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UAPA Annual Digest 2021 : Important Judgments Of Supreme Court & High Courts

Aaratrika Bhaumik
8 Jan 2022 6:03 AM GMT
UAPA Annual Digest 2021 : Important Judgments Of Supreme Court & High Courts
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As we step into 2022, LiveLaw brings to you a yearly Round-up of important cases pertaining to the controversial Unlawful Activities (Prevention) Act, 1967 from the Supreme Court, High Courts and trial courts across the country. This yearly digest includes 90 judgments and orders. Supreme Court1. Violation Of Fundamental Right To Speedy Trial Is A Ground For Constitutional Court...

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As we step into 2022, LiveLaw brings to you a yearly Round-up of important cases pertaining to the controversial Unlawful Activities (Prevention) Act, 1967 from the Supreme Court, High Courts and trial courts across the country. This yearly digest includes 90 judgments and orders. 

Supreme Court

1. Violation Of Fundamental Right To Speedy Trial Is A Ground For Constitutional Court To Grant Bail In UAPA Cases: Supreme Court [Union of India v. K.A. Najeeb]

The Supreme Court has held that Section 43­D (5) of UAPA per­ se does not oust the ability of Constitutional Courts to grant bail on ground of violation of Fundamental Right to Speedy Trial. The bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose also observed that the rigours of the provision will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. The court noted that, in this case, the High Court invoked its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43­D (5) of UAPA, the court observed. Referring to various judgment, the court observed: "The presence of statutory restrictions like Section 43­D (5) of UAPA per ­se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial". The court also noted that the accused has been in jail for more than five years, and that there are 276 witnesses left to be examined. and the charges have been framed only on 27.11.2020. It further noted: "Still further, two opportunities were given to the appellant ­NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co­-accused who have been convicted, none have been given a sentence of more than eight years' rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two­third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice."

2. Bail- Restrictions In Section 43­D(5) of UAPA Act Are Comparatively Less Stringent Than Section 37 NDPS Act [Union of India v. K.A. Najeeb]

In a significant judgment pronounced on Monday, the Supreme Court observed that Section 43­D(5) of the Unlawful Activities (Prevention) Act, is comparatively less stringent than Section 37 of the Narcotic Drugs and Psychotropic Substances Act. "Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre­condition under the UAPA. Instead, Section 43­D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc", the Bench observed. The Court also observed that the constitutionality of harsh conditions for bail in such special enactments has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.


3. Supreme Court Dismisses NIA's Plea Challenging Default Bail To Sudha Bharadwaj In Bhima Koregaon Case
[NIA vs Sudha Bhardwaj]

The Supreme Court dismissed the petition filed by the National Investigation Agency challenging the default bail granted to lawyer-activist Sudha Bharadwaj by the Bombay High Court on December 1, after over three years of her arrest in the Bhima Koregaon case. A Bench comprising Justice UU Lalit, Justice Ravindra Bhat and Justice Bela Trivedi observed that there was no reason to interfere with the Bombay High Court's order and dismissed the NIA's Special Leave Petition. Sudha Bhardwaj was granted default bail by Bombay High Court on 1st December based on a finding that the Additional Sessions Court, Pune, which extended the time for investigation in the case beyond 90 days, was not competent to do as it was not notified as a Special Court under Section 22 of the NIA Act. The High Court had directed her to be produced before the Trial Court on December 8 to complete the bail formalities. Additional Solicitor General of India Aman Lekhi, appearing for the NIA, opened the arguments by raising two main points - 1) Section 43D(2) of UAPA only modifies proviso to Section 167(2) CrPC; (2) The definition of "court" under Section 2 of UAPA starts with "unless the context otherwise requires", which has been missed by the High Court. The bench pointed out that there is no Special Court under the UAPA Act. The bench said that if the ASG's argument is accepted, it would mean that the State Governments can create Special Courts under Section 22 NIA Act only if they transfer the investigation to the Central Agency under Section 7. That will be denuding the powers of the State Government, the bench pointed out. The bench then proceeded to dismiss the petition. "Heard ASG Aman Lekhi. We see no reason to interfere. Dismissed" - this was the short order dictated by the bench.

 

4. UAPA- Period Of Deprivation Of Personal Liberty Pending Trial Cannot Be Unduly Long: Supreme Court Grants Bail To Accused [Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya vs National Investigation Agency]

The Supreme Court observed that period of deprivation of personal liberty pending trial/appeal cannot be unduly long. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail, the bench comprising Justices Ajay Rastogi and Abhay S. Oka observed. The court was considering a case of an under trial accused under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of the Unlawful Activities(Prevention) Act, 1967. It noted that the accused, who is presently 74 year old is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner. "This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice", the Bench observed. 


5. UAPA - If Chargesheet Does Not Reveal Prima Facie Case, Embargo For Bail Under Sec 43D(5) Won't Apply [Thwaha Fasal vs. Union of India]

The Supreme Court has held that the embargo for grant of bail under Section 43D(5) of the Unlawful Activities Prevention Act will not be attracted if the chargesheet does not reveal a prima facie case.' "The stringent conditions for grant of bail in sub-section (5) of Section 43D will apply only to the offences punishable only under Chapters IV and VI of the 1967 Act...The embargo will apply when after perusing charge sheet, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, if after perusing the charge sheet, if the Court is unable to draw such a prima facie conclusion, the embargo created by the proviso will not apply", the Bench comprising Justices Ajay Rastogi and Abhay Sreeniwas Oka observed. The judgment further noted that the Court is not expected to do a "mini trial" to ascertain prima facie case. At this stage, the Court has to take the material in the chargesheet "as it is". "However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is", it was further held. 

6. Mere Support To Terrorist Organization Without Intention To Further Its Activities Does Not Attract Section 38/39 UAPA [Thwaha Fasal v. Union of India]

In its judgment restoring the bail granted to Thwaha Fasal and Allan Shuhaib, the Supreme Court observed that mere support given to a terrorist organization or mere association with it, is not sufficient to attract offences under Sections 38 and 39 of the Unlawful Activities (Prevention) Act, 1967. The association and the support have to be with intention of furthering the activities of a terrorist organisation, the bench comprising Justices Ajay Rastogi and Abhay S. Oka observed. Such intention, according to the court, can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet. Further, the court reiterated that the restrictions imposed by sub-section (5) of Section 43D per se do not prevent a Constitutional Court from granting bail on the ground of violation of Part III of the Constitution. "Thus, the offence under sub-section (1) of Section 38 of associating or professing to be associated with the terrorist organisation and the offence relating to supporting a terrorist organisation under Section 39 will not be attracted unless the acts specified in both the Sections are done with intention to further the activities of a terrorist organisation. To that extent, the requirement of mens rea is involved. Thus, mere association with a terrorist organisation as a member or otherwise will not be sufficient to attract the offence under Section 38 unless the association is with intention to further its activities. Even if an accused allegedly supports a terrorist organisation by committing acts referred in clauses (a) to (c) of subsection (1) of Section 39, he cannot be held guilty of the offence punishable under Section 39 if it is not established that the acts of support are done with intention to further the activities of a terrorist organisation. Thus, intention to further activities of a terrorist organisation is an essential ingredient of the offences punishable under Sections 38 and 39 of the 1967 Act", the Court held. 

Also Read: UAPA Case : Supreme Court Grants Bail To Thwaha Fasal, Dismisses NIA's Appeal Against Allan Shuhaib's Bail

Also Read: "Young Children Are Idealists, Inspired By Certain Ideology. But There is No Allegation That They Have Intention To Further The Activities": Sr.Ad. Basant Argues In Allan Thwaha UAPA Case

Also Read: UAPA Case Against Allan-Thwaha : Can Intention To Further Terrorist Activities Be Inferred From Books, Banners & Slogans? Supreme Court Asks NIA

Also Read: Intention To Further Activities Of Terrorist Organization Mandatory For Offences Under Section 38/39 UAPA : Thwafa Fasal's Lawyer Argues For Bail In Supreme Court

Also Read: 'Mere Possession Of Maoist Literature Not An Offence' : Thwaha Fasal Moves Supreme Court Against Kerala HC's Order Cancelling Bail In UAPA Case

7. Supreme Court Refuses Bail To A Lawyer In UAPA Case For Alleged Link With ISIS, Describes The Allegations As "Serious" [Uber Ahmed v. State of Gujarat]

Describing the allegations as "serious", the Supreme Court refused to grant bail to a lawyer arrested under the UAPA in 2017 in Gujarat for allegedly discussing, advocating, disseminating ISIS ideology on social media, recruiting persons, and generating funds for the organization. However, the Court directed that the trial court hold hearings twice a week and complete the trial in precisely 1 year. The bench of Chief Justice N. V. Ramana and Justices Surya Kant and Hima Kohli was hearing an SLP against a February 2020 order of the Gujarat High Court dismissing his bail petition in connection with an FIR for offenses under Sections 13, 17, 18, 38, and 39 of the UAPA and under Sections 120(B), 121(A) and 125 of the IPC.

Senior Advocate Siddharth Dave, for the petitioner, told the bench, "I am an advocate practicing in Surat. I have been charged with the UAPA on an allegation that I was recruiting persons for ISIS for money. And this only on the basis of some posts on Facebook and messages on WhatsApp! I have never been to Syria! Not even a rupee has been found from me!" To this, the Bench responded, "We are not on the question of UAPA. It is not that bail cannot be granted to you because you are booked under the UAPA. But the nature of allegations against you is very serious. There is evidence against you that you have acted as an ISIS agent, some of your chats on WhatsApp seem to be about killing persons of other religions. We have to presume that there is no reason to discard this evidence at this stage", Bench responded. The bench asked SG Tushar Mehta, for the Gujarat state ATS, about the reasons for the delay in trial. Mr. Mehta responded that the delay was attributable to the act of the accused persons in challenging every single order passed by the trial court. The SG also cited allegations of the SLP petitioner's alleged link with ISIS. The bench then proceeded to pass its order- "Having heard learned Senior counsel appearing for the petitioner, learned Solicitor General appearing for the State of Gujarat and carefully perusing the material available on record, we are not inclined to grant bail to the petitioner". 

8. UAPA- State Police Has Duty To Continue Investigation Of Schedule Offence Till NIA Actually Takes It Over [Naser Bin Abu Bakr Yafai v. State of Maharashtra]

The Supreme Court observed that the State police has a duty to continue with the investigation of a schedule offence till the National Investigating Agency actually takes it over. "Between the issuance of a direction and the actual taking up of the investigation by the NIA, there should be no hiatus in the investigation to the detriment of the interests of national security involved in the enactment of the legislation'", the bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna observed. The court added that mere renumbering of the case filed by the NIA did not take away the power of the State police (ATS) to continue the investigation. One of the contentions raised before the Apex Court was that once the Central government directed the NIA Mumbai to take over the investigation under Section 6(4), the consequence under Section 6(6) was that ATS Nanded could not continue with the investigation (and file a charge-sheet) thereafter. "Sub-Section (4) of Section 6 contemplates a direction by the Central government to the NIA to investigate an offence, where it is of the opinion that the offence is a scheduled offence and that it is fit to be investigated by the NIA. Sub-Section (5) also confers a suo motu power on the Central government to direct the NIA to investigate a scheduled offence. Under sub-Section (6), upon the issuance of a direction under sub-Sections (4) or (5) of Section 6, the State government and the officer in-charge of the police station investigating the offence "shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the [NIA]". However, this stipulation has to be read in the context of sub-Section (7), under which the investigation by the officer in-charge of the police station has to continue till the NIA takes up the investigation of the case. Sub-Section (7) is a provision for the "removal of doubts". Such a provision clarifies the intent of the lawmaker so as to place it beyond the realm of ambiguity. Hence, on a conjoint reading of sub-Sections (4), (5), (6) and (7) of Section 6, what emerges is that the ATS Nanded had a duty to continue with the investigation till the NIA Mumbai actually PART D 23 took over the investigation from it", the Bench ruled. 

Also Read: 'Can The State Police Continue Once NIA Investigation Ordered By Central Govt? Are All UAPA Offences To Be Tried Exclusively By NIA Courts?' Supreme Court Reserves Judgment

9. Magistrates Cannot Extend Time To Complete Investigation In UAPA Cases: Supreme Court [Sadique vs. State of Madhya Pradesh]

The Supreme Court held that magistrates would not be competent to extend the time to complete investigations in UAPA cases. The only competent authority to consider such request would be "the Court" as specified in the proviso in Section 43-D (2)(b) of the UAPA, the bench of Justices Uday Umesh Lalit, S. Ravindra Bhat and Belam M Trivedi held. In this case, Chief Judicial Magistrate, Bhopal had granted extension sought in an application moved by the Investigating Machinery under Section 43-D(2)(b) of the UAPA. Also, the accused's application seeking bail on the ground that no charge-sheet was filed by the Investigating Agency within 90 days was dismissed. The High Court upheld these orders observing that since the CJM, Bhopal had passed an appropriate order, the period available for the Investigating Machinery to complete the investigation stood extended to 180 days and as such the applications preferred by the appellants under Section 167(2) of the Code were not maintainable." After considering various provisions of the relevant statues, it was concluded that "so far as all offences under the UAPA are concerned, the Magistrate's jurisdiction to extend time under the first proviso in Section 43-D (2)(b) is nonexistent". Consequently, in so far as "Extension of time to complete investigation" is concerned, the Magistrate would not be competent to consider the request and the only competent authority to consider such request would be "the Court" as specified in the proviso in Section 43-D (2)(b) of the UAPA", the Bench observed. 

10. Supreme Court Dismisses NIA's Appeal Against Bail Granted To Man Facing UAPA Trial For Joining ISIS [NIA v. Areeb Eiaz Majeed]

The Supreme Court refused to entertain an appeal filed by the National Investigation Agency against the Bombay High Court's order upholding bail granted to a Mumbai youth Areeb Majeed, who is facing trial under UAPA following his return from Syria after joining Islamic State. A division bench comprising Justices S Abdul Nazeer and AS Bopanna observed that the High Court has detailed the reasons for its decision and has imposed stringent condition. Following his return, Majeed is facing trial in a case registered by the NIA under the anti-terror law UAPA and Section 125 IPC(waging war against Asiatic power in alliance with India). He was granted bail by the Special Court on March 17, 2020 . In February this year, the Bombay High Court dismissed the appeal filed by the NIA against the trial court's order granting bail. "He is a terrorist and went to Syria and came to India to bomb police headquarters." ASG Raju said. He further submitted that one of reasons cited by the High Court for upholding the bail was that the accused argued his own case. But the bench pointed out that stringent conditions have already been imposed. "Read the conditions for bail! He has to stay with family at Kalyan, give sureties, give his residential address, report to incharge etc", the bench said.

12. Default Bail : State Cannot Take Advantage Of Filing One Charge Sheet First And Seeking Time To File Supplementary Charge-sheets To Extend The Time Limit U/S 167(2) [Fakhrey Alam v. State of Uttar Pradesh]

The Supreme Court observed that the time period for investigation specified under Section 167 of the Code of Criminal Procedure cannot be extended by seeking to file supplementary charge sheet qua UAPA offences. The bench comprising Justices Sanjay Kishan Kaul and R. Subhash Reddy, while granting default bail to Fakhrey Alam, a person accused under Section 18 of the UAPA Act, reiterated that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right. The court noted that in this case, even within the 180 days period, the charge sheet/supplementary charge sheet under the UAPA Act was not filed and it was after a lapse of 211 days that this charge sheet had been filed. "We do not think that the State can take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e., the period of 180 days. That period having expired and the charge sheet not having been filed qua those offences (albeit a supplementary charge sheet), we are of the view the appellant would be entitled to default bail in the aforesaid facts and circumstances.", the Court said. The Court added that since the consequences of the UAPA Act are drastic in punishment and in that context, default bail is held not to be a mere statutory right but part of the procedure established by law under Article 21 of the Constitution of India.

