NIA Court Denies Bail To Pulwama Terror Accused Insha Jan, Holds Prima Facie Material Indicates Involvement In Conspiracy

The Court was hearing an application for bail filed by Insha in RC wherein she is facing charges under Sections 120-B, 121, 121-A, 122, 123, 307 and 302 RPC, Sections 7/25/27 of the Arms Act, Sections 16, 17, 18, 18-B, 19, 20, 21, 38 and 39 of the UAPA and Sections 3, 4, 5 and 6 of the Explosive Substances Act.

Special Judge under the NIA Act, Prem Sagar, considered the rival submissions and the material on record. The Court observed, “Material available on record indicates the involvement of the applicant in furtherance of conspiracy for unlawful activities which needs to be corroborated from other relevant witnesses yet to be examined.”

The bail application stated that the NIA challan had been produced before the Court on August 25, 2020 and that the applicant had remained in custody for more than six years. The applicant contended that the prosecution case was false and that no incriminating material had been recovered from her either at the time of arrest or subsequently.

The applicant further relied upon the stage of the trial, pointing out that charges had been framed on December 10, 2022 and that only a fraction of the prosecution witnesses had been examined. The defence argued that 49 witnesses had been examined out of 240 listed witnesses and claimed that, at the existing pace, the trial could take several more years to conclude.

Long incarceration was also pressed as a ground for bail. The applicant claimed to be suffering from chronic dermatological problems, cervical spondylosis and chronic oculogenic headache and argued that she required specialised medical treatment and a homely atmosphere for recovery.

The NIA opposed the application. It submitted that charges had already been framed against the applicant on the basis of prima facie material and that the order framing charge had not been challenged and had consequently attained finality. According to the NIA, in view of the offences under Chapters IV and VI of the UAPA, Section 43-D(5) imposed a statutory restriction on grant of bail.

The NIA further attributed a specific role to the applicant, alleging that she and her father facilitated safe shelter for Jaish-e-Mohammed terrorists at their house and provided them food and other logistical assistance. The agency alleged that terrorists, including Muhammad Umar Farooq and Mohammad Kamran Ali, had visited the house and that other terrorists subsequently stayed there with arms and ammunition.

Court's Observation:

The Court first considered the statutory framework governing bail. It noted that at the stage of bail, a detailed examination of evidence or elaborate documentation of the merits is not ordinarily required, particularly where the accused faces serious offences punishable with life imprisonment or death.

The Court observed, “The law in regard to grant or refusal of bail is very well settled. The court while granting bail should exercise its discretion in a judicious manner and not as a matter of course.” It further noted that the expression “reasonable grounds for believing” requires the Court to ascertain whether there is a genuine case against the accused supported by prima facie material, rather than determine guilt beyond reasonable doubt at the bail stage.

On the evidence concerning the applicant's alleged role, the Court found that the material available indicated her involvement in furtherance of the alleged conspiracy. The Court noted that relevant witnesses were yet to be examined and that their evidence would corroborate the material already available on record.

The Court also considered the applicant's argument concerning delay in conclusion of trial. It noted that the trial was already underway and witnesses were being examined on the dates fixed, except on some occasions for reasonable causes or where counsel was unavailable. The Court rejected the proposition that the pendency of a long trial, by itself, could override the statutory restrictions applicable to offences under a special enactment.

The Court observed, “Arguments that delay will be caused in trial pertaining to offences as one involved in the instant case is not tenable in view of catena of Judgments and a ground to grant bail.” It cautioned that accepting such an approach would effectively result in persons accused under special statutes being released after a specified period irrespective of the prima facie material relied upon by the prosecution.

The Court separately considered the medical ground. The applicant had claimed that her ailments required specialised treatment unavailable in custody. The NIA, however, submitted that she was receiving medical treatment in jail and that there was no material establishing that her condition was so serious as to require release on bail.

On the central statutory question, the Court held that the applicant was facing serious offences under Chapters IV and VI of the UAPA and that the material on record was sufficient to presume that the accusation against her was prima facie true. The Court consequently held that the restriction contained in Section 43-D(5) of the UAPA operated against her release on bail.

The Court also rejected the grounds of prolonged incarceration and medical condition, holding that the delay in trial was not attributable to the prosecution and that the applicant's medical condition was not shown to be life-threatening so as to warrant bail.

Accordingly, the Court dismissed the bail application while clarifying that its observations were confined to adjudication of the bail application and would have no bearing on the merits of the main trial.

Case Title: Insha Jan @ Insha Tariq v. NIA

Appearances

Applicant: Yogesh Bakshi, Advocate

NIA: K.S. Pathania, SPP; Chandan Kumar Singh, PP NIA; Ashwani Verma, PP NIA

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