Jalaluddin Khan was detained under the Unlawful Activities Prevention Act (UAPA). He was a retired police constable who allegedly rented the first floor of the Ahmad Palace building in a Patna locality which was registered in his wife’s name to suspected Popular Front of India (PFI) cadres who were planning to carry out disturbances during Prime Minister Narendra Modi’s visit to Bihar in 2022. The Supreme Court granted bail to the man, stating that the principle of “bail is the rule and jail is an exception” will apply even to statutes with strict bail requirements.
The bench of Justices AS Oka and Augustine George Masih emphasized the significance of granting bail when a compelling case is presented while acknowledging the gravity of the prosecution’s claims that the courts are duty-bound to assess bail requests in strict accordance with the law. It said that it is a well-established principle that “bail is the rule and jail is an exception”. This principle holds true even in cases where stringent statutory requirements apply for granting bail. The only distinction lies in the fact that bail may be granted only upon fulfilment of the statutory pre-requisites. The rule also states that the Court is not allowed to refuse to grant bail once a case has been made out for it. It stated that it would be a violation of the rights protected by Article 21 of the Constitution if courts began to deny bail in worthy cases.
The National Investigation Agency (NIA) had opposed Khan’s bail request, claiming that on July 6 and 7, 2022, Khan had been an active participant in the outlawed Students Islamic Movement of India, and was seen on CCTV footage removing specific items from the first floor. Those items were missing from the raid that the police carried out on July 11, 2022, in response to specific intelligence, suggesting that Khan had tampered with the evidence.
Justice Oka, stated that the charge sheet makes no reference to the type of items that Khan is said to have moved from the first floor of the building. In addition, the bench agreed with his attorney that he would not have installed CCTV cameras “if” he “intended to allow the conduct of the objectionable activities of PFI by giving first floor premises on rent”. Additionally, it cast doubt on the protected witness’s statement, stating that “nothing in the charge sheet indicates that the appellant has engaged in or committed unlawful activities as defined by the UAPA”. There isn’t any concrete evidence that the appellant encouraged, assisted, or encouraged the commission of any illegal acts.
The Court further noted that there is no evidence in the file to suggest that the appellant was involved in any plot to carry out terrorist acts, even if it is assumed that the co-accused were engaging in terrorist activity or preparing for it. The record does not demonstrate that the appellant encouraged, supported, counselled, or incited the commission of terrorist acts or any related preparations. The Court also emphasised that in the light of the charge sheet, it is not feasible to establish a prima facie conclusion that the appellant knowingly aided the commission or preparation of terrorist acts by leasing the first-floor premises. It is important to note that the negotiations for renting the first floor were conducted by the appellant’s son, and not the appellant himself. Furthermore, the charge sheet does not include any allegations suggesting that the appellant organized any camps for providing training in terrorism.
The provided information indicates that there is no allegation in the charge sheet that the appellant was a member of any terrorist gang. Furthermore, the charge sheet does not mention the name of any terrorist organization of which the appellant was a member.
Even if it is assumed that the appellant knew that co-accused Athar Parvez was associated with PFI, it is not listed as a terrorist organization within the meaning of Section 2 (m) of UAPA. Additionally, the charge sheet does not contain any material to show any connection of the appellant with PFI before letting out first floor premises to accused number one.
The Court further observed that the High Court and the Special Court did not conduct an impartial assessment of the information presented in the charge sheet. It appears that undue focus was placed on the activities of the PFI, potentially hindering a comprehensive understanding of the appellant’s case. The Court also said that it is crucial to emphasize that the preliminary findings outlined in this judgment are solely intended to be considered in the context of the bail application. The reasoning provided pertains exclusively to the appellant’s case and should not be construed as having any bearing on the trial or the cases of the co-accused.
The bench lastly stated that based on a straightforward interpretation of the charge sheet, it is not feasible to draw a conclusion that there are substantial grounds for believing that the appellant is prima facie guilty of committing offenses punishable under the UAPA. The UAPA Amendment Act, 2008, introduced Section 43D (5), which required a court to deny bail if there were reasonable grounds to believe that the case against the accused was prima facie true. It requires the accused to convince the court that it is unreasonable to consider the accusations as prima facie true. By shifting this burden onto the accused, the fundamental principle of criminal law, which presumes innocence until proven guilty, is altered within the framework of the UAPA.
In 2016, in Angela Harish Sontakke vs State of Maharashtra, Angela Sontakke spent nearly five years in custody on charges of spreading separatist Maoist ideology with the Golden Corridor Committee of the banned CPI-Moaist group. A bench, consisting of Ranjan Gogoi and Prafulla C Pant, granted Sontakke bail, stating that the alleged offence must be balanced against how long the accused had suffered in jail, and how likely a swift trial was. In effect, the Court granted Sontakke bail in spite of Section 43D (5), based on the Court’s 1996 Shaheen Welfare Association judgment, in which it was held that the stringent bail conditions in special criminal legislation could be justified only if swift trial took place. If there was inordinate delay, then the rights of the accused (Article 21) would be violated, and bail would have to be granted. The same precedent was followed to grant bail to Bhima Koregaon accused Sagar Tatyaram Gorkhe in 2017.
The National Investigation Agency vs Zahoor Amhad Shah Watali judgment provided a narrow interpretation of Section 43D (5), stating the court must accept the NIA’s version of events without delving into the merits of the case, thus making bail harder to secure after charges are framed by the NIA. In Union of India vs KA Najeeb, the Supreme Court highlighted the possibility of granting bail based on the violation of Article 21 due to prolonged incarceration (being imprisoned or detained).
In 2023, the Supreme Court in Vernon Gonsalves vs State of Maharashtra, diverged from the previous Watali ruling on the “prima facie true” test for granting bail, emphasising the need for evidence analysis.
—By Abhilash Kumar Singh and India Legal Bureau