Reserved On 20.05.2022 vs Ut Of J&K Through Investigating ...
2022 Latest Caselaw 701 j&K/2

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR


                                                  CrlA (D) No. 15/2021
                                                  CrlM No.1064/2021

                                                Reserved on   20.05.2022.
                                                Pronounced on 25.05.2022.
Waheed ur Rehman Parra
                                                              ..... petitioner (s)

                               Through :- Mr. Sharik Reyaz, Advocate

                         V/s

UT of J&K through Investigating Officer,                     .....Respondent(s)
P/S Counter Intelligence

                               Through :- Ms. Asifa Padroo, AAG

Coram:
    HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
    HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE


                                JUDGMENT

Sanjeev Kumar, J

1 This is an appeal by the appellant under Section 21 of the National

Investigation Act, 2008 [„the Act‟] against order dated 20.07.2021 passed by

the Special Judge Designated under the Act, Srinagar,[„trial Court‟] rejecting

the bail application of the appellant in pending challan in FIR No.31/2020

registered in Police Station, CIK Srinagar under Sections 13, 17, 18, 38, 39 &

40 of Unlawful Activities (Prevention) Act, 1967 ["UAPA Act"] read with

Sections 120-B, 121, 121-A & 124-A IPC.

2 The appellant has challenged the order of rejection of his bail by

the trial Court inter alia on the ground that FIR No. 05/2020 was registered on

11.01.2020 against one Syed Naveed Mushtaq and ors., in Police Station

Qazigund under Sections 18, 19, 20, 38, 39 of UAPA Act read with Section

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7/25 Arms Act and Section 3/4 Explosive Substances Act. The investigation of

the said FIR was thereafter taken over by the National Investigating Agency

under the Act and the case was re-registered as RC.01/2020/NIA/JMU on

17.01.2020 and in the said case, the appellant was arrested. The appellant filed

an application for bail before the Court of 3rd Additional Sessions Judge,

Jammu (Designated Special Judge under the Act), however, during the

pendency of the said bail application, the respondents, on same set of

allegations, which were subject matter of investigation in FIR

No. RC.01/2020/NIA/JMU, registered another FIR i.e. FIR No. 31/2020 in

Police Station, CIK Srinagar under Sections 13, 17, 18, 38, 39 & 40 of UAPA

Act read with Sections 120-B, 121, 121-A & 124-A IPC and as soon as the

appellant was released on bail in RC.01/2020/NIA/JMU, he was arrested in the

subsequent FIR i.e. FIR No. 31/2020 and this was done only with a view to

attain collateral purpose of detaining the appellant illegally and unlawfully.

The constitutional guarantees available to the appellant have been violated with

impunity.

3. Learned counsel appearing for the appellant has laid much stress

on the submission that once an FIR was registered against the appellant

wherein he was released on bail, on same set of allegations, the second FIR

could not have been registered against him and this being an important aspect,

has been ignored by the trial Court while rejecting the bail plea of the

appellant. Learned counsel further argues that while rejecting the bail plea of

the appellant, the trial Court has not taken into consideration the fact that from

the charge-sheet as well as the material placed on record by way of evidence

collected during the investigation, the accusations are not made out against the

appellant and that on same accusations and allegations, he had already been

Crl A(D) No.15/2021

granted bail in FIR No. RC.01/2020/NIA/JMU by the 3rd Additional Sessions

Judge, Special Judge, Jammu.

4. It is the contention of learned counsel appearing for the appellant

that the trial Court, while passing impugned order dated 20.07.2021 rejecting

the bail application of the appellant, has erred in law in not appreciating that

proviso to sub-Section 5 of Section 43-D of UAPA Act is attracted only when

the charge-sheet and the material placed in support thereof affords reason to

believe that the accusation of being involved in the commission of offence

punishable under Chapter IV and VI of the UAPA Act is, prima facie, true. It is

argued that in the present case, taking the allegations made in the final report

on their face value do not make out a case of commission of any offence falling

under Chapter IV and VI of the UAPA Act. It is, thus, submitted that the

rigours of Section 43-D of UAPA Act were not attracted and this aspect ought

to have been considered by the trial Court.