13."High Court Has Committed Wrong" Supreme Court Takes Objection To HC's Order Granting Parole To A UAPA Convict When SLP Was Pending Before SC

Supreme Court took objection to grant of parole to a UAPA Convict by the High Court of Rajasthan when the SLP was still pending before the Apex Court. A Division Bench of Justices Indira Banerjee and Justice MR Shah made the observation while hearing an application filed by UAPA Convict, Arun Kumar Jain who is presently lodged in Central Jail, Jodhpur, seeking grant of bail for three months on ground of his father's health. The present application had been filed in a special leave petition pending before the Supreme Court against the Rajasthan High Court's final impugned judgment dated 30th October 2018. "When this SLP is pending before this Court, How has the High Court released you on parole? We take strong objection to this. You should have come here." Justice Shah said. While refusing to entertain the bail plea, the Bench also hauled up the Applicant for approaching the High Court for parole when a Special Leave Petition was pending before the Supreme Court. "You couldn't have gone to the High Court for parole when your SLP was pending here, and this Court had released you on interim bail earlier" Justice Shah said. "Earlier we released him for some time thereafter he surrendered. Knowing full well that we would not have extended the time, He approached the High Court and got the parole? The High Court has committed wrong" Justice Shah said. It may be noted that the present applicant was granted interim bail last year by the Supreme Court on grounds of his father's illness who is 85 years old and permanently blind. The applicant was convicted and sentenced by Sessions Court, Jaipur in 2017 under Section(s) 13, 18, 18-B and 20 of the Unlawful Activities (Prevention) Act, 1967 and was sentenced to simple life imprisonment. His conviction was later set aside by the High Court and his sentence was substituted from life imprisonment to 14 years rigorous imprisonment with fine.


14. Payment Of Extortion Money Does Not Amount To Terror Funding: Supreme Court Grants Bail To UAPA Accused [Sudesh Kedia vs. Union of India]

Payment of extortion money does not amount to terror funding, the Supreme Court observed while granting bail to an accused arrested under Unlawful Activities (Prevention) Act [UAPA]. In this case, the bail application of Sudesh Kedia was dismissed by the High Court on a finding that he had been paying extortion money, and thus contributed to funding of the terrorist organization. The Court observed that, while considering the grant of bail under Section 43 (5) D, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. "Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary chargesheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.", the bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat observed. The court added that it is not satisfied that a case of conspiracy has been made out at this stage only on the ground that the accused met the members of the organization and that the amount seized from the accused is proceeds from terrorist activity. Observing thus, the bench set aside the judgment of the High Court and directed to release the accused on bail subject to the satisfaction of the Special Court.


15. "Not At This Stage": Supreme Court Rejects Bail Application Of Akhil Gogoi In UAPA Case Relating To Anti-CAA Protests [Akhil Gogoi v. NIA]

The Supreme Court dismissed plea by peasants' rights activist Akhil Gogoi, challenging the Gauhati High Court order rejecting his bail plea. A three Judge Bench of Justice NV Ramana, Justice Surya Kant and Justice Aniruddha Bose denied bail at this stage in light of the allegations against Gogoi. During the hearing, Senior Advocate Jaideep Gupta appearing for Gogoi submitted that large scale agitation had taken place in protest for CAA. Its not related to terrorism at all. There were some instances where there was violence at some places but there is no evidence that petitioner was responsible. It does not amount to an act of terrorism on a prima facie basis. "Cannot consider bail in light of the allegations as of now. Maybe later, you can file an application. " Justice Ramana stated. "Let the trial proceed. Courts have started functioning now. " Justice Surya Kant observed The Gauhati High Court had rejected the bail plea of peasants' rights activist Akhil Gogoi, in connection with a case registered against him under Sections 120B, 124A, 153B IPC and Sections 18 (Punishment for conspiracy, etc.) and 39 (Offence relating to support given to a terrorist organisation.) of the UA(P) Act.


Pending cases

1. 'Very Unlikely, But You Can Try' : Supreme Court To Delhi Police On Plea To Set Aside Bail Granted To Activists In Riots Case 

The Supreme Court orally told the Delhi police that it is "very unlikely" to be convinced to set aside the bail granted by the Delhi High Court to three student-activists, Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, in the Delhi Riots conspiracy case. At the same time, the bench comprising Justices Sanjay Kishan Kaul and Hemant Gupta orally said that it may have a different opinion on whether lengthy debates about statutory provisions should be there in a bail order. Justice Kaul asked Solicitor General Tushar Mehta if the Delhi Police was aggrieved with the bail granted to the activists or to the interpretation given to the Unlawful Activities Prevention Act by the Delhi High Court. "We are on both the issues. We will try to convince you on both the points", the Solicitor General replied. "Very unlikely, but you can try", Justice Kaul responded. Justice Kaul also said that he was "troubled" by the lengthy bail orders with debates about the statutory provisions. "This has troubled us many times. Bail matters are heard at length in trial court, High Court and here. You can't do it here. We only propose to hear this matter for only couple of hours", he said. "One thing can be said that provisions of the Act are not to be debated in this manner", Justice Kaul added. "If we are going to debate for hours a bail matter…Bail proceedings are not in the nature of final adjudicatory proceedings. Prima facie call has to be taken if bail has to be granted or not", Justice Kaul remarked further. 

Also Read: 'HC Judgment Waters Down UAPA, Dilutes It, Reads It Down & Says That Otherwise It Would Not Pass Muster Of Parliament': SG Tushar Mehta Tells SC -Courtroom Exchange

Also Read: Delhi Police Moves Supreme Court Against High Court Orders Granting Bail To Devangana Kalita, Natasha Narwal And Asif Iqbal Tanha

2. Is Gold Smuggling By Itself A 'Terrorist Act' Under UAPA? Supreme Court To Examine [NIA v. Muhammed Shafi and Ors]

The Supreme Court issued limited notice on the question of law and tagged the petition filed by National Investigation Agency (NIA) challenging order of the Kerala High Court wherein bail was granted to the 12 accused in the Kerala Gold Smuggling case. A Bench of Chief Justice of India NV Ramana, and Justices AS Bopanna and Hrishikesh Roy, presided over the matter and stated that they would not entertain the aspect of cancellation of bail. Even though the Apex Court refrained from entertaining the prayer seeking cancellation of bail, they did agree to examine whether the offence was covered under Customs Act or whether it would fall within the definition of "terrorist act" under Section 15(1)(a)(iiia) of the Unlawful Activities (Prevention) Act. "The accused are employees of the government. We will not enter into the aspect of bail cancellation. We can, however, leave the legal question open", stated the CJI. ASG KM Nataraj, appearing for the NIA, submitted that an appeal was already pending consideration before the Supreme Court, and that the Kerala High Court had erred in not only granting bail, but had further interpreted the definition of "terrorist act" which required examination. Accordingly, the Court has issued notice to the accused and have agreed to examine the legal aspect in the matter at hand.

 

3.. Is Gold Smuggling With Mere Profit Motive A 'Terrorist Act' Under UAPA? Supreme Court To Examine [Mohd Aslam v. Union of India]

The Supreme Court decided to examine if gold smuggling falls within the scope of "terrorist activity" under the Unlawful Activities Prevention Act 1967. The Court will examine gold smuggling will be included in definition of the a terrorist economic activity under Section 15(1)(iiia) of UAPA Act 1967. A division Bench of Justice RF Nariman and BR Gavai issued notice in a plea filed by one Mohd Aslam against Rajasthan High Court's refusal to quash the FIR and stay the proceedings against him. A FIR was registered against the petitioner under UAPA Act after smuggled gold was seized from him. According to the petitioner, an act done with intention to cause damage to economic security of India alone would attract the offence defined under Section 15 of the UAPA Act and gold smuggling per se even in large quantity should be deal with under Customs Act and not UAPA Act. Further, the legislative intent behind introduction of clause relating to economic security in Section 15 was not to deal with smuggling of gold, the plea stated further. 


 4. 'Act Used To Quell Dissent' : Former Civil Servants Challenge Validity Of UAPA; Supreme Court Issues Notice [Amitabha Pande & Ors v Union of India]

The Supreme Court issued notice on a Writ Petition filed by petitioners- who have all been former IAS/IPS/IFS officials- challenging the vires and validity of the various provisions of the draconian anti-terror law Unlawful Activities Prevention Act, 1967. A Bench comprising the Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice Surya Kant issued notice to the Union Government on the petition and directed that it be tagged along with a similar petition. The Petition submits that the abysmally low rates of successful prosecution and the fact that citizens find themselves being incarcerated for long period and some even having died while incarceration point to the fact that "the proviso to Section 43D(5) is arbitrarily used to quell dissent than to achieve the actual objectives of the Act." The petition submits that while the UAPA is not a preventive detention law, the stringency of its provisions, especially with regard to bail, makes it almost akin to a preventive detention law without the protections of Article 22 being available. The Petition submits that the inherent arbitrariness of the Proviso to Section 43D (5) and the absolute power contained therein, effectively ensure that the provisions of the UAPA are being used as a preventive detention law whereas the UAPA is not a preventive detention law. The petition seeks that the said Proviso be struck down, or at the very least, read down whereby "the arbitrary exercise of power by the Government is reined in and the fundamental rights enshrined in the Constitution upheld."

5. Supreme Court Restrains Tripura Police From Coercive Steps Against 2 Lawyers & 1 Journalist Booked Under UAPA [Mukesh & Ors vs State of Tripura]

The Supreme Court ordered that no coercive steps including arrest should be taken against two lawyers and one journalist, who were booked under the draconian anti-terror law Unlawful Activities Prevention Act (UAPA) by the Tripura police over their social media posts and reports about the recent communal violence which took place in the state. A Bench comprising the Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice Surya Kant passed the order while issuing notice in the writ petition filed by two lawyers Mr Mukesh and Mr Ansarul Haq Ansar and journalist Shyam Meera Singh seeking to quash the UAPA FIR. Advocate Prashant Bhushan, appearing for the petitioners, submitted that the two lawyers had visited Tripura and published a fact-finding report about the communal violence, which led to the Tripura police issuing notices under Section 41A of the Code of Criminal Procedure against them asking their appearance for interrogation in relation to the FIR under UAPA. At this point, the CJI observed that he read some news reports that the journalists were granted bail in the Tripura FIRs. Mr.Bhushan clarified that they were two other journalists, and the petitioners are yet to be arrested. The bench then ordered notice on the petition and directed that no coercive steps be taken against the petitioners.

Also Read: 'Vague Definition Of Unlawful Activities': Plea In Supreme Court Challenges Constitutionality Of UAPA Provisions

Also Read: Tripura Violence : Supreme Court Agrees To Give Urgent Listing To Petition Challenging UAPA Against Lawyers, Journalists


High Courts 

1. UAPA Accused In Custody For Over 2 Yrs On Allegations Of Posting About 'Sikhs for Justice Referendum' On FB: P&H High Court Grants Bail [Deep Kaur @ Kulvir Kaur v. State of Punjab]

The Punjab and Haryana High Court granted bail to a UAPA Accused who has been booked for allegedly posting about 'Sikhs for Justice 2020 Referendum' on her Facebook account and who has been in custody for over two years and three months. The Bench of Justice Anupinder Singh Grewal referred to Apex Court's ruling in the case of Union of India versus K.A. Najeeb to observe that long custody would be an essential factor while granting bail under the UAPA. "Article 21 of the Constitution of India provides right to speedy trial and long period of incarceration would be a good ground to grant bail to an under-trial for an offence punishable under the UAPA. It has also been held that the embargo under Section 43-D of the UAPA would not negate the powers of the Court to give effect to Article 21 of the Constitution of India," the Court observed. "The petitioner is a lady with three minor children, one of whom is about one year and nine months old and is lodged with her in jail. The petitioner is in custody for over two years and three months. Challan has been filed but there is no likelihood of the trial being concluded soon," the Court observed as it allowed the bail plea, and the petitioner was ordered to be released on regular bail on her furnishing requisite bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.

2. 'Nothing To Show His Active Involvement': Kerala High Court Grants Bail To UAPA Accused Under Judicial Custody Since 2015 [Ibrahim @ Babu v. Union of India]

The Kerala High Court reversed an order of a Single Judge denying bail to a 67-year-old suspected Maoist undertrial charged under Section 43D(5) of the Unlawful Activities Prevention Act (UAPA). He was arrested in 2015 and was lodged in judicial custody since then. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran while granting bail to the appellant, observed: "...that the accused shared the same ideology of another accused, that he was living with the other accused, that he was aware of the planning (of the attack) — prima facie there is nothing to show his active involvement." Ibrahim was arrested in 2015 for being a part of an assailant group propounding Maoist ideology and attacking the house of a civil police officer in Wayanad in 2014. The Division Bench noted that apart from the fact that he was aware of the plan and that he resided with the other accused, nothing was brought to record to show the appellant's active involvement in the matter. Another circumstance that the Bench considered was the medical condition of the appellant, which was stated to be very critical. The appellant had suffered one Cardiac Arrest during his confinement apart from suffering from multiple ailments.

3. Whether Request For Extension Of Pre-Charge Detention Under UAPA Should Meet The 'Threshold Of Impossibility'? Delhi HC To Examine [Zeeshan Qamar v. The State of NCT of Delhi]

The Delhi High Court issued notice on a petition involving a question of law as to whether the request for extension of period of investigation and pre-charge detention under proviso to Section 43D (2)(b) of Unlawful Activities (Prevention) Act should meet the threshold of "impossibility". The proviso sates: "if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days." A Bench of Justice Siddharth Mridul and Justice Anup J Bhambhani sought response of the State in the petition moved by one Zeeshan Qamar, challenging the Trial Court's order which had granted an extension under Section 43D (2) (b) of the UAPA in his case. "When it comes to stringent provisions, we have to ensure that Article 21 is not ignored. But prima facie, this is in accordance with law. Laying down the impossibility test would result in another trial...whether it was actually impossible to complete the investigation in 90 days," the Bench orally remarked.

4. Bombay High Court Extends Varavara Rao's Time To Surrender Till Jan 7, Permits Him To Respond To Private Hospital's Medical Reports 

The Bombay High Court extended Telugu poet Varavara Rao's time to surrender before prison authorities till January 7, while posting his application for extension of medical bail for further consideration on January 4. A division bench of Justices Nitin Jamdar and Sarang Kotwal also permitted Rao's counsels to file an affidavit and respond to a private hospital's reports concluding that his condition was normal as "he is able to perform activities of daily living." The Court allowed submission of the affidavit after Senior Advocate Anand Grover pointed out Rao was granted medical bail despite the same private hospital filing a similar positive report back then. Granting Rao medical bail for six months on February 22, 2021, the High Court had held that placing the octogenarian back in custody would be incompatible with his health condition and endanger his life. The High Court granted Rao a six-month medical bail on February 22, 2021. Seeking an extension he cited his delicate health and the high cost of living in Mumbai while on bail. The NIA has accused Rao and 14 other activists of furthering the banned CPI(Maoist)'s agenda and conspiring to overthrow the government. They are booked under the stringent Unlawful Activities (Prevention) Act (UAPA) based on letters/emails primarily retrieved from their electronic devices.

