[UAPA] Framing Charges By Itself Is Not Sufficient To Deny Bail: J&K High Court Grants Bail To Woman Accused Of Harboring Terrorist

In allowing her plea for bail a Division bench comprising Justices Tashi Rabstan & Puneet Gupta observed,

“The framing of charge against the accused under Section 18 & 19 of the Act by itself shall not be sufficient to reject the bail to the appellant if, prima facie, the Court is of the view that the accused has otherwise made out a case for grant of bail”.

Background of the Case:

Baseerat-ul-Ain was arrested by the National Investigation Agency (NIA) in connection with a terror case. The NIA alleged that she was the wife of Hidayat Ullah Malik, a member of the terror outfit Lashker-e-Mustafa, and that she had aided him by staying with him at various locations to evade arrest.

The trial court initially granted bail to Baseerat-ul-Ain, but later cancelled it after charges under Sections 18 and 19 of the Unlawful Activities (Prevention) Act (UAPA) were framed against her.

Baseerat-ul-Ain, through her lawyer, argued that her presence with her husband (if true) was natural and did not constitute a crime. She emphasized that the prosecution's case solely relied on her co-habitation with the accused and did not establish any active participation in terrorist activities.

The NIA, on the other hand, opposed bail, stating that the charges against her established a prima facie case of conspiracy and harboring a terrorist.

Observations Of The Court:

While acknowledging the stringent nature of the Act, enacted to safeguard national security the bench underscored that individual liberty cannot be curtailed solely based on the gravity of the alleged offense.

Drawing from legal precedents, including Union of India Vs. K.A.Najeeb, Sudesh Kedia Vs. Union of India, and Vernon Vs. The State of Maharashtra, the court reiterated that the seriousness of allegations alone cannot be the sole criterion for denying bail. It pointed out that bail is a rule, and jail is an exception, emphasizing the importance of balancing the interests of justice with individual freedoms.

Delved into the specifics of the case, where Baseerat-ul-Ain, purportedly the wife of a co-accused, was alleged to have harbored and conspired with the accused the court noted that the prosecution's contentions were largely centered around her presence with the accused at various locations, without establishing any overt criminal act on her part.

“The court is of the view that the counter argument by the respondents that the acts of the appellant clearly speaks of the conspiracy angle of the appellant in facilitating Hidayat Ullah Malik in his unholy acts and also of harboring him who is a terrorist and,therefore, the concession of bail cannot be granted cannot be the reason not to grant the bail to the appellant in the case in hand”, the bench recorded.

The Court observed that these aspects did not establish a strong case of conspiracy or harbouring a terrorist and could be points for the trial to decide.

Considering the time spent in jail and the lack of a strong case against her for active involvement, the court allowed the appeal and granted her bail.

She was directed to furnish personal and surety bonds, refrain from tampering with evidence or contacting witnesses, and maintain regular attendance at trial proceedings.

Case Title: Baseerat-ul-Ain Vs NIA

Citation: 2024 LiveLaw (JKL) 55

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