Invoking Wrong Provision No Bar To Challenge Curtailment Of Liberty: P&H High Court Grants Man Bail Accused Of Putting Pro-Khalistan Posters

The Punjab and Haryana High Court has held that invoking an incorrect statutory provision while filing a bail appeal under the Unlawful Activities (Prevention) Act, 1967 (UAPA) cannot defeat an accused's substantive right to challenge curtailment of liberty. In doing so the Court granted bail to an accused booked under UAPA, noting his prolonged incarceration of over four and a half years and lack of strong incriminating evidence.The appeal was filed under Section 28 of the UAPA, which pertains to forfeiture of property, instead of the appropriate provision for challenging denial of bail. The primary issue before the Court was whether such a procedural defect would render the appeal non-maintainable.Justice Anoop Chitkara and Justice Sukhvinder Kaur said, "The mere invocation of an incorrect statutory provision cannot operate to deprive the accused of their substantive right to challenge the curtailment of their personal liberty by the State agencies. Every Court possesses inherent powers to rectify the clerical or procedural error(s) to ensure that mere technicalities do not impede the cause of substantial justice. Having regard to the aforesaid, the present appeal shall be deemed to have been filed under §21(4) of NIA."The FIR was registered on September 16, 2021 by the State Special Operation Cell, SAS Nagar, on the basis of secret information regarding circulation of pro-Khalistan material linked to “Punjab Referendum 2020”.The prosecution alleged that the accused persons were involved in printing and distributing posters and pamphlets advocating secession, Spreading propaganda through physical and digital means, Coordinating activities through mobile communications.Large quantities of printed material, flags, posters, and printing equipment were allegedly recovered from co-accused persons. The Court noted that the case against the appellant was largely circumstantial and no incriminating material was recovered from his house except mobile phones, Forensic examination of his phone yielded no adverse data. The case was primarily based on disclosure statements of co-accused and call detail recordsThe Bench observed that such material would be subject to strict admissibility standards under the Evidence Act."The evidence against the appellant, Sukhdev, is not direct but is based on the confessions made by the co-accused, Gurwinder, and the information gathered by the investigators during their investigation; however, all this is subject to admissibility under §25 of the Indian Evidence Act, 1872 or its new avatar §23(1) of BSA, 2023, for nothing was recovered from the appellant as per the reply filed by the state.Given the quality and legal admissibility of the evidence discussed above, there are reasons to believe that the accused has overcome the hurdles of the embargo under §43D(5) of UAPA," it noted.The Court extensively discussed the rigours of Section 43D(5) of UAPA, which imposes restrictions on grant of bail. However, relying on Supreme Court precedents, it held that the Constitutional courts retain the power to grant bail where Article 21 rights are violated and Prolonged incarceration without likelihood of early trial justifies bail.Citing Union of India v. K.A. Najeeb, the Court reiterated that restrictions under UAPA “melt down” when trial is unlikely to conclude within a reasonable time.Speaking for the bench Justice Chitkara found, "considering the entirety of facts and the period of custody which is prima facie excessive for the purpose of pre-trial incarceration, and the undertaking furnished on behalf of the appellant through his learned counsel, this Court is of the considered opinion that the accused deserves to be enlarged on bail. In the present case, as for the custody certificate placed on record, the appellant has been in custody in the present FIR for around four years and eight months and is stated to have no criminal antecedents. In such circumstances, continued incarceration of the appellant during the pendency of the present trial would occasion grave injustice."Accordingly, the appellant was directed to be released on bail, subject to compliance with the terms and conditions of the order.Mr. Vikram Satpal Anand, Advocate for the appellant.Ms. Pooja Nayar Sharma, DAG, Punjab.Title: Sukhdev Singh @ Rinku v. State of PunjabClick here to read order

Invoking Wrong Provision No Bar To Challenge Curtailment Of Liberty: P&H High Court Grants Man Bail Accused Of Putting Pro-Khalistan Posters

Aiman J. Chishti

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

Aiman J. Chishti

Invoking Wrong Provision No Bar To Challenge Curtailment Of Liberty: P&H High Court Grants Man Bail Accused Of Putting Pro-Khalistan Posters

Aiman J. Chishti

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

Aiman J. Chishti

This is a premium content
Available exclusively to
Our subscribers