Supreme Court Annual Digest 2024: Unlawful Activities (Prevention) Act [UAPA]

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5 Feb 2025 11:15 AM IST

  • Supreme Court Annual Digest 2024: Unlawful Activities (Prevention) Act [UAPA]

    Bail under UAPA, 1967 – Applicability of Section 43-D(5) – Principles and Constitutional Considerations – Long Incarceration and Delay in Trial - Prima Facie Assessment - Fundamental Rights and Speedy Trial - Precedence of Constitutional Rights - The Supreme Court reiterated the principles governing the grant of bail under Section 43-D(5) of the Unlawful Activities (Prevention) Act,...

    Bail under UAPA, 1967 – Applicability of Section 43-D(5) – Principles and Constitutional Considerations – Long Incarceration and Delay in Trial - Prima Facie Assessment - Fundamental Rights and Speedy Trial - Precedence of Constitutional Rights - The Supreme Court reiterated the principles governing the grant of bail under Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA), emphasizing Courts must assess whether the accusations are prima facie true based on the FIR, charge sheet, and case diary, considering the totality of evidence on broad probabilities. If accusations are not prima facie substantiated, bail may be granted. Inordinate delays in trial and long periods of incarceration without conviction violate Article 21 of the Constitution. Courts must harmonize statutory provisions with constitutional guarantees. While legislative intent must initially be adhered to, prolonged detention without trial mandates prioritization of constitutional rights over statutory bars under UAPA. The allegations against the appellant, including participation in meetings and protests organized by the Popular Front of India (PFI), did not establish prima facie involvement in terrorist activities under the UAPA. Protected witnesses' statements and recovered materials lacked incriminating evidence directly implicating the appellant. The appellant had been in custody for over two years without trial commencement, with 40 accused and 354 witnesses prolonging the trial. The Court set aside the High Court's denial of bail, granted bail to the appellant, and emphasized that denying bail in deserving cases contravenes Article 21. The Special Court was directed to release the appellant on appropriate terms within seven days. Athar Parwez v. Union of India, 2024 LiveLaw (SC) 1006

    Validity of default bail granted under Section 167(2) of the CrPC read with Section 43-D of UAPA - Jurisdiction of the Magistrate in granting an extension of time for filing the chargesheet in cases under UAPA - The appeal arises from an order by the High Court granting default bail to the respondents involved in a bomb blast case, under multiple charges including UAPA and the NDPS Act. The High Court held the extension of time granted by a Judicial Magistrate First Class (JMFC) was invalid as only a Designated Special Court could grant such extensions under UAPA. The Supreme Court set aside the High Court's order, emphasizing that the right to default bail under Section 167(2) CrPC must be exercised before the filing of the chargesheet. In this case, the chargesheet was filed on 29.04.2022, and the application for default bail was made on 02.09.2022, well after the filing, thereby extinguishing the right to default bail. The Court reaffirmed that the right to default bail is enforceable only until the chargesheet is filed. The jurisdictional error by the JMFC in granting an extension does not revive the right to default bail once the chargesheet has been filed. The appeal by the State was allowed, and the default bail granted by the High Court to the respondents was set aside. State of Punjab v. Sukhwinder Singh, 2024 LiveLaw (SC) 990

    The Supreme Court declared as bad in law the judgment of the High Court which held that an accused can be granted bail under the UAPA if he does not present any "clear and present danger" to the society. The High Court judgment, which granted bail to journalist also held that lowering of India's global reputation cannot be held to be a terrorist act within the meaning of Section 15 of the UAPA. The Court noted submissions that the High Court's reliance on Schenck v. United States, (249 US 47 (1919) : 1919 SCC Online US SC 62) was per incuriam in light of Indian precedents having rejected the application of the doctrine of “clear and present danger”. (Babulal Parate v. State of Maharashtra, AIR 1961 SC 884; State of Madras v. V.G. Row, [(1952) 1 SCC 410 and Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234). While declaring the High Court judgment to be per incuriam and directing that it should not be cited as a precedent, the Court however did not interfere with the bail granted to Fahad Shah. Union Territory of Jammu and Kashmir v. Peerzada Shah Fahad, 2024 LiveLaw (SC) 802

