, which encompasses the right to “live with dignity”.
The top court issued this diktat in a bail order granted to a Bihar man arrested in 2022 for his alleged association with the Popular Front of India (PFI). Under this principle, the court reminded high courts and trial courts that they must not hesitate to grant bail when a case was made out for one.
“Even in a case like the present case (under UAPA) where there are stringent conditions for 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,” a bench led by Justice Abhay Oka observed, as it ordered the man’s release, finding prima facie that no terror charges could be made against him.
In a categorical statement, the Supreme Court said that the “bail is a rule and jail an exception” principle means that once a case is made out for the grant of bail, the court cannot decline it.
The judgment reinforces the stand the Supreme Court has taken in a slew of verdicts in UAPA cases, where it has acknowledged the importance of personal liberty while granting bail in the matters.
In May this year, a bench led by Justice BR Gavai had quashed the arrest of Newsclick owner Prabir Purkayastha, observing that his arrest did not comply with the legal procedure in UAPA.
Later, in July a bench headed by Justice J. B. Pardiwala granted bail to a man arrested on terror charges, after noting that the trial in his case was proceeding at a snail’s pace. Prolonged incarceration and delay in trial are good grounds to grant bail, the bench had said in that case.
Tuesday’s judgment comes days after the Supreme Court, while granting bail to former deputy chief minister of Delhi Manish Sisodia, underlined that the right to a speedy trial should be read into section 45 of the Prevention of Money Laundering Act (PMLA) — another special legislation that has stringent provisions like the UAPA, seen as barriers in the granting of bail to those arrested under the two laws.
Both, the UAPA and the PMLA reverse the obligations of the burden of proof, putting the onus on the accused to prove that they are not prima facie guilty, even for getting bail. A bail hearing in cases under these two laws is almost like a mini-trial.
This is a departure from ordinary criminal cases where the prosecution has to establish that the accused seeking bail is a flight risk, holds an influential position that can be misused to tamper with evidence, or is capable of influencing or threatening witnesses.
NIA affidavit ‘unfortunate’, says bench
The case in which Justice Oka’s bench delivered the verdict was filed by the National Intelligence Agency (NIA) against one Jalaluddin Khan.
Arrested in July 2022, Khan was charged with conspiring with PFI members to carry out terror attacks. Another allegation against him was that he and the co-accused were conspiring to attack PM during his visit to Bihar in 2022. His association with PFI had been established by Khan giving his house on rent to the organisation and its members, the NIA alleged. Khan was arrested alongside another PFI member.
In support of its allegations, NIA referenced statements recorded by protected witnesses. The agency filed an affidavit claiming that one of the witnesses had alleged Khan took part in a meeting with PFI members to discuss its future plans, including one to “eliminate one Nupur Sharma”, a former spokesperson of the BJP.
However, when the Supreme Court bench read the witness statement, it found no such allegations. The bench took exception to NIA attributing statements to a protected witness that they did not make and asked it to submit an explanation on this account.
“In fact, protected witness Z stated that during the meeting, emphasis was given on strengthening the status of Muslims, imparting them basic and advanced training, and strengthening the status of education, politics and administration of Muslims and Muslim empowerment. Going by the witness’s version, we find that there was no discussion about the activities of PFI in the meeting held on 29th May 2022,” the judgment recorded, terming the NIA’s affidavit on the witness’s statement as “unfortunate”.
The bench also held that the circumstances based on which the NIA had booked Khan prima facie did not disclose his alleged involvement in the case. Assuming Khan knew the co-accused was associated with PFI, the Supreme Court said, the mere association was not an offence since it was not a banned organization at that time. Also, the chargesheet filed in the case did not show any connection between Khan and PFI. The chargesheet also did not mention any specific material that showed that Khan had advocated, abetted, or incited anyone to take part in a terror act.
“Taking the charge sheet as correct, it is not possible to record a prima facie finding that the appellant knowingly facilitated the commission or preparation of terrorist acts by letting out the first floor premises. Again, there is no allegation in the charge sheet against the appellant that he organised any camps to impart training in terrorism,” the bench said, as it discarded NIA’s claim that the fact Khan had removed items from his house before the agency’s raid demonstrated his complicity.
Releasing Khan on bail, the bench directed him to appear before a special court in Bihar within a maximum of seven days from Tuesday, directing the court to allow Khan to be out on bail until the conclusion of the trial under terms and conditions decided after hearing both sides.
(Edited by Sanya Mathur)