Also Read: Varavara Rao Medically Stable, Must Surrender: NIA Tells Bombay High Court; Complete Medical Report Summoned

Also Read: [Bhima Koregaon- Elgar Parishad case] Private Hospital Seeks Two More Weeks To Examine Varavara Rao

Also Read: Bombay High Court Extends Varavara Rao's Time to Surrender Till Dec 2, Orders Medical Examination

Also Read: Varavara Rao Approaches Bombay High Court For Extension Of Medical Bail & Permission To Reside At Home

5Writ Jurisdiction Can Be Exercised To Grant Bail On Health Grounds Even When Bail Has Been Rejected On Merits Under UAPA : Bombay High Court [Dr. P.V Varavara Rao v. NIA]

An undertrial accused of serious offences under the Unlawful Activities Prevention Act (UAPA) can be granted bail purely on grounds of sickness and advanced age, if it is found that his continued incarceration is endangering his life, the Bombay High Court has held in its order granting temporary bail to Bhima Koregaon- Elgaar Parishad accused - Dr PV Varavara Rao. A division bench of Justices SS Shinde and Manish Pitale said it was exercising its powers to direct Rao's release, as an undertrial's health cannot be ignored simply because he is accused of serious offences and his bail application is rejected on merits. "Thus, it becomes clear that the writ jurisdiction of this court under Article 226 of the Constitution cannot be said to have been ousted merely because the application for grant of bail has been rejected under Section 43D(5) of the UAPA, on a finding that the accusations against the undertrial are found to be prima facie true", the Court observed. The Court, therefore, held that it could not be a "mute spectator" as Dr PV Varavara Rao's health deteriorates again in government facilities. "The condition of old age, sickness, infirmity and multiple health ailments suffered by the undertrial indicate that his continued custody would be incompatible with his health conditions and that sending him back to Taloja Central Prison would amount to endangering his life, thereby violating his fundamental right under Article 21 of the Constitution of India," the order read.

Also Read: When It Comes To Fundamental Rights Of Prisoners It Is Not An Adversarial Litigation, It Is The Duty Of State: Bombay High Court

6. Delhi High Court Seeks Response Over Steps Taken To Streamline Expeditious Disposal Of Trials In UAPA Cases Before Special Designated Courts [Manzer Imam v. UOI] 

The Delhi High Court has directed it's Registry to file a further affidavit indicating the steps taken in order to streamline expeditious disposal of trials in Unlawful Activities (Prevention) Act cases pending before Special Designated Courts in the national capital. Justice Mukta Gupta directed Advocate Gaurav Agarwal, representing the Delhi High Court in the matter, to file the said affidavit while posting the matter for further hearing on February 14, 2022. The Court was hearing a plea filed by an accused Manzer Imam who was in custody from last 8 years in connection with a NIA case. It was alleged that some members of Indian Mujahideen were conspiring to commit terrorist acts by allegedly targeting landmark places in India. The Court had vide order dated September 15 sought response from the Registry in the matter. During the course of hearing today, Agarwal apprised the Court that an affidavit has been filed by the High Court. However, the Court expressed it's dissatisfaction on the affidavit and remarked thus: "This is not a proper affidavit. What their claim was that UAPA are both investigated by NIA and Special Cell. Since you have designated special court for NIA, you have lesser work whereas the UAPA cases investigated by special cell they are piling up. You need to designate more of NIA court."

Also Read: Long Pendency Of NIA Cases In Special Courts: Delhi High Court Seeks Reasons For Delay In Trials By Dec 17

7. Bombay High Court Grants Default Bail To Sudha Bharadwaj In Bhima Koregaon Case; Refuses Bail To 8 Other Accused [Sudha Bharadwaj v. NIA and other connected matters]

The Bombay High Court granted default bail to lawyer-activist Sudha Bharadwaj in the 2018 Bhima Koregaon – Elgar Parishad caste violence case. However, the Court rejected the bail applications of the 8 other accused Sudhir Dawale, Dr P Varavara Rao, Rona Wilson, Advocate Surendra Gadling, Professor Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira. They were arrested between June – August 2018. The Court has directed Sudha Bharadwaj to be produced before the Special NIA Court on December 8 to decide the conditions of bail. Full copy of the order is awaited. A division bench of Justices SS Shinde and NJ Jamadar had reserved Bharadwaj's bail plea for judgement on August 4 and the criminal application by eight others on September 1. Additional Solicitor General Anil Singh for NIA sought a stay on the operation and implementation of the order in view of two recent Supreme Court judgements. However, the court refused relief saying it has already considered the orders in its judgement.

The High Court accepted the petitioners' argument that the Additional Sessions Court, Pune, which took cognizance of the chargesheet filed by the NIA and also extended the period of detention of accused beyond 90 days as per Section 43D(2) of the UAPA, was not competent to do so. Because, the Pune Sessions Court was not notified as a Special Court under the NIA Act. Also, there was another Special NIA Court in existence in Pune at the relevant time. "The extension of period of investigation and detention of the applicants by order dated 26th November 2018 by invoking the frst proviso under section 43-D(2) of UAPA, by the learned Additional Sessions Judge was not by a Court of competent jurisdiction", the High Court observed. However, the High Court added that this irregularity will not result in vitiation of the cognizance taken on the chargesheet.

Also Read: Bhima Koregaon Elgar Parishad Case: Will Provide Clone Copies Once Received From FSL, But Trial Shouldn't Be Stayed - NIA

8. Bhima Koregaon Case - Time For UAPA Probe Was Extended By A Court Which Lacked Competent Jurisdiction: Bombay High Court [Sudha Bharadwaj v. NIA and other connected matters]

In its detailed order granting default bail to Sudha Bharadwaj the Bombay High Court said that Additional Sessions Judge of Pune KD Vadane was not authorized to extend the time for Pune Police to file the charge sheet under the provisions of the UAPA Act on November 26, 2018 and therefore she was entitled for default bail. The Additional Sessions Court, Pune was not notified as a Special Court under the NIA Act and hence it had no competence to pass the order extending time for investigation. "In the case at hand, with the declaration that the learned Additional Sessions Judge (Shri K.D. Vadane) had no jurisdictional competence to extend the period of detention under section 43-D(2)(b) of UAPA, the very substratum of the prosecution case that the right to default bail did not ripe into an indefeasible right, as the period of detention was extended, gets dismantled", the Court observed. "Once, the twin conditions of default in filing the charge-sheet, within the prescribed period, and the action on the part of the accused to avail the right are satisfied, the statutory right under section 167(2) of the Code catapults into a fundamental right as the further detention falls foul of the personal liberty guaranteed under Article 21 of the Constitution," the Court further stated. 

9. UP Govt Assures Best Possible Medical Treatment To Atiq Ur Rehman; Tenders 'Unconditional Apology' In Allahabad High Court [Atiq Ur Rehman And 2 Others v. the State of U.P. and Another]

Informing the Allahabad High Court that Atiq-ur-Rehman, a UAPA Accused has been admitted to the All India Institute of Medical Sciences (AIIMS) for his medical treatment, the Uttar Pradesh Government has tendered an unconditional and unqualified apology in the High Court. Essentially, in compliance with the High Court's November 23rd Order, the Jailor, District Jail, Mathura today filed an affidavit informing the Court that Rehman has been admitted to AIIMS on November 24th and he is presently under the supervision of Doctors of AIIMS, Delhi. "That the deponent is tendering his unconditional and unqualified apology for the inconvenience if any caused to the Hon'ble Court with further assurance that the deponent shall ensure best medical facility and treatment as directed by the doctors of the AIIMS New Delhi," the affidavit further reads. Rehman was held by UP Police on his way to Hathras along with a Kerala journalist (Siddique Kappan) and 2 others while they were going to meet the family members of a gang rape and murder victim. Significantly, a bench of Justice Mahesh Chandra Tripathi and Justice Subhash Vidyarthi had given 2 days' time to the Uttar Pradesh Government to come up with a response on a plea moved by Rehman's father in law seeking his admission to AIIMS and enlargement on bail in the alternative, on account of an extreme medical emergency.

Also Read: Following Allahabad High Court's Nudge, UP Govt. Takes UAPA Accused Atiq Ur Rehman To AIIMS For Medical Treatment

Also Read: "He May Die At Any Moment, Might Meet Same Fate As Stan Swamy": UAPA Accused Atiq Ur Rehman's Relative Moves Allahabad HC Seeking Bail

10. Gold Smuggling Not "Terrorist Activity" Under UAPA Though It Threatens Economic Security Of Nation : Kerala High Court [Swapna Prabha Suresh v. Union of India]

The Kerala High Court ruled that, while gold smuggling could threaten the economic security of a country, the same is not covered by the provisions of the Unlawful Activities (Prevention) Act. A Division Bench of Justice K Vinod Chandran and Justice C Jayachandran made the observation while granting bail to prime accused Swapna Suresh and seven others in the gold smuggling case that had shaken the State in 2020. The judgment set off on a lighter vein as follows: "The appellants lament; as the lyrics in a folk song in the vernacular intones, 'we are petty smugglers unduly labelled as terrorists', resulting in their continued incarceration pending investigation and trial, infringing their right to life guaranteed under Article 21 of the Constitution." "True; acts of destabilization of the economy, as distinguished from a physically violent subversive act could also be deemed to be a subversive act against the nation. If the intention was to widen the definition of terrorism, to bring in acts, destabilizing the economy; surely the Parliament had the power. But, the Parliament by inserting economic security in Sec. 15(1) and simultaneous insertion of sub-clause (iiia) of clause (a) by the very same amending act, restricted the definition of terrorist activity, in so far as destabilizing the economy, to counterfeiting of high-quality currency or coins," the Court said. Therefore, it held that gold smuggling simpliciter does not come under the ambit of UAPA. "We are of the opinion that counterfeiting; that too of high-quality currency notes or coins and any material so to do is the only species included under section 15(1)(a)(iiia)", the Court further observed. "The Judges (in Muhammed Shafi P) relied on the principles of 'ejusdem generis" and 'noscitur a sociis', to hold that the arrangement of words in the provision would not include gold smuggling with a mere motive for illegal profiteering; which cannot, by any means, be defined to be a 'terrorist act'. Nor was it the intention of the legislature when 'economic security' was incorporated," the Court observed further. 

Also Read: Gold Smuggling: Kerala High Court Grants Bail To Prime Accused Swapna Suresh And Others

11. Invoking S.15 UAPA For Acts 'Likely To Strike Terror' Even In Absence Of Intention Justifiable: Karnataka High Court In Police Station Riot Case [Mr. Shaikh Muhammed Bilal v. National Investigation Agency]

The Karnataka High Court has said that if an act is likely to strike terror, then the absence of an intent to strike terror will not make the invocation of Section 15 of the Unlawful Activities (Prevention) Act unjustifiable. A division bench of Justice Aravind Kumar and Justice Pradeep Singh Yerur said, "It would emerge from sub-section (1) of Section 15 that even if the act is "likely to strike terror", the absence of "ïntent to strike terror" will not by itself make the invocation of Section 15 unjustified." It added, "As such the accused cannot limit his arguments to say that he or she lacked the necessary intent to strike terror. In other words, the accused will have to go one step further and demonstrate that his actions, even if lacking any intent, does not carry any likelihood of striking terror in the minds of the people." The court made this observation while dismissing an appeal filed by a bunch of accused seeking bail in the Bengaluru Riots case of 2020. "A plain reading of Section 18 of UAP Act would clearly indicate that it would take within its sweep or fold persons who abet, incite, knowingly facilitates the commission of terrorist act. Thus, while evaluating the specific roles and overt acts of the appellants, necessarily, Section 18 of UAP Act will have to be kept in mind along with Section 15 of the UAP Act.", the Court observed.  Further it said, "The investigation material on hand reveals that petrol bottles were used while attacking police personnel and the police station and such material being highly inflammable substance would prima-facie attract the provisions of Section 15 of UAP Act. The overt acts noted above would clearly indicate the actions of the accused persons in forming a violent mob in front of the police station, attacking the police station and police personnel using lethal weapons such as clubs, rods, usage of petrol bottles and indulging in arson indicates that entire action was done with an intention to strike terror at the public at large."

12. Doubtful That FB Post Saying 'Taliban Aren't Terrorist' Alone Would Constitute Cognizable Offence: Gauhati HC Grants Bail To UAPA Accused [Maulana Fazlul Karim Qasimi v. State of Assam]

The Gauhati High Court granted bail to an accused, Maulana Fazlul Karim Qasimi who has been booked under UAPA for allegedly expressing a view on Facebook that the "Taliban" in Afghanistan are not terrorists. The Bench of Justice Suman Shyam observed that it was doubtful as to whether the contents of the Facebook Post alone would constitute a cognizable offence. Qasimi was booked under Sections 120(B) [Punishment of criminal conspiracy], 153 A(1)(a) and (c), 298 (Uttering, words, etc., with deliberate intent to wound the religious feelings of any person), 505 (1)(b)(c) [Statements conducing to public mischief], 505 (2) [Statements creating or promoting enmity, hatred or ill-will between classes] of the Indian Penal Code, 1860, and Section 39 of the Unlawful Activities (Prevention) Amendment Act, 1967 [Offence relating to support given to a terrorist organization]. Having persued the case diary, the Bench granted him bail on furnishing a bond of Rs.20,000/- as it observed thus: "From a perusal of the Case Diary I find that there is nothing incriminating against the applicant save and except the fact that there is a Facebook post emanating from his personal account. Even if it is accepted that the applicant is the author of the Facebook post, even then, in the absence of other incriminating materials, it is doubtful as to whether, the contents thereof alone would constitute a cognizable offence. In view of the above, I am of the view that further custodial detention of the applicant would be uncalled for in this case."

13. "Further Custodial Detention Not Required": Gauhati HC Grants Bail To UAPA Accused Booked For Glorifying Tehreek-e-Taliban [Mabool Alam v. State of Assam]

The Gauhati High Court last week granted bail to one Maqbool Alam booked for praising and glorifying Tehreek-e-Taliban, i.e. a terrorist organization. Allegedly, Alam had posted a Facebook post in which he had shown his support towards Tehreek-e-Taliban, a terrorist organization that engaged in a war to throw out a democratically elected government in Afghanistan and also targeted Indian citizens through violent means. The Bench of Justice Hitesh Kumar Sarma granted bail to him noting that it does not appear to this Court that there was anything such in the posts which would require his further custodial detention beyond 31 days, in the interest of investigation of the case. That being so, his application for bail was disposed of at the motion stage itself with the direction that he be released on bail in connection with the instant case on furnishing bail bond of Rs.10,000/- with one suitable surety of the like amount, to the satisfaction of learned Chief Judicial Magistrate, Kamrup (Metro) at Guwahati. He has been directed not to leave the territorial jurisdiction of Chief Judicial Magistrate, Kamrup (Metro) at Guwahati, without prior written permission from him and shall not hamper with the investigation, or tamper with the evidence of the case. Also, he has been directed to not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

14. Anand Teltumbde Moves Bombay High Court Challenging Stringent Bail Conditions & 'Vague Terminology' In UAPA [Dr. Anand Teltumbde v. NIA]

In a significant challenge, Professor Anand Teltumbde, an accused in the Bhima Koregaon- Elgar Parishad Caste Violence Case, filed a writ petition in Bombay High Court to quash the terminology "and all its formations and front organizations" attached to the banned CPI (Maoist) in the first schedule of the Unlawful Activities Prevention Act (UAPA). He claims that the "vagueness" of the terminology is used as a tool to circumvent due process wherein the State does not notify a particular organization as banned under the UAP Act but investigating agencies keep using the 'front organization' card with impunity and no oversight, especially to oppose bail. The other prayers in the petition include quashing section 43D(5) of the UAPA as it creates an insurmountable hurdle for any accused to be granted bail and violates Articles 14 and 21. The plea further seeks to quash sanction to prosecute under UAPA and the order rejecting his bail application. In the alternative, Teltumbde seeks house arrest in Goa during the pendency of the trial. Teltumbde was arrested on April 14, last year. He and 15 other activists are booked under the UAPA and accused of furthering the banned CPI(Maoist) agenda to overthrow the government. According to the plea, the National Investigation Agency (NIA) has conveniently labelled organizations to which a particular accused is associated as "frontal organization" without showing any nexus between that organization and the scheduled terrorist organization, which is violative of Article 14, 19(1)(a) & (c) and 21 of the constitution. "The declaration of an organization as a 'front organization' is manifestly arbitrary as the organizations and its members are liable to be prosecuted as per the provisions of the (UAP) Act but the said organizations would not be able to avail the remedy of de-notification that is afforded by section 36 of the UAP Act," his petition under Article 226 of the Constitution states.

