Bail-If Case Diary & Other Materials Disclose Prima Facie Case Then Bar Under Proviso To S. 43D(5) Of UAPA Will Be Attracted: Chhattisgarh HC [Read Judgment]

The said provision stipulates that a person accused of an offence punishable under Chapters IV and VI of UAPA shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of CrPC is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Background

In the present case, the Appellant had been accused of putting banners and pamphlets containing anti national contents. He was also alleged to be involved in writing blogs propagating naxal movement under the aegis of Maoists organizations that had been banned by the Government of Chhattisgarh.

Accordingly, charges had been framed against him under IPC, UAPA and Chhattisgarh Special Public Security Act, 2005. The Appellant's bail application was rejected by the NIA Court, pursuant to which the present appeal was moved. He contended that neither the diary statement nor any recovery implicated him. Moreover, it was submitted that since the organization was prohibited in Chhattisgarh, any blog post or social media post made in the State of Karnataka would not constitute an offence.

Findings

Declining the Appellant's arguments, the court noted that the Police had seized hand written diary from his residence that had the effect of implicating him. The Police had also produced data analysis of his blog which contained objectionable and anti national contents.

Thus, in light of the aforementioned proviso to Section 43D(5), the court said,

"In the case at hand, there is material collected by the Investigating Officer which furnishes reasonable ground for believing that the accusation against the appellant is, prima facie, true. Thus, no case for inferring with the trial Court's order is made out."

The court explained that "while considering the prayer for grant of bail the material collected by the prosecution thus far need not be discarded nor its admissibility or otherwise is to be considered at this stage. If the case diary and other materials disclosed that the accusation against the accused is, prima facie, true, the bar under the proviso to sub-section (5) of Section 43D of the Unlawful Activities (Prevention) Act, 1967 would be attracted."

Reliance was placed on National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein the Apex Court had observed that "the totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance"

Case Details:

Case Title: Abhay Nayak v. State of Chhattisgarh

Case No.: CRA No. 1213/2019

Quorum: Justice Prashant Kumar Mishra & Justice Gautam Chourdiy

Appearance: Senior Advocate Dr. Yug Mohit Choudhary with Advocates Payoshi & Kishore Narayan (for Appellant); Addl. Adv. General Fouzia Mirza with Govt. Advocate KK Singh (for State)

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