    Higher thresholds for granting bail in stringent penal statutes like the PMLA, UAPA, and NDPS Act cannot be a tool to keep an accused incarcerated without trial. V. Senthil Balaji v. Deputy Director, 2024 LiveLaw (SC) 750 : AIR 2024 SC 4760

    Validity of sanction should be challenged at the earliest instance available, before the Trial Court. If such a challenge is raised at an appellate stage it would be for the person raising the challenge to justify the reasons for bringing the same at a belated stage. Such reasons would have to be considered independently so as to ensure that there is no misuse of the right of challenge with the aim to stall or delay proceedings. Fuleshwar Gope v. Union of India, 2024 LiveLaw (SC) 729 : AIR 2024 SC 4684 : 2024 Cri LJ 4293

    Timelines mentioned in Rules 3 & 4 of the 2008 Rules are couched in mandatory language and, therefore, have to be strictly followed. This is keeping in view that UAPA being a penal legislation, strict construction must be accorded to it. Timelines imposed by way of statutory Rules are a way to keep a check on executive power which is a necessary position to protect the rights of accused persons. Independent review by both the authority recommending sanction and the authority granting sanction, are necessary aspects of compliance with Section 45 of the UAPA. Fuleshwar Gope v. Union of India, 2024 LiveLaw (SC) 729 : AIR 2024 SC 4684 : 2024 Cri LJ 4293

    Bail - Denial of - Chhattisgarh Vishesh Jan Suraksha Act, 2005 - Indian Penal Code, 1860 - National Investigation Agency Act, 2008; Section 21(4) - Co-accused had been granted bail and that there was no likelihood of early conclusion of the trial, with only 40 out of 100 prosecution witnesses examined. The petitioner has been in custody since 2020. Bail granted. Mukesh Salam v State of Chhattisgarh, 2024 LiveLaw (SC) 641

    Sections 13, 18, 18A, 20 and 43D (5) - Applicability of "Bail is the Rule, Jail is the Exception" – The principle of "bail is the rule, jail is the exception" is applicable even under stringent statutes like the Unlawful Activities (Prevention) Act (UAPA), subject to the satisfaction of statutory conditions. The Court emphasized that the duty of courts is to objectively assess the material in the charge sheet while considering bail applications, without being influenced by the severity of allegations or external factors such as the activities of associated organizations. The Court found that the charge sheet and witness statements did not prima facie establish reasonable grounds to believe that the accusations against the appellant were true. The High Court and Special Court failed to properly appreciate the appellant's case, focusing instead on the broader activities of the Popular Front of India (PFI). Denying bail in such circumstances would amount to a violation of the appellant's fundamental rights under Article 21 of the Constitution. The Court set aside the impugned orders and directed the appellant's release on bail, with terms and conditions to be fixed by the Special Court. The findings were expressly limited to the bail application and would not affect the trial or the cases of co-accused. The appeal was allowed, and the appellant was granted bail. (Para 15 & 21) Jalaluddin Khan v. Union of India, 2024 LiveLaw (SC) 571 : AIR 2024 SC 4380 : (2024) 10 SCC 574

    A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. (Para 32) Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, 2024 LiveLaw (SC) 486 : AIR 2024 SC 3579 : (2024) 8 SCC 293

    In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. (Para 32) Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, 2024 LiveLaw (SC) 486 : AIR 2024 SC 3579 : (2024) 8 SCC 293

    Judgement in the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 cannot be cited as a precedent to deny bail in UAPA cases where the accused has suffered long incarceration. (Para 28) Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, 2024 LiveLaw (SC) 486 : AIR 2024 SC 3579 : (2024) 8 SCC 293

    Section 43-D(5) - Object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. (Para 11 & 19) Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 LiveLaw (SC) 437 : (2024) 9 SCC 813