15. Once UAPA Is Invoked, Special Court Alone Can Extend Custody Beyond 90 Days: Karnataka HC Directs Release Of Terror Accused On Default Bail [Mohammed Shariq v. State of Karnataka]

The Karnataka High Court recently held that once the police invoke Unlawful Activities (Prevention) Act, the Magistrate court has no power to extend custody beyond 90 days and only the Special Court constituted under the UAPA Act has the power to extend the detention beyond 90 days. Justice K.Natarajan in his order dated July 23, noted: "Once the Police invoke the UA(P) Act against the accused, automatically the file has to be transferred to the Special Court established under the NIA Act. Therefore, I am of the view that the learned JMFC has no power to extend the detention or custody for more than 90 days or 180 days, as per Section 43D(2) of UA(P) Act." The Court further said: "In view of the offence under the UA(P) Act invoked by the Police, the Magistrate shall have to refer or commit the matter to the Special Court but cannot extend the time limit more than 90 days in one case." With this view, the single judge bench granted bail to petitioner Mohammed Shariq and Sadath Hussain who were arrested by the Mangalore East Police Station, and charged under section under Section 153A, 34 of IPC, Sections 3 and 5 of the Karnataka Open Place (Prevention of Disfigurement) Act and Sections 13 and 39 of the UA(P) Act. It was alleged that the accused had written graffiti on the wall of Ventura Apartment, Mangaluru, in November 2020, in support of a banned terrorist outfit. They were also accused in a case registered in regards to the writing made on the wall of the Out-Post Police Station situated in the premises of District Court, Mangaluru. "On bare reading of the proviso to Section 43D(5) of the UAPA, it clearly defines that the accused shall not be entitled to be released on bail only if there are reasonable grounds for believing that the accusation against such a person is prima facie true. It shows this is a reverse burden on the accused to show that the accusation is false. Once the investigation is pending and by looking to the writings in both the places, it is nothing but warning and also danger to the integrity of the nation and also insulting the feelings and patriotism of the citizens of this nation. Therefore, on merits, the petitioners are not entitled for bail", the Court further observed. 

16. Prisoner Doesn't Cease To Be A Human Being, Can't Be Deprived Of Right To Life : Bombay HC Allows Palliative Care Plea Of Alleged Naxal [Nirmala Kumari Uppuganti vs State of Maharashtra]

A prisoner doesn't cease to be a human being to be deprived of his right to life guaranteed under Article 21 of the Constitution, the Bombay High Court has observed. The bench of Justices SS Shinde and NJ Jamadar observed thus while directing blast accused and alleged Naxal - Nirmala Uppuganti–to be shifted to a hospice from her cell at Byculla Women's Prison. The court directed prison officials to transfer her to the Shanti Avedna Hospice by September 15 and directed them to take her to Tata Memorial Hospital as and when required. "A prisoner, be he a convict or undertrial or a detenue, does not cease to be a human being, and even when lodged in jail, he is not deprived of his right to life guaranteed to him under Article 21 of the Constitution, which includes the right to obtain medical treatment. A prisoner cannot be deprived of health services as it would violate the guarantee conferred under Article 21 of the Constitution of India," the Court observed. The court held that Uppuganti, who suffers from metastases(cancer) to liver, bones, lungs and probably leptomeninges, "has a legitimate right to expect palliative care and nursing., which includes the right to obtain medical treatment." NIA arrested Uppuganti and her husband in 2019, over a month after an improvised explosive device (IED) blast killed 15 personnel of the Quick Response Team and a private vehicle's driver in Gadchiroli, police arrested two senior operatives of the banned Communist Party of India (Maoist): Uppunganti (58) and her husband Satyanarayana (70).

Also Read: Bombay High Court Directs Shifting Of Terminally Ill Undertrial Prisoner In Naxal Blast Case To Hospice For Palliative Care

17. "Young Police Officer Lynched To Death By Mob Putting Humanity, Spirit Of Kashmiriyat To Shame": Jammu & Kashmir HC Denies Bail To Accused [Peerzada Mohammad Waseem v. Union Territory of J&K]

The Jammu & Kashmir and Ladakh High Court has denied bail to a man accused of lynching a Deputy S.P. of 3rd Battalion Security after observing that his act has put humanity and spirit of Kashmiriyat to shame. Calling it a heinous and serious offence, Chief Justice Pankaj Mithal and Justice Sanjay Dhar observed: "It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course." The case against the Appellant-accused was that in 2017, while the deceased officer was posted on duty to supervise the control at Jamia Masjid on the occasion of Shabe Qadar, a group including the Appellant and other persons had raised inflammatory slogans against the Government of India. The said mob was also alleged to have beaten up, dragged and lynched to death the deceased officer. An FIR was therefore registered under Sections 302, 148, 149, 392, 341 of RPC read with Section 13 of the Unlawful Activities (Prevention) Act. "At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case cannot be undertaken. What is the effect of statements of hostile witnesses would be a moot point to be decided during the course of trial of the main case and cannot be decided during bail proceedings," the Court observed. It added, "The mere fact that material witnesses have turned hostile, in our opinion, by itself is not sufficient to grant bail because of the simple reason that this Court cannot imagine what would happen till the disposal of the case."

18. Bhima Koregaon Case : Bombay High Court Directs Taloja Prison To Ensure Proper Medical Treatment For Prof Hany Babu

The Bombay High Court ordered Delhi University Associate Professor Hany Babu to be re-lodged in Taloja Prison following the report of a private hospital that he is 'fit for discharge'. He is accused in the caste-violence Bhima Koregaon – Elgar Parishad Case. Babu was admitted to Breach Candy hospital following HC's orders on May 19, after testing positive for Covid-19 and to treat his eye infection. Justices SS Shinde and NJ Jamadar disposed of Babu's wife – Jenny Rowena's plea- seeking interim medical bail for him after Breach Candy's doctors certified that Babu's had recovered from Covid-19 and orbital cellulitis, and he is fit for discharge. "In view of the nature of the ailment the prisoner had been suffering from, we direct the Superintendent, Taloja Central Prison to take the prisoner to JJ Hospital, as and when required. In case of necessity of consultation with the consultants, who treated the prisoner at Breach Candy Hospital, the Superintendent, Taloja Central Prison is at liberty to consult those consultants," the bench said in its order.

Also Read: "Nothing Wrong If This Becomes A Precedent In Present Times": Bombay High Court Directs DU Prof Hany Babu To Be Shifted To Breach Candy Hospital By Tomorrow

19. Prolonged Incarceration: Bombay High Court Grants Bail To Man Accused Of Being ISIS Recruit [Iqbal Ahmed Kabir Ahmed v. State of Maharashtra]

The Bombay High Court granted bail to a young man from Parbhani District of Maharashtra, accused of taking an oath of allegiance to the banned terror organisation Islamic State and booked under the Unlawful Activities (Prevention) Act. A division bench of Justices SS Shinde and NJ Jamadar granted bail to Iqbal Ahmed Kabir Ahmed on merits and on the ground of prolonged incarceration, holding that it infringes his right to life and personal liberty. The Court said, "… in our considered opinion, the further incarceration of the appellant, in the face of extremely unlikely situation of the trial being completed in near future, would be in the negation of the protection of life and personal liberty under Article 21. The denial of bail, in such circumstances would render the procedure not only unreasonable but unconscionable as well." The court, however, imposed strict bail conditions. He has been asked to report to the National Investigation Agency office twice a week for one month, once a week for the next two months and then once every Tuesday till the conclusion of the trial. "In such prosecutions, if the trials are not concluded expeditiously, the procedure which deprives the personal liberty for an inordinate period is then put to the test of fairness and reasonableness, envisaged by Article 21 of the Constitution. Where the period of incarceration awaiting adjudication of guilt become unduly long, the right to life and the protection of fair and reasonable procedure, envisaged by Article 21, are jeopardised", the Court further observed. 

20. Bhima Koregaon Accused Surendra Gadling Granted Temporary Bail in 2016 UAPA Case For Performing Mother's Funeral Rites

Bhima Koregaon accused - Advocate Surendra Gadling - has been granted temporary bail in a 2016 case under the Unlawful Activities (Prevention) Act, paving the way for his release from Taloja Prison tomorrow to perform his mother's funeral rites. Gadling's counsel's approached the Gadchiroli Sessions court seeking temporary bail soon after the Nagpur Bench of the Bombay High Court disposed of his regular bail application yesterday on the grounds that it was not maintainable. Principal District and Sessions Judge Gadchiroli UB Shukla imposed similar conditions on Gadling as the Bombay High Court at its principal seat. The 2016 case pertains to the burning of around 80 vehicles at the Surjagrah mining site in the Maoist belt of Gadchiroli. Gadling was granted temporary bail on July 30 in the Bhima Koregaon – Elgar Parishad case "purely on humanitarian grounds" from August 13 to 21 to perform his mother's funeral rites on her first death anniversary. A division bench headed by Justice SS Shinde and NJ Jamadar had observed that the rigours of regular bail under the Unlawful Activities (Prevention) Act would not apply for the grant of temporary bail on humanitarian grounds. "In the prevailing social construct, the first death anniversary of an immediate family member has an element of religious, personal and emotional significance. Admittedly, the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism, we do not find the prayer of the appellant unjustifiable," the bench had observed.

Also Read: UAPA - Watali Judgment Won't Apply When Bail Is Sought On Humanitarian Grounds : Bombay High Court

Also Read: Bombay High Court Grants Bail To Surendra Gadling For Nine Days To Attend Mother's Death Anniversary

Also Read: Bhima Koregaon Accused Challenges NIA Court's Refusal To Allow Him To Join Family For Mother's Last Rites

21. UAPA - Extension Of Detention Under Section 43D(2) Not Vitiated For Not Serving Prosecutor's Report On Accused : Bombay High Court [Sanjay Gangaram Avathare v. The State of Maharashtra]

The Bombay High Court has held that when seeking extension of detention under Section 43(D) of the UAPA, the fulfilment of the mandatory requirements is required in substance and not strictly in form. Justice Manish Pitale noted that substance would take precedence over form while deciding whether the mandatory requirements under the said provisions have been satisfied. The applicant-accused was assailing two orders of the Sessions Judge- first, extending detention beyond ninety days under Section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967; and second, rejecting the default bail of the applicant under Section 167(2) of the Cr.P.C. "Insofar as the contention raised on behalf of the applicant that the order stood vitiated because report of the public prosecutor was not furnished to the accused, suffice it to say that such a requirement cannot be read into proviso to section 43-D(2)(b) of the UAPA, for the reason that investigation was still under progress. The mandatory requirement of the said proviso is that there should be a report of the public prosecutor indicating the progress of investigation and the specific reasons for further detention of the accused and satisfaction of the Court with such a report", the Court observed. "It is crucial that the stage when the public prosecutor moves such an application, the investigation is still under progress, and it is for the Court to be satisfied with the report submitted by the public prosecutor. Thus, the requirement of service of a copy of the report to the accused cannot be read into the said proviso to Section 43-D(2)(b) of the UAPA", it was further held. 

22. "IO's Request Can't Substitute Public Prosecutor's Report To Extend Detention Period Under UAPA Beyond 90 Days": J&K&L High Court [Showkat Ahmad Sofi v. State of J&K]

In a significant ruling, the Jammu & Kashmir and Ladakh High Court recently held that the request of an Investigating officer for extension of time (of detention beyond 90 days) can't be a substitute for the report of the public prosecutor under the provisions of Section 43D (2)(b) of UAP Act. The Bench of Justice Dhiraj Singh Thakur and Justice Vinod Chatterji Koul stressed the importance of scrutiny of detention under UAPA by a Public Prosecutor so as not to leave a detenu in the hands of I.O. Noting that the Trial Court had misdirected itself while passing the impugned order, the Court stressed that the status of the prosecutor is not a part of the investigating agency as it is an independent statutory authority. Therefore, the impugned Order dated 25th May 2019, passed by the court of Special Judge designated under NIA Act, Srinagar, was set-aside and the appellants were held entitled to bail subject to their furnishing personal bond in the amount of Rs.1,00,000/- each with two sureties each of the like amount to the satisfaction of the Presiding Officer.

23. Delhi High Court Issues Notice On Tahir Hussain's Plea Challenging UAPA Charges Invoked Against Him In Delhi Riots Larger Conspiracy Case [Tahir Hussain v. State of NCT]

The Delhi High Court on Friday issued notice on a petition filed by former Aam Aadmi Party Councillor Tahir Hussain challenging the UAPA charges invoked against him in connection with the Delhi Riots larger conspiracy case and also seeking for quashing of sanction granted in this regard. A single judge bench comprising of Justice Mukta Gupta issued notice after hearing Senior Advocate Mohit Mathur appearing for Hussain. FIR 59/2020 contains stringent charges including sec. 13, 16, 17, 18 of the UAPA, sec. 25 and 27 of the Arms Act and sec. 3 and 4 of the Prevention of Damage to Public Property Act,1984 and other offences under Indian Penal Code, 1860. The writ petition therefore challenges the imposition of sec. 13, 16, 17, 18 of the UAPA in the chargesheet filed against Hussain under FIR 59/2020. The plea seeks setting aside of the aforesaid sections and also the grant of sanction for prosecution. The Court issued notice and sought response of the Centre and the Delhi Government in the matter.