5 With a view to substantiate his argument that FIR No. 31/2020

registered in Police Station, CIK, Srinagar is founded on the same allegations

on the basis of which FIR No. 05/2020 was registered in the Police Station

Qazigund, the appellant has, in the memorandum of appeal, drawn a

comparative table to indicate that the allegations in the two FIRs aforesaid are

essentially and substantially the same. It is in the aforesaid backdrop, learned

counsel appearing for the appellant submits that registration of second FIR

i.e FIR No. 31/2020 in the Police Station, CIK Srinagar was only with a view

to defeat the order of bail granted by the Special Judge, NIA Court, Jammu in

FIR No. 05/2020. Learned counsel also draws the attention of this Court to the

statements of material witnesses recorded by the Investigating Officer which

are part of the challan pending trial before the trial Court. It is argued that none

Crl A(D) No.15/2021

of the witnesses, whose statements have been recorded by the police in FIR

No. 31/2020, anyway implicate the appellant with the commission of offences

alleged.

6 Per contra, Ms. Asifa Padroo, learned AAG appearing for the

respondents submits that FIR No. 31/2020 registered in the Police Station, CIK

Srinagar is not only against the appellant, in particular, but it involves a

number of political persons, terrorist outfits, secessionists and influential

persons, who, in order to achieve their aim of causing instability in the Union

Territory and eventually to cessation of Union Territory from Union of India,

have been indulging in terrorist activities. It is submitted that the FIR registered

by the police Station NIA, Jammu relates to a single transaction and therefore,

the argument of sameness of the allegations in both the FIRs is not tenable and,

therefore, the appellant cannot claim any benefit on the basis of such argument.

It is contended that since the trial Court has framed charges against the

appellant and, therefore, it is not open to him in this appeal to contend that the

ingredients of the offences alleged against him are missing and that no offence

as alleged is made out against him. Learned AAG argues that the offences

allegedly committed by the appellant fall in Chapter IV and VI of UAPA Act

and, therefore, the rigours of Section 43-D of UAPA Act are triggered. The

appellant will not be entitled to bail if the Court, on perusal of the case diary or

the final report made under Section 173 of Cr.PC, is of the opinion that there

are reasonable grounds for believing that the accusation against such person is,

prima facie, true. It is, thus, argued that given the fact that the trial Court has

already framed the charges, the argument that the accusation against the

appellant is, prima facie, not true is not available to the appellant.

Crl A(D) No.15/2021

7. Ms. Padroo thus contends that it may be true that against the

framing of charges or for seeking the quashment, the appellants has invoked

separate jurisdiction of this Court, but the fact remains that the trial Court, on

the basis of evidence and the material collected during the investigation, which

has culminated into submission of final report, has found, prima facie, that the

allegations against the appellant do constitute offences alleged i.e. offences

under Sections 13,17,18, 38, 39 and 40 of UAPA Act read with Sections 120-

B, 121, 121-A and 124-A IPC .

8. Having heard learned counsel for the parties and perused the

record, it is necessary to set out sub-Sections 5, 6 & 7 of Section 43-D of

UAPA Act below:

"(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing"

9. From reading of sub-Section (5) and (6) of Section 43-D of UAPA

Act, it is abundantly clear that a person accused of an offence punishable under

Crl A(D) No.15/2021

Chapters IV and VI of the UAPA Act shall not be granted bail unless following

two conditions are satisfied:-

(i) That the Public Prosecutor has been given an opportunity of being heard; and,

(ii) That the Court on perusal of the case diary or the report made under Section 173 of Cr.P.C is of the opinion that there are reasonable grounds for believing that the accusation against such person is, prima facie, not true.

10. The aforesaid two restrictions on grant of bail engrafted in

sub-Section (5) of UAPA Act are in addition to the restrictions under the Code

of Criminal Procedure or any other law for the time being in force on granting

of bail. The term "bail" essentially means release of an accused awaiting trial

or appeal subject to furnishing of security by the accused that he will submit

whenever demanded by the legal authority. The application for bail under the

provisions of Cr.P.C can be accepted or rejected on various grounds, such as,

nature of offence, the manner in which the offence is committed, severity of

punishment, risk of tempering with the evidence or witnesses, flight risk, etc.

