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UAPA - If Chargesheet Does Not Reveal Prima Facie Case, Embargo For Bail Under Sec 43D(5) Won't Apply : Supreme Court

LIVELAW NEWS NETWORK
29 Oct 2021 6:35 AM GMT
UAPA - If Chargesheet Does Not Reveal Prima Facie Case, Embargo For Bail Under Sec 43D(5) Wont Apply : Supreme Court
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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...

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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", a bench comprising Justices Ajay Rastogi and Abhay Sreeniwas Oka stated.

The bench was deciding the case of bail related to Kerala students Thwaha Fasal and Allan Shuhabi, who were charged under the UAPA over alleged links to banned Maoist group.

While the Special NIA Court allowed them bail after noting that the chargesheet did not reveal a prima facie case against them, the High Court on appeal reversed those findings. The High Court set aside the bail granted to Thwaha but sustained Allan's bail on consideration of his medical condition of depression and younger age.

The Supreme Court allowed Thwaha's appeal against the High Court judgment and dismissed NIA's appeal against the bail granted to Allan.

The judgment authored by Justice Oka referred to the SC precedent in National Investigation Agency v. Zahoor Ahmad Shah Watali and observed :

"Therefore, while deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI. The grounds for believing that the  accusation against the accused is prima facie true must be reasonable grounds.

Court not expected to conduct a mini trial to ascertain prima facie case

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".

In the instant case, the Court noted that taking the charge sheet as correct, at the highest, it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation. However, there is no material to show that they had "intention to further the activities" of the terror group, so as  to attract the grave offences under Sections 38 and 39 of the UAPA.

The Supreme Court observed that the findings of the Special Court was based on the materials of the chargesheet. The High Court has not recorded any prima facie case regarding the intention to further the activities of terror group.

"The High Court observed that the learned Special Judge has oversimplified the matter. However, the High Court did not notice that by taking the material collected during the investigation which forms a part of the charge sheet as it is, the Special Court had recorded a prima facie finding regarding the absence of any material to show intention on the part of the accused to further the activities of CPI (Maoist). The High Court has not recorded prima facie finding on this aspect. By applying the law laid down in the case of Watali (supra), there were no reasonable grounds for believing that the accusations against the accused nos.1 and 2 of commission of offences under Sections 38 and 39 were prima facie true", the Court noted.

The Court also noted that stringent conditions have been imposed by the Special Court for bail. Accordingly, the Special Court's order was restored and the High Court's judgment was set aside.


Also Read : Mere Support To Terrorist Organization Without Intention To Further Its Activities Does Not Attract Section 38/39 UAPA : Supreme Court

Senior Advocate Jayanth Muthuraj argued for Thwaha Fasal

Senior Advocate R. Basant, Advocate Raghenth Basant argued for Allan Shuhaib

Additional Solicitor General of India (ASG) SV Raju argued for Union of India

Case name and Citation: Thwaha Fasal vs. Union of India LL 2021 SC 605

Case no. and Date: CrA 1302 OF 2021 | 28 October 2021

Coram: Justices Ajay Rastogi and Abhay S. Oka

Click here to Read/Download Judgment

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