Also Read: "Tahir Hussain's Plea Challenging UAPA Charges In Riots Case Is Nothing But An Attempt To Short Circuit And Stall The Trial": Delhi Police To High Court

24. Treating Ordinary Country Bomb Cases As Terrorist Offences Will Defeat Purpose Of NIA Act : Madras High Court [Jaffar Sathiq @ Babu v. State]

The Madras High Court has expressed concern about the difficulties which will be caused by sending all cases involving scheduled offences under the National Investigation Agency Act to the 'Special Courts' notified under the NIA Act. Since Explosive Substances Act is also a schedueld offence under the NIA Act, every case involving the offences under the Explosive Substances Act will have to go to special courts under the NIA Act. In this context, the High Court noted that the Explosive Substances Act is routinely invoked in gangster crimes in Tamil Nadu as "ordinary rowdy gangs have now graduated from using knives to country bombs which they find easier to carry and hurl than traditional weapons". A full bench comprising Justices P N Prakashh, V Sivagnam, RN Manjula was considering a referred question whether the rejection of bail by a Sessions Court under the Unlawful Activities Prevention Act (UAPA) must be challenged by way of an appeal under the NIA Act, even if the case was being investigated by the state police and not the NIA. Following the Supreme Court verdict in the case Bikramjit Singh v. State of Punjab, the bench held that such orders can only be challenged by way of appeal under the NIA Act.  "In our considered opinion, the very purpose and object of the NIA Act would stand defeated if all and sundry run of the mill country bomb cases are treated as terrorist offences and sent to Special Courts/Sessions Courts for trial", the Court observed.

25. Undertrial Prisoners Don't Have Right To Dictate Choice Of Prison; Authority Not Obligated To Seek Trial Court's Permission: J&K HC [Bashir Ahmad Mir and another v. State and others]

The Jammu and Kashmir High Court on Thursday held that an Undertrial Prisoner does not have a right to dictate his choice of prison for lodgement during trial and as such, there is no question of providing him an opportunity of being heard in this regard. Justice Sanjeev Kumar also held that since the permission of the Court is not mandatory before shifting the undertrial from one prison to another, in such a situation, the Court does not perform any judicial or quasi-judicial function, which may necessitate hearing of the undertrial before granting permission. " ..it is held that the function performed by the Inspector General prisons in relation to shifting of undertrials from one prison to another in case of an emergency or on administrative reasons is administrative in nature and, therefore, there is no place for providing an opportunity of being heard to the undertrial, which does not have any right to choose a prison of his choice for lodgement during trial," the Court held. Furthermore, it said: " An undertrial is not placed at a superior pedestal than a person under preventive detention and cannot claim rights higher than those available to a person under preventive detention." The Court was dealing with a 2013 case involving two persons accused under UAPA, Arms Act and other offences, facing trial before Special NIA Judge. The petition was filed resisting their transfer to a jail outside the Kashmir valley.

26. UAPA- Beyond Merely Asserting That Accused Are Involved In Terrorist Activities, No Materials To Connect Him: P&H High Court Grants Bail [Gurpal Singh @ Bunty v. State of Punjab]

The Punjab & Haryana High Court granted bail to an accused booked under the Unlawful Activities (Prevention) Act while noting that though allegations against him are series, however, the same are not established in the charge sheet. Perusing the charge sheet filed by the State, the Bench of Justice Harinder Singh Sidhu opined: "Beyond merely asserting that the petitioner and the other accused are involved in terrorist activities, Ld. Counsel appearing for the State have not been able to point out any material collected during the investigation which would connect the petitioner with the accusations sought to be made and to indicate that the allegations against the petitioner regarding the offences under the Unlawful Activities (Prevention) Act, are prima facie true." It may be noted that the allegations against the accused are that they have close links with anti-national elements operating from Pakistan and Western countries and that they were instructed by their handlers to destabilize the security and stability of India. "The foreign contacts are recorded in the mobile handset recovered from Gagandeep Singh (petitioner). How the petitioner is connected therewith is not forthcoming. It is also not the case of the prosecution that any of those contacts is involved in promoting anti-national activities," noted the Court.

27. 'Mere Civil Disturbance Will Not Be UAPA Offence Unless Committed With Intention To Commit 'Terrorist Act': Gauhati High Court Upholds Bail For Akhil Gogoi [State v. Akhil Gogoi]

The Gauhati High Court has dismissed the State appeal filed against the order of a Special NIA Court that granted bail to activist Akhil Gogoi last year, in connection with a case of rioting. While doing so, a Division Bench comprising of Justices Suman Shyam and Mir Alfaz Ali made it clear that mere that to attract the offences punishable under the Unlawful Assemblies (Prevention) Act, 1967— the act complained of must be a "terrorist act" committed with the intention to threaten the integrity, sovereignty of India, etc. It further held that merely causing civil disturbances, without the element of intention to cause 'terrorist act' would not fall within the ambit of unlawful activity under section 2(1)(o) of the UAPA Act. The order stated, "...an unlawful activity under section 2(1)(o) of the Act of 1967 could even be spoken words including a provocative speeches but in order to constitute an offence under the Act of 1967 the same must be done with the intention to cause death of , or injuries to any person or persons, or to cause loss of or damage to or destruction of any property aimed at disturbing the unity, integrity, security and sovereignty of the country. The dominant intention of the wrong doer must be to commit a 'terrorist act' coming within the ambit of section 15(1) of the Act. In other words, unless the act complained of strictly comes within the letter and spirit of section 2(1)(o) read with section 15(1) of the Act, the provisions of the Act of 1967 would not be applicable. What ,therefore, follows is that unlawful act of any other nature, including acts arson and violence aimed at creating civil disturbance and law and order problems, which may be punishable under the ordinary law , would not come within the purview of section 15(1) of the Act of 1976 unless it is committed with the requisite intention." 

28. Gauhati High Court Admits NIA's Appeal Against Discharge Of Assam MLA Akhil Gogoi In Chandmari Case [The State, National Investigating Agency v. Akhil Gogoi and 3 others]

The Gauhati High Court admitted National Investigating Agency's appeal against the order of the Special NIA Court discharging him of all the charges in the Chandmari case involving UAPA, sedition, and other offences under the Indian Penal Code. Admitting the appeal, the Bench of Justice N. Kotiswar Singh and Justice Soumitra Saikia directed that notice be issued to Akhil Gogoi, among others, within 3 weeks and has also called for the record from the Special Judge's Court, NIA, Assam, Guwahati. It may be noted that on July 1, Special NIA Judge Pranjal Das had discharged Raijor Dal Chief, Akhil Gogoi of all charges in the Chandmari case while observing thus: "..from his speeches available on record, Sri Akhil Gogoi (A-1) cannot be imputed with any incitement to violence. There are also no materials to link A-1 with vandalism and damage to property that took place during the said CAA protest due to such agitations led by various organizations."

29. UAPA - Sessions Court's Order Denying Bail Can Be Challenged Only By Appeal Under Section 21 NIA Act Before Division Bench : Madras High Court [Jaffar Sathiq @ Babu v. State]

Settling conflicting views, a Full Bench of the Madras High Court has held that an order passed by a Sessions Court denying bail to an accused under the Unlawful Activities(Prevention) Act 1967 (UAPA) can be challenged only by way of an appeal under Section 21 of the National Investigation Agency (NIA) Act. Such an appeal can be heard only by a division bench of the High Court. Applications under Section 439 or 397 of the Criminal Procedure Code are not maintainable against the rejection of bail by the Sessions Court in a UAPA case, the Court clarified. A 3-judge bench comprising Justices P N Prakashh, V Sivagnam, RN Manjula answered the reference made to it as follows : "An order passed by a Court of Session dismissing a bail application in a case involving offence(s) under the Unlawful Activities (Prevention) Act,1967, must be challenged only by way of an appeal under Section 21 of the National Investigation Agency Act, 2008. Consequently, such an appeal would lie only before a Division Bench vide Section 21(2) of the National Investigation Agency Act, 2008. The decision of the Division Bench of this Court in A. Raja Mohammed (supra)and that of a learned single Judge in Abdulla (supra) to the contrary, will stand overruled". The reference was made by a Single Bench of Justice AD Jagadish Chandira in January this year taking note of conflicting views in two judgments regarding the applicability of NIA Act to a UAPA case which is being investigated by the state police.

Also Read: Should Plea Against Sessions Court Order Denying Bail Under UAPA Be Placed Before Division Bench?: Madras HC Refers Question To Larger Bench

30. System Paralyzed Due To Pandemic; Accused Languishing In Jail : Bombay High Court 

Hearing a bail appeal of a Parbhani resident from Maharashtra, accused five years ago of links with the Islamic State (IS) under the Unlawful Activities (Prevention) Act, the Bombay High Court observed that under-trials are languishing in prisons in several cases, and more recently due to a system paralysed by the Covid pandemic. A division bench led by Justice SS Shinde observed that they had come across cases where under-trials have completed their possible sentence, and trials still hadn't started. The court cited the Bhima Koregaon – Elgar Parishad 2018 case and the Malegaon 2006 serial blasts case, where even the charges were yet to be framed. "For number of reasons, if the accused is in jail, then the perception is that trial does not start for long. In some cases, they (under-trials) have completed the 10-year sentence, but even then trial had not started…The system due to the pandemic is paralysed,the cumulative effect is that accused are languishing in jail. Despite best efforts, it is just not possible for the trial to get over. That is a reality. Elgar Parishad case, charges are yet to be framed, just as in the Malegaon trial," the bench observed

31. Undertrial Prisoners Charged With Riot Cases, UAPA, PMLA, Etc. Not Entitled To Interim Bail Under HPC Guidelines: Chhattisgarh High Court [Vijay Baid & Ors. v. Assistant Director, Directorate of Revenue Intelligence, Government of India, Raipur]

The Chhattisgarh High Court has observed that the undertrial prisoners who are facing trial for offences investigated by specialized agencies, cases involving riots, anti-national activities, UAPA etc., are not entitled for release under the High Powered Committee Guidelines. Relying on the relevant portions of the guidelines, Justice Narendra Kumar Vyas observed thus: "The under trial prisoners, who are facing trial under Prevention of Corruption Act/ Prevention of Money Laundering Act, 2002 and cases investigate by CBI/ED/NIA/ Special Cell, Crime Branch, SFIO, Terror related cases, Riot cases, under Anti-National Activities and Unlawful Activities (Prevention) Act etc., are not entitled to be released." The Court was hearing a petition challenging the lower court's order dated 22nd May 2021 rejecting the Petitioners' plea for interim bail as per the guidelines issued by the Supreme Court in Suo Motu Petition (C) No. 01/2020 in Contagion of Covid 19 Virus. The petitioners were accused of engaging in trading of gold and silver ornaments as per the intelligence inputs received by the authorities. It was later found that they had sent money through Hawala. "This prima facie establishes that the petitioners are habitual offenders. The diary statement of the witnesses also prima facie indicates that the petitioners are very much involved in smuggling of gold and silver, which is injurious to economic growth of the nation. The case diary further reflects that investigation is in a primary stage," the Court said.

32. Where Accused Is Booked Under Both UAPA & NDPS Act, Custody Under NDPS May Be Extended Beyond Expiry Of 180 Days Under UAPA: Jammu & Kashmir High Court [Arshad Ahmad Allie v. UT of J&K Anr]

The Jammu and Kashmir High Court has held that when a person is charged both under provisions of the Unlawful Activities Prevention Act (UAPA) and the Narcotics Drugs and Psychotropic Substances Act (NDPS), further custody beyond the period of 180 days (prescribed under UAPA) may be granted under Section 36A of the NDPS Act. "The accused including the petitioner, were not only facing investigation for offences under UA(P) Act but they were also being investigated for offences under NDPS Act, as a result of which, the Investigating Agency was entitled to seek custody of the accused beyond 180 days subject to fulfillment of conditions laid down in proviso to sub-section (4) of Section 36A of NDPS Act," Justice Sanjay Dhar noted. "Section 43-D of the UA(P) Act does not provide for extension of custody of an accused beyond 180 days. Since the investigating agency, in order to complete the investigation, required further custody of the petitioner, as such, it availed the option of seeking further custody of the accused in respect of the offences under NDPS Act, as Section 36A of the said Act makes a provision for extension of custody of an accused beyond 180 days up to one year. The Investigating Agency, accordingly, made an application before Principle Sessions Judge, Jammu", the Court further observed. 

33. Madras High Court Upholds Default Bail Of Accused Under UAPA, Admonishes State For Lackadaisical Approach [Union of India v. Vivekanandan @ Vivek]

The Madras High Court last week upheld the decision of a lower Court, granting default bail to a man accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) over an allegedly offensive Facebook post. A Bench comprising Justices PN Prakash and R Pongiappan also admonished the investigating agencies for their lackadaisical approach in handling the case. The Court opined "in this case, we find that there was absolutely no diligence at all" and accordingly refused to interfere with the impugned bail order. The Respondent was booked by the Madurai Police under UAPA and Section 505(1)(b) (public mischief) of IPC for allegedly uploading an offensive Facebook post. His remand was extended from time to time by a Judicial Magistrate and he was to become eligible for default bail under Section 167 CrPC on March 15, 2021. "The State should have ensured that Vivek was being produced before the Principal District and Sessions Court, Madurai, for remand. Unfortunately, they did not do that. However, the Public Prosecutor had approached the Principal District and Sessions Court, Madurai, with a manifestly defective report under Section 43(D)(2) of the UAP Act by combining two crime numbers. This shows how the State had acted in a cavalier manner for extinguishing the statutory right of a prisoner to be released on default bail under Section 167(2) CrPC.", the Court observed.

34. 'Insurmountable Condition For Bail' : Stan Swamy Challenges Constitutionality Of Section 43D(5) In Bombay High Court 

Octogenarian Stan Swamy, a tribal rights activist, from Ranchi and accused in the 2018 Bhima Koregaon – Elgaar Parishad case, has moved the Bombay High Court challenging the Section 43-D (5) of the Unlawful Activities Prevention Act, which imposes strict conditions for grant of bail, for being violative of Articles 14,19 and 21 of the Constitution. The plea filed through Advocate Mihir Joshi has also urged the Court to quash and set aside the terminology "all its formations and front organisations" in first schedule of UAPA for being violative of Constitutional provisions. The present plea has argued that presumption of innocence is the corner stone of the Indian Criminal justice system and a human right, and when such harsh conditions are imposed in respect of grant of bail even before the Trial is conducted the same inverts on its head, the presumption of innocence and imposition of harsh conditions especially pre conviction amounts to violation of presumption of innocence which is inbuilt into Article 21 of the Constitution. The Jesuit priest was arrested on October 8, 2020 and charged under various sections of the IPC and terror related offences of Unlawful Activities (Prevention) Act for allegedly furthering the cause of banned CPI (Maoist) through various civil rights organisations he is a part of. His application for bail was pending since November, 2020.

35. 'Accused Not Heard Before Extending Time To File Chargesheet' : Karnataka High Court Grants Default Bail To 115 UAPA Accused In Bengaluru Riots Case [Muzammil Pasha v. NIA]

The Karnataka High Court recently granted default bail under section Section 167(2) of the Criminal Procedure Code (CrPC) to 115 accused in the case regarding violence that took place within the limits of the DJ Halli and KG Halli police station, on August 11, 2020. A bench of Justice S Vishwajith Shetty, while setting aside the order of the special NIA court extending time to the agency for filing chargesheet, said : "The order dated 03.11.2020 passed on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act, 1967, seeking extension of time for completion of the investigation and also the order dated 05.01.2021 passed by the Special N.I.A. Court, Bangalore (CCH-50) on the application filed by the petitioners under Section 167(2) of the Code of Criminal Procedure, are hereby set aside." The court consequently allowed the prayer made by the petitioners in their application filed under Section 167(2) of the Code seeking default bail is allowed. The court directed the accused to be released on bail on execution of a personal bond for Rs Two lakhs with two sureties of like sum. The court observed : "The fundamental right of an individual recognized under Article 21 of the Constitution of India cannot be defeated other than in accordance with law. Since the order passed by the trial court on the application filed by the prosecution seeking extension of time for completion of the investigation is already held to be bad in law, the statutory right that has accrued to the petitioners/accused immediately after the completion of the first 90 days of period which right has been availed of by them by filing an application under Section 167(2) of the Code, seeking statutory bail and also offering surety cannot be denied to the petitioners/accused."

