UAPA: All India Annual Digest 2024

SUPREME COURTBail under UAPA, 1967 – Applicability of Section 43-D(5) – Principles and Constitutional Considerations – Long Incarceration and Delay in Trial - Prima Facie Assessment - Fundamental Rights and Speedy Trial - Precedence of Constitutional Rights - The Supreme Court reiterated the principles governing the grant of bail under Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA), emphasizing Courts must assess whether the accusations are prima facie true based on the FIR, charge sheet, and case diary, considering the totality of evidence on broad probabilities. If accusations are not prima facie substantiated, bail may be granted. Inordinate delays in trial and long periods of incarceration without conviction violate Article 21 of the Constitution. Courts must harmonize statutory provisions with constitutional guarantees. While legislative intent must initially be adhered to, prolonged detention without trial mandates prioritization of constitutional rights over statutory bars under UAPA. The allegations against the appellant, including participation in meetings and protests organized by the Popular Front of India (PFI), did not establish prima facie involvement in terrorist activities under the UAPA. Protected witnesses' statements and recovered materials lacked incriminating evidence directly implicating the appellant. The appellant had been in custody for over two years without trial commencement, with 40 accused and 354 witnesses prolonging the trial. The Court set aside the High Court's denial of bail, granted bail to the appellant, and emphasized that denying bail in deserving cases contravenes Article 21. The Special Court was directed to release the appellant on appropriate terms within seven days. Athar Parwez v. Union of India, 2024 LiveLaw (SC) 1006Validity of default bail granted under Section 167(2) of the CrPC read with Section 43-D of UAPA - Jurisdiction of the Magistrate in granting an extension of time for filing the chargesheet in cases under UAPA - The appeal arises from an order by the High Court granting default bail to the respondents involved in a bomb blast case, under multiple charges including UAPA and the NDPS Act. The High Court held the extension of time granted by a Judicial Magistrate First Class (JMFC) was invalid as only a Designated Special Court could grant such extensions under UAPA. The Supreme Court set aside the High Court's order, emphasizing that the right to default bail under Section 167(2) CrPC must be exercised before the filing of the chargesheet. In this case, the chargesheet was filed on 29.04.2022, and the application for default bail was made on 02.09.2022, well after the filing, thereby extinguishing the right to default bail. The Court reaffirmed that the right to default bail is enforceable only until the chargesheet is filed. The jurisdictional error by the JMFC in granting an extension does not revive the right to default bail once the chargesheet has been filed. The appeal by the State was allowed, and the default bail granted by the High Court to the respondents was set aside. State of Punjab v. Sukhwinder Singh, 2024 LiveLaw (SC) 990The Supreme Court declared as bad in law the judgment of the High Court which held that an accused can be granted bail under the UAPA if he does not present any "clear and present danger" to the society. The High Court judgment, which granted bail to journalist also held that lowering of India's global reputation cannot be held to be a terrorist act within the meaning of Section 15 of the UAPA. The Court noted submissions that the High Court's reliance on Schenck v. United States, (249 US 47 (1919) : 1919 SCC Online US SC 62) was per incuriam in light of Indian precedents having rejected the application of the doctrine of “clear and present danger”. (Babulal Parate v. State of Maharashtra, AIR 1961 SC 884; State of Madras v. V.G. Row, [(1952) 1 SCC 410 and Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234). While declaring the High Court judgment to be per incuriam and directing that it should not be cited as a precedent, the Court however did not interfere with the bail granted to Fahad Shah. Union Territory of Jammu and Kashmir v. Peerzada Shah Fahad, 2024 LiveLaw (SC) 802Higher thresholds for granting bail in stringent penal statutes like the PMLA, UAPA, and NDPS Act cannot be a tool to keep an accused incarcerated without trial. V. Senthil Balaji v. Deputy Director, 2024 LiveLaw (SC) 750 : AIR 2024 SC 4760Validity of sanction should be challenged at the earliest instance available, before the Trial Court. If such a challenge is raised at an appellate stage it would be for the person raising the challenge to justify the reasons for bringing the same at a belated stage. Such reasons would have to be considered independently so as to ensure that there is no misuse of the right of challenge with the aim to stall or delay proceedings. Fuleshwar Gope v. Union of India, 2024 LiveLaw (SC) 729 : ...

UAPA: All India Annual Digest 2024

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