The object behind the denial of bail is always preventive as opposed to

punitive. The bail in the bailable offences is as a matter of right and subject

only to furnishing of security as an assurance of the accused for his/ her

submission whenever demanded by legal authority, whereas in the matter of

non-bailable offences, it is the discretion of the Court, which, of course, is to be

exercised by the Court on well defined parameters of law. The most

fundamental distinction between the general bail provisions and the bail

provisions engrafted under UPA Act owes its origin to sub-Section (5) of

Section 43-D of UAPA Act which, in addition to the general restrictions on the

grant of bail imposed by the Cr.P.C, also provides that the person accused of an

offence punishable under Chapter IV and VI of UAPA Act shall not be

Crl A(D) No.15/2021

released, unless the Public Prosecutor has been given an opportunity of being

heard and if the Court is of the opinion that there are reasonable grounds for

believing that accusation against such person is prima facie true. It is, thus,

clear that the regular bail provisions under UAPA Act are distinct from similar

provisions made in other enactments. While most of the statutes require

recording of an opinion by the Court that there are reasonable grounds for

believing that the accused is not guilty of the alleged offence, UAPA Act

requires recording of an opinion by the Court deciding the bail that there are

grounds for believing that accusation against such person is prima facie true.

11 The expression "prima facie true" would mean that the

material/evidence collected by the Investigating Agency in reference to the

accusation against the concerned accused in the FIR must prevail until

contradicted, overcome or disapproved by other evidence and on the face of it,

shows the complicity of such accused in the commission of stated offence.

Thus, the degree of satisfaction is lighter when the Court has to opine that the

accused is "prima facie true" as compared to the opinion of accused being "not

guilty" of such offence as required under other special enactments. Therefore,

the approach to regular bail under UAPA Act for terrorist acts is higher than

the offences under IPC but comparatively less than what was required under

the repealed POTA and TADA.

12 The Hon‟ble Supreme Court in the case of NIA vs. Zahoor

Ahmad Shah Watali, (2019) 5 SCC while considering the parameters for

exercise of power under Section 43-D(5) of UAPA Act held thus:

23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of

Crl A(D) No.15/2021

this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collected by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act"

13 The Supreme Court in Zahoor Ahmed Shah Watali‟s case (supra)

has further held that the exercise to be undertaken by the Court at the time of

considering the bail plea of the accused is markedly different from discussing

merits or demerits of evidence. The elaborate examination or dissection of the

evidence is not required to be done at this stage. The Court is merely expected

to record a finding on the basis of broad probabilities regarding the

involvement of the accused in the commission of stated offence or otherwise.

Crl A(D) No.15/2021

14 Undoubtedly, grant of bail is a discretion, but this discretion is to

be used judiciously. Grant or denial of bail for commission of offences under

UAPA Act is a power of the Designated Court which is required to be

exercised on the well settled legal parameters laid down in the Cr.P.C for grant

of bail hedged by Section 43-D(5) of UAPA Act. UAPA Act, as is apparent

from its name, was initially envisaged to be a preventive legislation. It made

provisions more or less for preventing the unlawful activities. It was, however,

due to the compelling circumstances, UAPA Act became what it was never

meant to be. Without going much into the history of legislation, suffice it to say

that UAPA Act , which was initially enacted to provide for more effective legal

mechanism to prevent certain unlawful activities of individuals and association,

later on took within its sweep the robust legal frame work for dealing with

terrorist activities and the matters connected therewith.

15 Be that as it may, Section 43-D of UAPA Act embodies a

provision which can be viewed by some as an onslaught on personal liberties,

but there could be no denying the fact that the personal liberties have to be

balanced against the considerations of public interest. While considering the

bail applications under UAPA Act, particularly in relation to a person accused

of an offence punishable under Chapters IV and VI of UAPA Act, the Courts,

while keeping in mind the rigours of sub-Section (5) of Section 43-D of the

UAPA Act, should not forget that there is presumption of innocence in favour

of the accused till he is proved guilty. This presumption is available to a person

accused of any offence under UAPA Act except the offence under Section 15

of said Act. Section 43-E of UAPA Act provides for reverse burden in relation

to the offence under Section 15 of the said Act.