    Section 43D(5) – Bail order challenged – Rejection of bail on grounds that accusations against the respondents are prima facie true – The Court at the stage of considering the bail applications of the respondents-accused is merely required to record a finding on the basis of broad probabilities regarding the involvement of the respondents in the commission of the alleged offences. Held, there is sufficient material to believe that the accusations against the respondents-accused are prima facie true and that the mandate contained in the proviso to Section 43(D)(5) would be applicable for not releasing the respondents on bail. The Supreme Court should be slow in interfering with the order when the bail has been granted by the High Court, however if such order of granting bail is found to be illegal and perverse, it must be set aside. The High Court has committed gross error in not considering the material/evidence in its right and proper perspective that there are reasonable grounds for believing that the accusations against the respondents are prima facie true. Hence, the impugned order passed by the High Court cannot be sustained. The impugned order passed by the High Court is set aside. (Para 16, 17, 18, 22 & 24) Union of India v. Barakathullah, 2024 LiveLaw (SC) 404 : AIR 2024 SC 3462 : 2024 Cri LJ 3183

    Section 43B(1) and Prevention of Money Laundering Act (PMLA), 2002; Section 19(1) – Interpretation of the phrase 'inform him of the grounds for such arrest' – Held, the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B(1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA – It is a statutory mandate requiring the arresting officer to inform the grounds of arrest to the person arrested under Section 43B(1) of the UAPA at the earliest. Both the provisions find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India and the requirement to communicate the grounds of arrest is the same in both the statutes. Hence, applying the golden rules of interpretation, the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied. (Para 17, 18, 22 & 34) Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376 : AIR 2024 SC 2967 : 2024 Cri LJ 2450 : (2024) 8 SCC 254

    Section 43B (1) – The proceedings of arrest and the police custody remand of appellant is questioned – On grounds that mandator requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested is not provided – The arrest memo nowhere conveys the grounds on which the accused was being arrested. Keeping the accused in police custody without informing him the grounds on which he has been arrested; deprives the accused of the opportunity to avail services of the legal practitioner of his choice to oppose the prayer for police custody remand and seek bail. Held, the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand which vitiates the arrest and subsequent remand of the appellant. Further held, the mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused. The arrest of the appellant followed by remand order are hereby declared to be invalid in the eyes of law and are quashed and set aside. Hence, the appellant is entitled to a direction for release from custody. (Para 48, 50 & 51) Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376 : AIR 2024 SC 2967 : 2024 Cri LJ 2450 : (2024) 8 SCC 254

    Section 2(1) (d) & 43D (2) and Criminal Procedure Code, 1973; Section 167(2) – Power to extend remand beyond 90 days – Under section 43D power is given to 'the court' to extend and authorise detention of the accused beyond a period of 90 days. As per section 2(1) (d), 'The court' would mean jurisdiction of a normal criminal Court and also includes a Special Court constituted under Section 11 or Section 22 of the NIA Act. Hence, the Chief Judge cum City Sessions Court had the jurisdiction to pass the order of extension of detention beyond 90 days. Held, the jurisdictional Magistrate would be clothed with the jurisdiction to deal with the remand of the accused albeit for a period of 90 days only under Section 167(2) of CrPC, because for authorising remand beyond 90 days, an express order of the Sessions Court or the Special Court, as the case may be, would be required by virtue of Section 43D (2) of UAPA. Hence, order of extension of remand by Chief Metropolitan Magistrate beyond the period of 90 days, was illegal. (Para 33, 35, 36, 37) State of West Bengal v. Jayeeta Das, 2024 LiveLaw (SC) 312 : AIR 2024 SC 2161

    Section 22(1) & 22(3) NIA Act – Power of Chief Judge cum City Sessions Court for trial of offences set out in the Schedule to the NIA Act – The State Government has been given exclusive power under Section 22(1) to constitute one or more Special Courts for trial of offences under any or all the enactments specified in the Schedule to NIA Act. The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is designated by the State Government, be exercised by the Court of Session of the division in which such offence has been committed. Held, the State has not constituted a special court under Section 22, hence, the Chief Judge cum City Sessions Court had the power and jurisdiction to deal with the case by virtue of Section 22 (3). Hence, the order of Chief Judge cum City Sessions Court permitting the addition of the offences under UAPA to the case does not suffer from any illegality or infirmity. (Para 23, 24, 28, 29 & 30) State of West Bengal v. Jayeeta Das, 2024 LiveLaw (SC) 312 : AIR 2024 SC 2161