36. 'Right To Protest Not 'Terrorist Act' Under UAPA' : Delhi High Court Finds No Prima Facie Case Against Asif Iqbal Tanha, Natasha Narwal & Devangana Kalita [Asif Iqbal Tanha and Ors v. State of NCT of Delhi]

The Delhi High Court has found that offences under the Unlawful Activities Prevention Act (UAPA) are not made out prima facie against student leaders Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita in the Delhi riots conspiracy case. The Delhi Police had filed chargesheet against them alleging that the protests organized by them against the Citizenship Amendment Act from December 2019 were part of a "larger conspiracy" behind the North East Delhi communal riots which took place in the last week of February 2020. However, a High Court bench comprising Justices Siddharth Mridul and Anup Jairam Bhambhani, after a preliminary analysis of the chargesheet, observed that the allegations do not prima facie constitute the alleged UAPA offences relating to terrorist activities(Sections 15,17 and 18). Therefore, the division bench said that the rigour of Section 43D(5) of the UAPA against the grant of bail was not attracted against the accused, and hence they were entitled to grant of bail under the ordinary principles under the Code of Criminal Procedure. "Since we are of the view that no offence under sections 15, 17 or 18 UAPA is made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under section 43D(5) UAPA do not apply; and the court may therefore fall back upon the usual and ordinary considerations for bail under the Cr.P.C", the Court observed. "The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a 'terrorist act' or a 'conspiracy' or an 'act preparatory' to the commission of a terrorist act as understood under the UAPA", it was further held. 

Also Read: 'Terrorist Acts' Under UAPA Only Deal With Matters Impacting 'Defence Of India' And Not Ordinary Law & Order Problems : Delhi High Court 

Also Read: "In Its Anxiety To Suppress Dissent, In The Mind Of State, Line Between Right To Protest And Terrorist Activity Seems To Be Getting Blurred": Delhi HC In Natasha Narwal's Bail Order

Also Read: "Should This Court Wait Till Right To Speedy Trial Fully Negated?": Delhi High Court While Granting Bail To Delhi Riots Accused Asif Iqbal Tanha

37. Madras High Court Grants Bail To Accused Booked Under UAPA For Allegedly Raising Slogans Against Prime Minister Modi [Vilkrishnan v. State]

The Madras High Court granted Bail to two persons who allegedly abused the Hon'ble Prime Minister and police personnel and raised slogans against the Government. While granting them bail, the Bench of Justice M. Dhandapani observed, "Taking into consideration of the fact that the only allegation is that he has raised only slogan praising the deceased moist leader and said to have raised slogans against the Government." The first and second petitioners were arrested and remanded to judicial custody for the offence punishable under Sections 188, 120(b),121,121(A),124(A) and Section 10, 13, 15, 18of the Unlawful Activities (Prevention) Act, 1967, in Crime No.14 of 2020, seek bail. The case of the prosecution was that all the petitioners are supporters of a banned moist organisation. Allegedly, when the husband of A1, in this case, died (allegedly in the police encounter), in support of the deceased, all the petitioners raised slogan praising the deceased and also abused the Hon'ble Prime Minister and police personnel.On considering the fact that the occurrence took place in the year 2019, and on considering the period of incarceration suffered by the petitioners, the Court was inclined to grant bail to the petitioners. Accordingly, the petitioners were ordered to be released on bail on their executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand Only) with two sureties, of whom, one should be a blood-related surety, each for a like sum to the satisfaction of the Principal Sessions Judge, Salem.

38. UAPA- "In Absence Of Any Connection Between Alleged Act And Property Recovered, It Cannot Be Assumed That Property Was Acquired By Terrorist Act": Patna HC [Ramchandra Mandal v. State of Bihar]

The Patna High Court on Monday observed that in absence of any connection between the act alleged and the property recovered under the Unlawful Activities (Prevention) Act, it cannot be assumed that those properties were acquired by the terrorist act. The observation came by a single judge bench comprising of Justice Birendra Kumar while dealing with a petition filed by the family members of an accused person challenging the order of Designated Authority allowing ex post approval under sec. 25 of UAPA with regards to seizure of certain properties which were not connected with the acts so alleged against the accused. "Section 25 of the UAP Act requires that the Investigating Officer must have "reason to believe" that any property in relation to which an investigation is being conducted represents "proceeds of terrorism. The reason to believe must be on the basis of specific, reliable and relevant information." , the Court observed at the outset. In view of this, the Court observed that the police report submitted did not show any specific reliable or relevant information to form a believe that the property so seized were "proceeds of terrorism". "In absence of any connection between the act alleged and the property recovered, it cannot be assumed that those properties were acquired by the terrorist act.", the Court held.

39. Delhi Riots : High Court Vacates Stay On Trial Of 'Larger Conspiracy' Case Under UAPA

In view of the Delhi government's submission that the accused in the case are at liberty to collect a complete hard copy of the filed chargesheet from the trial court on Mar 25, the Delhi High Court today vacated its stay on the trial of the case. The Court had earlier stayed the trial in the case under the Unlawful Activities (Prevention) Act, upon the prosecution's appeal against a trial court order which had directed for hard copy of the charge sheet to be supplied to all the accused. In light of the state's withdrawal of its objection to the supply of charge sheet, the single judge bench of Justice Suresh Kait today said, "...no further order is required to be passed and the same is, accordingly, disposed of with pending application. Accordingly, interim order is vacated." The Delhi Police had earlier opposed supply of hard copies of the chargesheet on the ground that it ran into thousands of pages with twenty-three volumes. The case pertains to an alleged conspiracy that led to rioting in the north-east areas of the national capital in Feb last year - with the accused persons in the case including JNU students, Pinjra Tod activists, and AAP MLA Tahir Hussain. The accused persons are Umar Khalid, Sharjeel Imam, Abdul Khalid Saifi, Asif Iqbal Tanha, Ishrat Jahan, Safoora Zargar, Natasha Narwal, Devangana Kalita.

40Not Possible To Fix Outer Limit For Disposing UAPA Cases; But Judges Should Endeavor For Day To Day Trial : Karnataka High Court 

The Karnataka High Court has observed that it was not possible to lay down an outer time limit for the completion of trial of cases under the Unlawful Activities Prevention Act(UAPA). However, the Court added that judicial officers should endeavour for early disposal of cases, following day-to-day trial as per the mandate of Section 19 of the NIA Act and Section 309 of the Code of Criminal Procedure. The Court also directed the Registrar General of the court to take steps to transfer pending cases in Bengaluru Urban District registered under provisions of the Unlawful Activities (Prevention) Act, 1967, to the Special court of 49 City Civil and Session judge (CCH 50), for hearing and disposal. A division bench of Chief Justice Abhay Oka and Justice Suraj Govindaraj, while disposing off a petition filed by one Vaseemuddin A, said : "First respondent shall ensure that appropriate steps are taken in accordance with law for transferring the case involving offence under UAPA Act to the Court of 49 City civil and session judge (CCH 50) it is made clear while effecting transfer all procedural and legal compliance shall be made." Accordingly, it held, "Therefore, it is not possible for us to issue writ of mandamus laying down outer limit for completing of cases registered under the offences of UAPA Act 1967. However, concerned judicial officers are bound to make every endeavor to give utmost priority for disposal of cases under UAPA Act for reasons we have recorded earlier."

41. 56 UAPA Cases Pending In Bengaluru Urban District : Karnataka HC Directs Immediate Appointment Of Judge

The Karnataka High Court has suggested to its registry to take immediate steps to appoint a Judicial Officer to the designated court to whom all pending 56 cases in Bengaluru Urban District under the Unlawful Activities (Prevention) Act, 1967, can be transferred. A report was submitted by the Registrar General to the court in which it was stated that out of the four courts dealing with the cases under Unlawful Activities (Prevention) Act, 1967, two Courts are vacant and concurrent charge is being held by the other Judicial Officers. The Registrar General also stated that though the process of appointing regular Judicial Officers is under consideration, it will be appropriate if totally 56 cases pending in Bengaluru Urban District under the Unlawful Activities (Prevention) Act, 1967, can be transferred to the designated Special Court (CCH-50) which has pendency of only 23 cases. A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty on going through the report said "If the said suggestion is to be implemented, immediate steps will have to be taken to appoint a Judicial Officer for presiding over CCH-50. A copy of this order be forwarded to the Registrar General of this Court." The direction was given during the hearing of a petition filed by Vaseemuddin A., a city-based advocate. The petitioner had sought a direction for setting up another special court to conduct the trial of cases registered under the UAP Act, 1967, particularly to deal with the chargesheets filed by the National Investigation Agency (NIA) while complaining that accused in these cases, mainly charged for alleged terrorist activities, are languishing in prison owing to the delay in completion of trials.

42. Gold Smuggling With A Mere Illegal Profit Motive Not A 'Terrorist Act' Under UAPA : Kerala High Court [Muhammed Shafi v. NIA]

The Kerala High Court has held that mere act of gold smuggling, which is covered under the Customs Act, will not amount to a "terrorist act" under the Unlawful Activities Prevention Act unless the same is done with the intention to threaten the economic security of the nation. Gold smuggling with a mere illegal profit motive will fall within the aforementioned definition of terrorist act, the Court said. A division bench comprising Justices A Hariprasad and MR Anitha held so while dismissing the appeals filed by the National Investigation Agency(NIA) against an order of the Special NIA Court at Kochi granting bail to ten persons who were accused in the diplomatic channel gold smuggling case. "...we are unable to hold that smuggling of gold simplicitor will fall within Section 15(1)(a) (iiia) of UA(P) Act. In other words, gold smuggling clearly covered by the provisions of the Customs Act will not fall within the definition of terrorist act in Section 15 of UA(P) Act unless evidence is brought out to show that it is done with the intent to threaten or it is likely to threaten the economic security or monetary stability of India", the High Court observed. "In our view, what is made an offence under Section 15(1)(a)(iiia) of UA(P) Act is causing damage to the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or any other material relatable to currency or coin. "Other material" can be any material connected to counterfeit Indian paper currency or counterfeit Indian coin, like machinery or implements or high quality paper or any other material which could be used for producing or circulating fake currency or coin. Illegal acts referred to in the above provision certainly will have a direct impact on the economic security of India", it was held further. 

43. "What Sort Of Peaceful Protest Was Being Carried Out When He Was Photographed Brandishing Sword?": Gauhati HC Denies Bail To 2 Accused Booked Under UAPA Charges [Bhaskarjit Phukan and Bhupen Gogoi v. National Investigation Agency]

The Gauhati High Court dismissed the bail plea of two accused in connection with a case registered against them for alleged disruption of supplies by economic blockade staged at railway track and national highway at Chabua town on 09th December 2019 and attempt to murder government functionaries on duty by throwing stones. The Bench of Justice Kalyan Rai Surana and Justice Ajit Borthakur specifically said, "The materials on record prima facie disclose culpability of the appellants and their involvement in the commission of alleged offences as more fully mentioned in the charge sheet." "The counsel for the appellants did not make any attempt to explain as to what sort of peaceful protest was being carried out by the appellant no.1, when he was photographed brandishing a sword before a large crowd while actively participating in the protest programme. By use of violence the appellant led mob had brushed aside the noble concept of non- violent protest, which is popularly known as Mahatma Gandhi's concept of satyagraha and that such conduct of paralyzing the Govt. machinery, causing economic blockade, causing enmity between groups, disruption of public peace an widespread disharmony and dissatisfaction towards the Govt., are acts which are prejudicial for national integration and such acts squarely falls within the definition of "terrorist act" as defined in section 15 of the 1967 Act.", the Court observed. The Court also said that it can hardly subscribe to the proposition that the act of burning down of a railway station and vandalizing some more railway stations cannot be termed to be a "terrorist act". Having regard to the requirement of section 43D(5) of the UAPA, the Court made a probe into the matter so as to enable it to prima facie arrive at a finding that the materials collected against the appellants during investigation may be sufficient to lead to conviction.

44. Bombay High Court Dismisses Bail Application Of Gautam Navlakha In Bhima Koregaon Case [Gautam P. Navlakha v. NIA]

The Bombay High Court rejected the bail application of senior journalist and activist - Gautam Navlakha - an accused in the Elgar Parishad – Maoist links case. A division bench of Justices SS Shinde and MS Karnik passed the order on a criminal appeal filed by Navlakha against an order of the special court, which rejected his application for default bail in June, last year. He is in prison since his surrender on April 14, 2020. "We see no reason to interfere with the order of the trial court", said the Court. Navlakha sought default bail on the grounds that the National Investigating Agency (NIA) had failed to file their chargesheet within the stipulated period of 90 days. The NIA, however, contended that Navlakha was under house arrest for 34 days, between August 29 to October 1, 2018, which was declared illegal by the Delhi High Court. Therefore, it could not be included in his custody period.

45. Gold Smuggling With Intent To Threaten Economic Security Of Country A 'Terrorist Act' Under UAPA : Rajasthan High Court [Mohammed Aslam v. Union of India]

The Rajasthan High Court has observed that the offence of gold smuggling with the intent to threaten or likely to threaten the economic security of the country covered under the definition of 'terrorist act' under Section 15 of the Unlawful Activities Prevention Act, 1967(UAPA). The Court said that such an activity will come under Section 15(I)(iiia) of the Act. Section 15(I)(iiia) of UAPA mentions activities with intent to threaten or likely to threaten the economic security of the country causing "damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material". A single bench of Justice Satish Kumar Sharma made this observation while refusing to quash an FIR under UAPA in a petition filed under Section 482 of the Code of Criminal Procedure Code. "Under Section 15(I)(a)(iiia) of the Act of 1967, the smuggling of gold with intent to threaten or likely to threaten the economic security of the country is very much covered under the smuggling of "any other material" Thus, the contention of the petitioner in this regard is not tenable", the bench observed. "The offence under the Customs Act for smuggling of gold and the offence under Section 16 of Act of 1967 are distinct offences,hence, separate prosecutions are maintainable under the law.Therefore, merely on the basis of prosecution under Customs Act,the impugned FIR cannot be said to be violative of the provisions of Article 20 of the Constitution of India and Section 300 of Cr.P.C", the bench observed.

46. UAPA- Delhi High Court Rejects Plea Against Extension Of Period Of Investigation And Detention Of 'Suspected Al-Qaeda Operatives'  [Najmus Sakib v. NIA]

The High Court of Delhi refused to set aside the Trial Court's order directing extension in the period of investigation and custody of the accused for a period of 45 days with directions to the investigating agency to expedite the investigation. A single Bench of Justice Rajnish Bhatnagar heard the plea by two accused Najmus Sakib and Al Mamun Kamal against order passed by Special Judge, NIA, Patiala House Court extending the period of investigation and their detention by 45 days under the UAPA Act and remanding them to judicial custody. The Court observed that extension was given by Trial Court after considering the progress of investigation as only a 45 days extension was granted as opposed to the 90 days extension sought by the investigating agency. It also noted that justifiable grounds were made out by the investigating agency in the application filed for seeking the extension. The petitioners, including a 22-year old students and 36-year old wage labourer were arrested from their permanent residence in West Bengal along with 10 other accused arrested for allegedly planning anti-national and terrorist activities. They have been accused of the "suspected offence" of belonging to a group of "jihadi terrorists" inspired by the terrorist organization Al Qaeda, and planning terrorist activities at several locations in India.