Crl A(D) No.15/2021

16 In the instant case, the appellant is not charged with Section 15 of

UAPA Act and, therefore, the reverse burden provision contained in Section

43-E of the UAPA Act is not attracted. When we view the instant case in the

light of settled legal position, we find that the trial Court has not exercised the

discretion in consonance with the settled legal principles on grant or refusal of

the bail. As is rightly contended by learned counsel appearing for the appellant

that the appellant is charged under Section 18 of UAPA Act read with Sections

120-B and 121-A IPC, but no material or evidence is brought on record by the

prosecution to sustain the charge.

17. Indisputably, in the final report presented in reference to FIR

No. 31/2020, the appellant is the sole accused. Neither the names of the

conspirator are vividly given, nor any evidence of prior concert is indicated

anywhere in the final report. Regarding the sedition charges under Section

124-A IPC, the issue is governed by the recent judgment of the Supreme Court

in the case of S.G. Vombatkere vs. Union of India, 2022 LiveLaw (SC) 470,

whereby the Supreme Court has directed that all the pending trials, appeals and

proceedings with respect to the charge framed under Section 124-A of IPC

shall be kept in abeyance. Section 38 of UAPA Act relates to membership of a

terrorist organization. Section 39 of the said Act is an offence relating to

support given to a terrorist organization and Section 40 of the Act is an offence

of raising fund for a terrorist organization.

18. From reading of the final report, it is abundantly clear that the

prosecution is relying upon the evidence collected during the investigation

which only points to the appellant having been seen in the company of one

Yousaf Gadoora, an alleged over ground worker of a proscribed terrorist

organization. Prima facie, we could not find any allegation in the final report

Crl A(D) No.15/2021

which shows the association of the appellant with any terrorist organization,

that too, with an intention to further its activities. Rather, the appellant is

shown to be a member of a recognized political party i.e. Peoples Democratic

Party which has remained in power in the erstwhile State of Jammu and

Kashmir. There is nothing believable on record to demonstrate that the

appellant has supported any terrorist organization with an intention to further

activities of such organization. Simply because the appellant has been seen on

some occasions with a person with doubtful credentials cannot itself lead to the

conclusion that the appellant is either a member of a terrorist organization or is

lending support to such organization with an intention to further its activities.

19. The Supreme Court in the case of Sudesh Kedia vs. Union of

India, (2021) 4 SCC 704 while considering a criminal appeal filed by the

accused Sudesh Kedia which had arisen out of rejection of bail under UAPA

Act by the Special Judge NIA, Ranchi and dismissal of the appeal by the High

Court, in paragraph 13.1 and 13.2 held thus:

"13.1.A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the appellant is that he paid levy/extortion amount to the terrorist organization. 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 charge-sheet 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".

"13.2. Another factor taken into account by the Special Court and the High Court relates to the allegation of the appellant

Crl A(D) No.15/2021

meeting the members of the terror organization. It has been held by the High Court that the appellant has been in constant touch with the other accused. The appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the appellant met the members of the organization".

20 It is, thus, clear that merely the accused having been seen in the

company of a member of a terrorist organization without doing anything more

is not enough to attract the applicability of UAPA Act. Similarly, insofar as

Section 17 of UAPA Act is concerned, it provides punishment for raising funds

for the terrorist act. From reading of the final report, one would find that this

charge owes its origin to the allegation of attempt made by the appellant to

arrange five AK-47 rifles on payment of Rs.1 lac for each. The allegation

further states that the aforesaid deal though contemplated, did not materialize

and was subsequently abandoned. The allegation has cropped up from the

disclosure of one Naveed Babu stating that accused had paid Rs.10 lacs to Irfan

Shafi forming subject matter of RC No.01/2020/NIA/JMU.

21. It may be noted that with regard to the aforesaid allegation,

the Special Judge, NIA Jammu has already admitted the appellant to bail. The

allegation with regard to the plan made by the appellant to procure five AK- 47

rifles may amount to making preparation for committing the offence, but

cannot be tantamount to commission of offence under Section 17 of UAPA

Act. So far as Section 13 of UAPA is concerned which the appellant is also

charged with, it does not fall in Chapters IV or VI of UAPA Act and, therefore,

saved from the rigours of section 43-D of UAPA Act in the matter of grant of

bail to the person accused of such offence.