    Section 15 & 16 of the 1967 Act –Terrorist act – Section 15(1) refers to certain acts which would constitute a terrorist act. To qualify for being a terrorist act, an act must be done with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or such act must be accompanied with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. In sub-clauses (a), (b), and (c) of section 15(1), the law stipulates the manner of commission of the acts to come within the ambit of the expression “terrorist act” under the 1967 legislation. Held, prima facie commission or attempt to commit any terrorist act by the appellant not found. (Para 30) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280 : AIR 2024 SC 2169 : 2024 CriLJ 2001 : (2024) 6 SCC 591

    Section 17 – Funding terrorist act – Held, no corroboration of the allegation that the appellant has funded any terrorist act or has received any money for that purpose. No prima facie case made out. (Para 31) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280 : AIR 2024 SC 2169 : 2024 CriLJ 2001 : (2024) 6 SCC 591

    Section 18 – Conspiracy or attempt to commit, advocate, abet, advice, incite or facilitate commission or any terrorist act. Held, mere participation in some meetings and attempt to encourage women to join the struggle for new democratic revolution, prima facie, do not reveal the commission of an offence under Section 18 of the 1967 Act. (Para 32) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280 : AIR 2024 SC 2169 : 2024 CriLJ 2001 : (2024) 6 SCC 591

    Section 20 & 38 – Membership of terrorist organisation – Mere meeting of accused individuals or being connected with them through any medium cannot implicate one in Chapter VI offences under of the 1967 Act, in the absence of any further evidence of being associated with a terrorist organisation. The offence under Section 20 not made out. (Para 34 & 35) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280 : AIR 2024 SC 2169 : 2024 CriLJ 2001 : (2024) 6 SCC 591

    Section 43D (5) – Bail – Long period of incarceration was held to be a valid ground to enlarge an accused on bail in spite of the bail restricting provision of Section 43D (5) of the 1967 Act. Taking cognizance of the composite effect of delay in framing charge, period of detention undergone by the accused, the nature of allegations against her vis-à-vis the materials available before this Court at this stage in addition to her age and medical condition, she ought not to be denied the privilege of being enlarged on bail pending further process. (Para 36 & 41) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280 : AIR 2024 SC 2169 : 2024 CriLJ 2001 : (2024) 6 SCC 591

    Section 43D(5) and Code of Criminal Procedure, 1973; Section 439 – Section 43D(5) of the UAP Act modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAP Act. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the 'final report' or 'Case Diary', the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied, that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). The restrictions, on granting of bail in section 43D(5) are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. The conventional idea in bail jurisprudence 'bail is the rule, jail is the exception' does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5) - 'shall not be released', in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released', suggests the intention of the Legislature to make bail, the exception and jail, the rule. (Para 17, 18 & 20) Gurwinder Singh v. State of Punjab, 2024 LiveLaw (SC) 100 : AIR 2024 SC 952 : (2024) 5 SCC 403

    Section 43-D(5) - The petitioner challenged the High Court's rejection of bail and argued that the prosecution's reliance on inadmissible statements of co-accused and the absence of direct involvement in terrorist activities did not justify further detention. They also contended that the petitioner's association with an organization not listed as a banned terrorist group under the UAPA did not establish a connection to the alleged crime. However, the Court, referencing NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 emphasized that under Section 43-D(5) of the UAPA, bail cannot be granted unless the Court finds the accusations prima facie untrue. Considering the petitioner's criminal antecedents and the charge-sheet, the Court held that the petitioner failed to meet the threshold for bail under the UAPA, leading to the dismissal of the petition. Mazhar Khan Vs. National Investigation Agency, (2024) 6 SCC 627

    Section 43D(2)(b) - Code of Criminal Procedure, 1973; Section 167(2) - Default Bail - Terrorism cases should not to be taken lightly. (Para 13) State of NCT of Delhi v. Raj Kumar @ Lovepreet @ Lovely, 2024 LiveLaw (SC) 10 : AIR 2024 SC 244 : (2024) 2 SCC 632.

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