47. UAPA - Investigating Agency Not Place Of Occurrence Matters To Determine Sanctioning Authority Under Section 45: Kerala High Court [T.I Madhusoodnan and Ors v. State of Kerala]

The place of occurrence will not matter for determining the sanctioning authority under Section 45 of the Unlawful Activities(Prevention) Act(UAPA), held the Kerala High Court while dismissing the appeals of senior CPI(M) leader P Jayarajan and other accused in the Kathiroor Manoj murder case. A division bench of Chief Justices S Manikumar and Justice Shaji P Chaly held that what matters for determining the sanctioning authority is the question who controls the investigating agency. The appellants had argued that since the crime took place in Kerala, the sanction of State Government was necessary for the Special Court to take cognizance of the UAPA offencesRejecting this argument, the division bench held : "In our considered view, a reading of the above provisions together would make it clear that it is not the place of occurrence of the crime that matters, but what matters is the agency conducting the investigation under the control of the Central Government and admittedly, in the instant case the investigation is conducted by an agency under the control of the Central Government and the offences under Sections 15 and 16 of the UAPA is incorporated in the final report, and therefore, the sanction issued by the Central Government is a validly constituted one. It is also clear that merely because the central agency conducts an investigation into any offence within the State, it is never under the control of the state government especially due to the fact there is no enabling provision under any one the acts discussed above to do so. Which thus means the central agency conducting the investigation is always under the control of the Central Government and that power under any circumstances is not conferred on the State Government even while conducting an investigation within a state". It was further held, "Therefore, according to us, the provisions of Section 45 makes it clear that it is not the place of occurrence that matters, but the investigating agency is what matters. That means, as per Section 45(1)(ii) a clear segregation is made by which both, the State and the Central Government agencies are vested with the powers to conduct investigation and submit a final report before the competent court and if an investigation was conducted by a State agency in the instant case the State Government had the power to grant sanction".

48. 'Individual Rights Should Subserve The National Interest': Kerala High Court Cancels Bail Granted To Journalism Student In UAPA Case

Individual rights should subserve the national interest, observed the Kerala High Court while setting aside the order passed by Special NIA Court Kochi granting bail to Thwaha Fasal in a UAPA case for alleged Maoist links. The Division Bench comprising Justices A. Hariprasad and K. Haripal observed that when individual rights are pitted against national interest and security, the latter should prevail. The court observed that the documents seized from the accused carry the seeds of a secessionist ideology. While considering the appeal filed by Union of India, the bench referred to the provisions of the UAPA Act and observed that if there are materials to infer that the accused have done something to promote or enthuse the activities of a terrorist organisation or done anything supporting its activities with the intention to further its activities, these offences are attracted. "Whenever an offence falling under Chapters IV and VI of the Act is alleged against the accused, on perusal of the case diary or the final report that there are reasonable grounds for believing that the accusation against the said person is prima facie true, the Act restrains the court from releasing him on bail.", the court said. "It also requires to be stated that very many authorities were relied on by the learned Special Judge outside the context. While considering the question whether there is prima facie material to infer commission of offence under Sections 38 and 39 of the Act, the court should have confined to the area of enquiry instead of going haywire. We have no doubt that rights and personal liberty are sacrosanct. Courts are bound to protect it. At the same time, individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail", the Court further observed. 

Also Read: Kerala High Court Sets Aside Bail Granted To Thwaha Fasal In UAPA Case Over Alleged Maoist Links; Allan's Bail Not Cancelled

Trial Courts 

1. Special NIA Court Refuses Temporary Bail To Anand Teltumbde To Visit 90-Year-Old Mother After Brother's Demise 

A Special NIA Court rejected Dalit scholar and Bhima Koregaon - Elgar Parishad case accused Anand Teltumbde's plea for temporary bail to visit his 90-year-old mother for 15 days following brother - Milind's - death in an encounter. NIA opposed the application as being devoid of merits and unsustainable in law. Moreover, the agency emphasized that the professor was charged with serious offences under the Unlawful Activities Prevention Act and his reasons for temporary bail were not of "dire necessity' to warrant bail. Special NIA judge DE Kothalikar enquired if Teltumbde's application was maintainable considering the fact that an appeal against rejection of his bail plea is pending before the High Court. Advocate R Sathyanarayan said that the plea before the High Court was on merits while temporary bail is sought on humanitarian grounds. However, the Court rejected the plea as per the court's roznama. Milind, an alleged Maoist leader was killed in an encounter by security personnel in Maharashtra's Gadchiroli district along with 26 others, last month. He was accused of being in-charge of CPI(M)'s Maharashtra-Madhya Pradesh-Chhattisgarh (MMC) zone and was also wanted in the Bhima Koregaon Elgar Parishad Case. In his application before Special NIA court, Teltumbde said that his father and youngest brother passed away a couple of years ago. And even though he lost contact with Milind sometime in the 1990's, his mother is over 90-years-old and at such a moment of bereavement in the family, he being the eldest, his presence by his mother's side and siblings would be of great moral support.

Also Read: Anand Teltumbde Seeks Temporary Bail To Visit Mother After Brother's Encounter Killing

2. 'Fine Balance To Be Maintained Between Societal Interest & Personal Liberty Of Accused' : NIA Court While Rejecting Anand Teltumbde's Bail Plea [Dr Anand Teltumbde v. State of Maharashtra]

The Special NIA Court rejecting Dalit Scholar Anand Teltumbde's regular bail plea under the Unlawful Activities (Prevention) Act has said it a fine balance has to be maintained between the societal interest and personal liberty of the accused while considering bail applications. "The courts considering the bail application are required to maintain fine balance between the societal interest vis­-a­-vis personal liberty of the accused by adhering to the fundamental principle of Criminal Jurisprudence", the Court observed. "This court is of the unhesitant opinion that in view of the findings recorded by the learned Sessions Judge while deciding the application for anticipatory bail that the allegations made against the applicant are prima facie true and that said findings have been confirmed by the Hon'ble High Court, it is not possible to record contrary finding", Special Judge DE Kothalikar observed in his 40-page order. The Special Judge said that even otherwise, since he has independently concluded that the allegations against Teltumbde are prima facie true, considering the rider under section 43­D(­5) of the UAP Act, a case for bail was not made out. "Upon perusal of the documents, including the exchange of emails and the statements of the witnesses relied upon by the prosecution, and after cross-checking the truthfulness of the allegations made against the applicant, this court does not find that the accusations are inherently improbable or wholly unbelievable", it was further held. 

Also Read: Bhima Koregaon Case : Special NIA Court Rejects Prof Anand Teltumbde's Bail Application

3. Delhi Court Sentences Two Hizb-ul Mujahideen Members To 12 Yrs, Others To 10 Yrs For Terror Funding, Waging War Against India [NIA v. Mohammad Shafi Shah & Ors]

A Delhi Court on Monday sentenced two Hizb-ul Mujahideen members namely Mohd. Shafi Shah and Muzzafar Ahmad Dar to 12 years imprisonment while sentencing the other two men namely Talib Lali and Mushtaq Ahmad Lone to 10 years imprisonment for terror funding and waging war against the Government of India. Additional Sessions Judge Parveen Singh passed the order on sentence after the four were convicted under various provisions of IPC as well as UAPA. The case was lodged with allegations that Hizb-ul- Mujahideen (HM) had been regularly receiving funds originating from neighbouring countries for carrying out terrorist activities in India and that in the garb of an organization namely, Jammu Kashmir Affectees Relief Trust (JKART), the said terrorist outfit was actively involved in furthering the terrorist activities in India. Perusing the socio economic reports of the convicts, the Court opined thus: "I find that the hand which provides the gun or the motivation to take up the gun is equally liable as the hand which ultimately fires that gun. The convicts, in this case, may not have been charged and convicted for any direct terror act leading to loss of life or property however, the proxy war in the State of J&K which has been raging since decades has resulted in loss of numerous lives and destruction of State property." "Thus, merely because, in the present case, the convicts were not directly responsible for loss of life and property, it cannot be accepted that they were not responsible for loss of life and destruction of property because of the terrorist activities of HM. On the contrary, I find that the funding network run by these convicts on the instructions of their handlers sitting in Pakistan had a greater responsibility for the terror acts committed by HM as in absence of such funding, which financed the cadres of HM and provided logistic support, it would not have been possible to commit those terror activities," the Court said.

4. 'Possessing Book Of Bhagat Singh Is Not Barred Under Law' : Court Acquits 2 Of UAPA & Sedition Charges [State of Karnataka v. Vittala Malekudiya]

While acquitting two tribal persons in a UAPA case over alleged links with Naxalites, a Sessions Court in Mangaluru recently observed that possession of book about revolutionary freedom fighter Bhagat Singh is not barred under the law. The police had seized a book of Bhagat Singh, certain articles and paper cuttings from the accused to allege that they had links with Naxalites. "The book of Bhagath Singh has been seized, possessing the book of Bhagath Singh is not barred under law", observed the Sessions Court Mangaluru while acquitting Vittala Malekudiya (23), then a Journalism student and his father Lingappa Malekudiya, charged for the offences under Section 120B, 124A of IPC and Section 19 and 20 of Unlawful Activities Prevention Act, 1967. The Court added that mere possession of newspaper cuttings and articles did not prove the offences against the accused. They were arrested in 2012 for allegedly concealing or harbouring Naxalites belonging to the banned Organization Communist Party of India (MarxistLeninist)-People's War. Additional District and Sessions Judge B. B. Jakati acquitted them noting that evidence is not sufficient to prove their guilt.

5. "Suspicion Cannot Substitute Evidence": Delhi Court Discharges Four Men Booked Under UAPA In Terror Funding Case [NIA v. Mohd. Salman & Ors]

A Delhi Court has discharged four men booked under the Unlawful Activities (Prevention) Act in connection with an alleged terror funding case after observing that the prosecution failed to bring any evidence which would raise a grave suspicion that the funds were originated from a terrorist organisation or if they were intended to be used for terror activities Special NIA Judge Parveen Singh said: "Though there may be some suspicion raised as to what this special purpose was or what those different plans were, however, mere suspicion cannot substitute evidence and it is only the evidence that can be used to assign the meaning which the prosecution seeks to assign to these words." "On what basis the prosecution states that the word 'ghee' is a code for explosives has not been specified. The cipher on the basis of which this code has been deciphered has also not been disclosed before the court...Similarly, the word 'khidmat'...literal meaning...is service and it could be any service. Unless there are surrounding circumstance or any conversation prior to this sentence or after this sentence which would reflect that use of word khidmat in this sentence meant service of persons who had undergone terrorist training, this meaning can not be assigned to this word", the Court observed further. The Court also added that there was no evidence on record that any sleeper cell or hide outs or base for FIF or LeT had come into existence by use of the funds. "The prosecution has tried to impress that meaning of these words which is to be deciphered is that the special purpose, different plans and any kind of work could only mean terror activities or creation of sleeper cells/ hideouts for terrorists. However, there is no evidence on record on the basis of which such meaning can be given to these words. There is nothing on record to show that there was any code that was being used and has been deciphered wherefrom the meaning which the prosecution seeks to attach to these words can be accepted," the judge added.

6. Special NIA Court Rejects Professor Shoma Sen's Interim Medical Bail Plea In Bhima Koregaon - Elgar Parishad Case

A special NIA court refused interim medical bail to Shoma Sen, a former professor at Nagpur University, who was arrested in the Bhima Koregaon - Elgaar Parishad caste violence case in 2018. Special Judge DE Kothalikar said, "The prison authority shall observe medical protocol and provide appropriate medical aid to the applicant (Sen) if required." In an application through her lawyers Sharif Shaikh and Kritika Agarwal, Sen pointed out that she suffered from hypertension, blood pressure and other ailments, making her vulnerable to the Covid-19 virus. She relied on guidelines issued by the High Power Committee on releasing certain persons from prison. Special Public Prosecutor Prakash Shetty for NIA opposed the application. He submitted that similar pleas filed by other accused have been rejected. Moreover, Covid-19 cannot be used as a ground for a release anymore. However, Shaikh said that the HPC's guidelines continue to operate, therefore they were entitled to claim appropriate reliefs.The special court then went on to reject the application.

7. Narendra Dabholkar Murder Case: Special Court Charges Accused Of Murder, Criminal Conspiracy And Committing Terror Acts Under UAPA

A special court in Pune has formally charged four accused in 2013 killing of anti-superstition crusader Narendra Dabholkar for murder, conspiracy and terror-related offences under the Unlawful Activities Prevention Act. The fifth accused, a practising lawyer, has been charged only with the destruction of evidence. Special Judge SR Nawandar framed charges against ENT surgeon Dr Virendrasinh Tawade, the alleged assassins Sachin Andure and Sharad Kalaskar, Sanjeev Punalekar, and his aide Vikram Bhave, after all of them pleaded "not guilty." The four alleged right-wing extremists were charged with murder(302), criminal conspiracy(120B) under section 16 (committing terror acts) of the Unlawful Activities (Prevention) Act and under the Arms Act. Punalekar was charged with 201 of the IPC. Tawade, Andure and Kalaskar were produced from prison via video conference. Punalekar, out on bail, was physically present. Dabholkar, an anti-superstition crusader and activist, was shot dead by two bike-borne men on a morning walk in Pune on August 20, 2013. 

Also Read: Dr. Virendrasinh Tawade, Prime Accused in Narendra Dabholkar Murder, Approaches Bombay High Court For Bail

Also Read: Narendra Dabholkar Murder Case: CBI Seeks UAPA, Terror Charges Against Accused, Defence Points Out Contradictions In Probe

8. "Bail Application Under Stringent Law Like UAPA Should Not Be Dismissed Due To Technical Mistakes": Riots Accused Tells Delhi Court

Seeking bail in the Delhi Riots larger conspiracy case, riots accused Gulfisha Fatima has told a Delhi Court that bail application under stringent law like Unlawful Activities (Prevention) Act should not be dismissed merely due to some technical mistakes. Advocate Mehmood Pracha told Additional Sessions Judge Amitabh Rawat that sec. 16(3) of National Investigation Agency Act gives a hybrid power to the Special Court to deal with bail application both under sec. 437 CrPC and 439 CrPC. The development came after Special Public Prosecutor Amit Prasad, while objecting to the maintainability of bail plea filed by co-accused Ishrat Jahan in the case, submitted that application filed under Section 437 must have been moved in place of Section 439 of CrPC, primarily because the Court hearing the plea is a special court designated under UAPA Act and therefore exercises all powers that are before the Court of Magistrate within the rigours of Section 437 of CrPC. "The issue is still pending. How are they approaching your lordship? Where is the chargesheet as the special judge?" Pracha submitted. He also added that there are exemplary powers with the Court and that the Court is duty bound at the very existence to find out the truth.

Also Read: Delhi Police Opposes Delhi Riots Accused Gulfisha Fatima's Plea For Release

9. Special NIA Court Rejects Interim Bail Pleas Of Anand Teltumbde and Gautam Navlakha

The Special NIA Court has rejected temporary bail pleas of professor Anand Teltumbde and journalist Gautam Navlakha, accused in the Bhima Koregaon - Elgar Parishad caste violence Case. In their applications sent directly from prison, the two sought to be released temporarily citing their age and vulnerability to Covid-19. The pleas were filed pursuant to directions from the jail administration asking all inmates above 60 years to apply for interim bail due to the pandemic. Special Public Prosecutor (SPP) Prakash Shetty claimed that Navlakha had failed to submit a medical certificate along with his bail application. "The covid situation has improved considerably", he added. Special Judge DE Kothalikar rejected the bail applications. "Needless to say that the prison authority shall provide appropriate medical aid to the applicant, whenever the situation would arise." As for Teltumbde, the bench said that he had sought interim bail in his bail application on merits. However, since the substantive bail plea was rejected, this wouldn't survive either.