Crl A(D) No.15/2021

22. Viewed from any angle, the evidence assembled by the

Investigating Agency and relied upon by the prosecution to prosecute the

appellant even if accepted as it is without any denial or rebuttal by the

appellant, is not such on the basis of which the Court can formulate an opinion

that the allegations proved during the investigation are prima facie true. The

evidence as is gathered by the prosecution is too sketchy to be believed prima

facie true, that too, with a view to deny bail to the appellant. The gravamen of

allegation against the appellant is that he was hobnobbing with a member of a

terrorist organization with a view to further his political aspirations. The

appellant is shown to be a member of mainstream political party i.e Peoples

Democratic Party which has remained in power in the erstwhile State of

Jammu and Kashmir. On the close scrutiny of the material placed on record in

the shape of statements of various witnesses, the prosecution appears to have

prima facie established that the appellant was meeting with and was seen in the

company of one Yousaf Gadoora, an over-ground worker, a member of

terrorist organization. Whether this meeting was aimed at supporting the

terrorist organization by providing funds and other logistics is not substantiated

by any of the statements of the witnesses recorded during investigation. There

is no evidence on record which, prima facie, shows that the association of the

appellant with the terrorist Yousaf Gadoora was with an intention to further the

activities of terrorist organization.

23 Though, it is vehemently argued by learned counsel for the

appellant that the second FIR i.e FIR No. 31/2020 is on the selfsame

allegations on which the earlier FIR i.e FIR No. 05/2020 stands registered in

the Police Station Qazigund, yet we have deliberately refrained from

commenting on the aforesaid issue as the same is already subject matter of

Crl A(D) No.15/2021

adjudication in separate proceedings launched by the appellant to challenge the

FIR No. 31/2020 and the final report filed before the trial Court in pursuant

thereto. Suffice it to say that in view of the facts and circumstances we have

narrated above, we are of the opinion that the appellant has made out a case for

grant of bail. The Trial Court has not appreciated the matter in its true

perspective and has dismissed the bail application of the appellant being

influenced by the fact that the charges for the offences alleged in FIR

No. 31/2020 stand framed and, therefore, it is not open to the appellant to

contend that the allegations made in the FIR against the appellant do not make

out, prima facie, the offences under Sections 13,17,18, 38, 39 & 40 of UAPA

Act read with Sections 120-B, 121, 121-A & 124-A IPC.

24 It may be noted that the appellant was initially arrested in FIR

No. 05/2020 on 25.11.2020. and was released on bail by the Special Judge NIA

Jammu on 09.01.2021. Before the applicant could be released on bail as

directed by the Special Judge vide order dated 09.01.2021, he, while in custody

was arrested on 10.01.2021 in connection with FIR No. 31/2020. The appellant

is, thus, in incarceration since 25.11.2020. The investigation in the case is

complete, the final report filed and the charges framed by the trial Court. As a

matter of fact, it is stated by learned counsel for the parties that even a couple

of witnesses too has been examined.

25 Keeping in view the totality of circumstances and the discussion

made hereinabove, we are of the considered view that this appeal deserves to

be allowed. Ordered accordingly. Consequently, order dated 20.07.2021

passed by the Special Judge, NIA Srinagar is set aside and the appellant is

admitted to bail in connection with FIR No.31/2020 registered in Police

Crl A(D) No.15/2021

Station, CIK Srinagar. The Superintendent, Central Jail, Srinagar, is directed to

release the appellant, provided he is not involved in any other case, after the

appellant furnishes before him a personal bond of rupees one lac with a surety

of the like amount. This order shall be subject to the following conditions:

(i) That the appellant will make himself available before the Investigating Officer of the case, as and when required to do so;

(ii) That he will not leave the UT of Jammu and Kashmir without prior permission of the learned trial Court;

(iii) That he shall surrender his passport, if any, before Investigation Officer against proper receipt; and,

(iv) That he will appear before the learned trial Court on each and every hearing of the case.

26 Before parting, we make it clear that the observations made in this

order are restricted to the disposal of this appeal and shall not be construed as

an expression of opinion on the merits of the case.

Registry to forthwith send a copy of this judgment to the Superintendent,

Central Jail, Srinagar, for compliance.

                (VINOD CHATTERJI KOUL)                   (SANJEEV KUMAR)
                                JUDGE                              JUDGE
Srinagar
25.05.2022
Sanjeev



                             Whether order is speaking: Yes
                             Whether order is reportable: Yes