10. Mathura Court Dismisses UP Police Application To Take Further Statement Of Journalist Siddique Kappan

A local court in Mathura, Uttar Pradesh has rejected Uttar Pradesh Police application seeking nod to conduct further probe against Kerala-based journalist Siddique Kappan who has been booked for various offences under the stringent UAPA (Unlawful Activities Prevention Act). ASJ Anil Kumar Pandey today dismissed the demand of the UP police/STF to conduct further investigation of the case against Kappan. It was further submitted that Kappan was willing to undergo a Lie detector test/Brain Mapping test/Narco Analysis Test to prove his innocence. In addition to this, that he has been refused medical treatment despite the specific directions of the Supreme Court for the release of Mr. Kappan from illegal detention. To this, the court decided to seek the report from the jail authorities on August 23 ,2021.

11. UP Court Refuses Bail To Kerala Journalist Siddique Kappan In UAPA Case

A local court in Mathura, Uttar Pradesh has rejected the bail plea of Kerala-based journalist Siddique Kappan who has been booked under various offences under the stringent UAPA (Unlawful Activities Prevention Act). Taking note of the allegations against Kappan, Additional Sessions Judge Anil Kumar Pandey rejected the bail plea. The Court primarily took into account the alleged material collected against him during the investigation carried out to deny him bail. The court noted that the allegation against Kappan is that he, along with the co-accused committed acts that promoted enmity within the society and affected the communal harmony prevailing in the society. The Court also noted that it has been alleged that Kappan had received foreign funding for the purpose of affecting and damaging the integrity of the nation and that during the investigation, it had been found out that he is a worker of PFI and has been indulged in anti-national acts. The Court said that though Kappan submitted that he wanted to proceed to Hathras in the capacity of a Journalist, however, the identity card which was found with him was of a news platform, which had stopped its operations in the year 2018.

Also Read: Uttar Pradesh Court Drops Breach Of Peace Charges Against Kerala Journalist Siddique Kappan, Three Others

Also Read: Kerala Journalist Siddiqui Kappan Moves Mathura District Court Seeking Regular Bai

12. "Materials Inadequate To Attribute Any Act Of Terrorism Under UAPA": NIA Court Discharges Akhil Gogoi In Chabua Case [Spl. (NIA) Case No. 03/2020]

A Special NIA Court in Gauhati has discharged Raijor Dal Chief, Akhil Gogoi in the Chabua case involving UAPA. Special NIA Judge Pranjal Das ordered thus: "In view of the materials on record as discussed above, I am of the considered opinion that the omissions and commissions of A- 1 revealed by the materials cannot be prima-facie said to be a terrorist act done with the intention of threatening unity, integrity, sovereignty and security of India or a terrorist act done with the intention to strike terror in the people. Therefore, from the aforesaid deduction, I am of the considered view that it cannot be said that there are no sufficient materials prima-facie for framing charge against the accused A-1 Sri Akhil Gogoi u/s 16 of the UA (P) Act, 1967." On the basis of the materials, I also do not find a prima-facie case for the purpose of framing charge, to hold A-1 personally criminally liable for offences of rioting, unlawful assembly causing damage to property, causing hurt to public official on duty", the Court said. Consequently, the Court also discharged other co accused persons namely Jagjit Gohain and Bhupen Gogoi. However, the Court framed charges against Bhaskarjit Phukan under sec. 144/148 of IPC.

Also Read: Blockades Without Incitement To Violence Not 'Terrorist Act' Under UAPA : NIA Court Discharges Akhil Gogoi

13.NIA Court Discharges UAPA Accused In IISc Attack Case After 4 Years Jail [State of Karnataka v. Sabahuddin Ahamad]

A Special NIA court in Bengaluru has discharged an accused Mohammed Habeeb arrested for his alleged role in connection with the December 2005 shooting case at the Indian Institute of Science (IISc) which led to the death of one person and injuries to some others. Special Judge Dr. Kasanappa Naik discharged the accused saying "The prosecution has not made out prima facie case against accused No.7 (Habeeb) to frame charge against him for the offence punishable under Sections 120-B, 121, 121-A, 122, 123, 307, 302 of the IPC, Sections 25, 27 of the Indian Arms Act, Sections 3, 4, 5 and 6 of the Explosive Substance Act and Sections 10, 13, 16, 17,18 and 20 of the Unlawful Activities (Prevention) Act, 1967." The judge said "he failed to understand why he was arraigned as an accused in the case". Habeeb was arrested in the year 2017, in Agartala of Tripura State, based on the statement given by co-accused Sabahuddin @ Sbahuddin Ahamad in the year 2008, who was arrested first by the Lucknow police. On going through the records of the case the court noted "The case against accused No.1 was committed on 28.10.2016. The records further disclose that though the name of accused No.7(Habeeb) was came to light in the year 2008, but no steps were taken against accused No.7 to arrest him. In the year 2017, the accused No.7 was arrested in Agartala of Tripura State and he was produced before the Court below and accused No.7 was subjected to interrogation and his voluntary statement was recorded. It further reveal that in pursuance of the said 20 S.C.No.953/2017 C/w S.C.No.1386/2016 voluntary statement of accused No.7, the I.O., has conducted further investigation, but no material objects was recovered nor the statement of witnesses, who came to light in the statement, is recorded."

14. NIA Court Refuses Bail To Stan Swamy In Bhima Koregaon Case 

The Special NIA Court Mumbai refused to grant bail to 83-year-old Father Stan Swamy, a tribal rights activist, from Ranchi, in Jharkhand, accused in the 2018 Bhima Koregaon – Elgaar Parishad case. Special Judge under the NIA Act DE Kothlikar passed the order dismissing the bail application, which had also cited medical grounds on account of Parkinsons disease of Stan Swamy. The Jesuit priest was arrested on October 8, 2020 and charged under various sections of the IPC and terror related offences of Unlawful Activities (Prevention) Act for allegedly furthering the cause of banned CPI (Maoist) through various civil rights organisations he is a part of. His application for bail was pending since November, 2020. Father Stan, through his lawyer Sharif Sheikh, filed for bail on grounds that he is being framed in the case by the National Investigating Agency (NIA) due to the nature of his work and that he is suffering from serious ailments. He argued that the Persecuted Political Prisoners Solidarity Committee (PPPSC), which NIA alleged was a frontal organisation of CPI (Maoists), was one of the most prominent human rights organisations providing legal aid in Jharkhand.

Also Read: [Bhima Koregaon- Elgar Parishad Case] Special NIA Court's Reasons For Denying Bail To Father Stan Swamy-Read Order

15."Questioning Policies Of Govt. Of The Day Cant Be Branded As An Unlawful Activity Under UAPA": NC Leader Hilal Lone Granted Bail By J&K Court [Hilal Akbar Lone v. U.T of Jammu and Kashmir]

Underlining that the offence of promoting enmities between various classes or questioning the policies of the Government of the day can't be branded as an Unlawful Activity under UAPA, the Baramulla, Bandipora and Kupwara Court in Jammu & Kashmir has granted bail to the National conference leader Hilal Akbar Lone. The Additional Sessions Judge Sanjay Parihar was hearing the Bail Plea of Lone (the son of a National Conference member of parliament Muhammad Akbar Lone) who was booked under anti-terror laws for "hate speech" that he allegedly delivered in J&K's Bandipora district. Notably, it was submitted before the Court that on 25th December 2020, Lone was detained without any legal Justification and later on, he was shifted to PS Hajin in "false and frivolous case". An FIR has been lodged against him at Hajin police station of Bandipore under several sections, including Section 13 of UAPA. The Court remarked, "The petitioner was canvassing for National Conference, a political party, and it is not the case of the prosecution that the said political party is an unlawful association in terms of the provisions of the UAPA." The Court also noted, "Having said so from the allegations levelled in the police report and what is recorded in the case diary, there is not any whisper that the petitioner had exhorted the assembly of people whom he was addressing on the day when the video was shot to cause any kind of violence so as to throw out the government of the present day. It is also not the case that the petitioner was in any way inciting people to commit any kind of violence." Significantly, the Court also said, "What is alleged therein is regarding the policies of the government of the day, which according to the petitioner is 'branding Muslims as terrorists, whereas its own people are terrorising others and preventing them from discharging their religious beliefs…such spoken words wouldn't prima facie lead to the commission of offences of unlawful activity of the type as provided in section 2(o) of the Act."

16. Surat Court Acquits 122 Persons Accused of Being SIMI Members

Surat Court acquitted 122 persons arrested under Unlawful Activities (Prevention) Act for participating in a meeting organised here in December 2001 as members of the banned outfit Students' Islamic Movement of India (SIMI). The court of Chief Judicial Magistrate A N Dave acquitted 122 persons arrested for being members of the banned outfit SIMI, giving them the benefit of doubt. Five other accused had died during the pendency of trial. In its order, the court said that the prosecution failed to produce "cogent, reliable and satisfactory" evidence to establish that the accused persons belonged to the SIMI and had gathered to promote the activities of the banned outfit. The court said the accused persons cannot be held guilty under the UAPA. As many as 127 persons were arrested by Surat's Athwalines police on December 28, 2001 under various sections of the UAPA for allegedly being members of the banned outfit SIMI and organising a meeting at a hall in city's Sagrampura to promote and expand the organisation's activities.

17'UAPA Rightly Invoked' : Delhi Court Denies Bail To Student Activist Devangana Kalita In Riots Conspiracy Case [Devengana Kalita v. State of NCT of Delhi]

The Karkardooma Court (Delhi) dismissed the Bail application moved by Pinjra Tod Activist Devangana Kalita while noting that the provisions of UAPA have been rightly invoked against in connection with Delhi Riots case. The Additional Sessions Amitabh Rawat dismissed her application while taking into account that as per the investigation, there was a premeditated conspiracy of the disruptive chakka­jam and a preplanned protest at different planned sites in Delhi resulting in riots killing scores of people, injuring hundreds and causing destruction to the property. The Court remarked, "The entire conspiracy beginning from December 2019 of intentionally blocking roads to cause inconvenience and causing disrupting of the supplies of services, essential to the life of community of India resulting in violence with various means and then leading to February incident with the focus being targeted blocking of roads at mixed population areas and creating panic and attack on police personnel with facade of women protesters in front and leading to riots would be covered by the definition of terrorist act." The Court further observed, "Acts which threaten the unity and integrity of India, in as much as causing social disharmony and creating terror in any section of the people, by making them feel surrounded resulting in violence, is also a terrorist act." Regarding Kalita's role, the Court noted, "The accused (Kalita) played an active role in the riots by road blocks and disruptive chakka­jam, provocative speeches, instigation of women for stock piling sticks, bottles, acid, stones, chilly­powder for the purpose of riots."

18. 'Allegations Prima Facie True' : Delhi Court Dismisses Natasha Narwal's Bail Plea In Riots Conspiracy Case [Natasha Narwal v. State of NCT of Delhi]

Noting that the provisions of UAPA have been rightly invoked in against Pinjra Tod activist, Natasha Narwal, the Karkardooma Court dismissed the Bail plea moved by Narwal in connection with the 'Delhi Riots' Case. Additional Sessions Judge Amitabh Rawat also opined that there was sufficient incriminating material against Narwal. This is the first bail application of accused Natasha Narwal after the filing of the charge sheet. It may be noted that she was arrested in the instant case on 29th May 2020. The Court specifically observed that threadbare discussion of the charge sheet or detailed analysis of the Unlawful Activities (Prevention) Act is not required at the stage of bail and therefore, if the Charges under UAPA are attracted and prima facie case is made out against the Accused then the bail application deserves to be dismissed. The Court further noted, "Acts, which threaten the unity and integrity of India, in as much as causing social disharmony and creating terror in any section of the people, by making them feel surrounded resulting in violence, is also a terrorist act. It is also relevant to mention here that even taking the arguments of the counsel for accused at face value that only one side of the road was blocked, it would still be a complete blockage preventing ingress and egress for the people who are surrounded and for whom panic and terror is created." Accordingly, the Court observed, "In view of the above discussion, since there are reasonable grounds for believing that the accusation against the accused Natasha Narwal are prima facie true, hence, embargo created by Section 43D of UAPA applies for grant of bail to the accused."

19. Ambani Bomb Scare Case: Special Court Refuses NIA Custody Of Dismissed Cop Sachin Waze, Orders Hospital Admission For Surgery [Sachin Waze v. National Investigation Agency]

A special court rejected the National Investigation Agency's plea for dismissed cops Sachin Waze and Sunil Mane's custody in the Ambani Terror Scare and Mansukh Hiran Murder Case. The Special Judge also allowed Waze to undergo treatment at a private hospital following a medical report that he required a Coronary Artery Bypass Surgery (CABS). During the hearing, Waze told the court in Marathi that he didn't want to become another 'Stan Swamy.' NIA arrested Waze on March 13, 2021. He and 9 others have been booked under stringent sections of the Unlawful Activities (Prevention) Act. "The investigation agency has traced incrementing material against suspected accused who have a key role in the present crime and... certain points of investigation are required to be verified by confrontation of arrested accused person i.e. Sachin Waze, Sunil Mane and the role of suspected persons." NIA said in their plea.

Also Read: Dismissed Cop Sachin Waze Approaches Special NIA Court Seeking House Arrest For Post-Bypass Recovery

20. Cases Against Him A 'Whip Of Monarch', Not Govt Established By Law: Sharjeel Imam's Lawyer Tells Court In Riots Case [State v. Sharjeel Imam]

Sharjeel Imam has told a Delhi Court that his prosecution in relation to the speeches made by him in Aligarh Muslim University and Jamia area in Delhi against the Citizenship Amendment Act is a whip of a monarch rather than the Government established by law. "Today, this Prosecution of Sharjeel Imam is more of whip of a monarch rather than a government established by law. This is not how the government or executive have to respond. At the end of the day, dispensation will change. Nothing is permanent," Advocate Tanveer Ahmed Mir appearing for Imam submitted before the Court. Additional Sessions Judge Amitabh Rawat was hearing the case concerning Sharjeel Imam in relation to the speeches made by him in Aligarh Muslim University and Jamia area in Delhi against the CAA under FIR 22/2020 registered by the Delhi Police under sec. 124A, 153A, 505 of the IPC along with sec. 13 of the UAPA which was added later. Seeking bail as well as discharge in the matter, Mir submitted that there was no call for violence in the speeches made by Imam and that the allegations made by the Prosecution were only rhetorics having no basis. 

Also Read: "Sharjeel Imam Challenged Sovereignty Of India, Tried To Imbibe Sense Of Hopelessness In Muslims": Prosecution Tells Delhi Court In Riots Case

Also Read: "Sharjeel Imam's Speech Starting With 'As-salamu alaykum' Shows It Was Addressed To A Particular Community": Prosecution Argues In Delhi Riots Case

Also Read: 'Can A Person Be Booked For Sedition For Criticizing A Political Narrative?': Sharjeel Imam To Delhi Court In His Bail Plea




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