Jail, not bail, is the rule under UAPA: Supreme Court 

A division Bench of the Supreme Court has denied bail to Gurwinder Singh arrested in connection with terror funding allegations on the grounds of the jurisprudence of Watali judgment of the court, ignoring its Arun and Vernon bail judgment of last year.

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RECENTLY, the Supreme Court denied bail to Gurwinder Singh for alleged crimes under the Unlawful Activities (Prevention) Act, (UAPA) 1967.

Singh is accused of receiving funds illegally from the proscribed Sikhs for Justice organisation for furthering secessionist agenda for a separate State— Khalistan— for Sikhs.

Justices M.M. Sundresh and Aravind Kumar interpreted Section 43D(5) of the UAPA and held: "The 'exercise' of the general power to grant bail under the UAPA Act is severely restrictive in scope. The form of the words used in the proviso to Section 43D (5)— 'shall not be released' in contrast with the form of the words as found in Section 437(1) [Code of Criminal Procedure] CrPC— 'may be released'— suggests the intention of the legislature to make bail the exception and jail the rule."

Section 43D(5) sets an embargo against granting bail to an accused if a prima facie case is made against him on the mere perusal of the diary and final report prepared by the police, without delving into its evidentiary value.

Brief facts

As per the prosecution, on October 19, 2018, Punjab police received secret information that two persons were hanging cloth banners at the Pillars Kot Mit Singh flyover, in Amritsar.

Allegedly, the slogans "Khalistan Jindabad" and "Khalistan Referendum 2020" were written on the banners.

The police claims that on the basis of this information, it apprehended Sukhraj Singh and Malkeet Singh on the spot and a first information report (FIR) against them was registered under Sections 124A (sedition), 153A (promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) and 153B (punishment for knowingly carrying arms in any procession or organising, or holding or taking part in any mass drill or mass training with arms), read with 120B (punishment for criminal conspiracy) of the Indian Penal Code, (IPC) 1860.

The police further claims that during investigation, the entire module of Sikhs for Justice was busted. Sikhs for Justice is a United States-based group founded in 2007. It calls for an independent nation for Sikhs called Khalistan.

The police arrested Gurwinder based on the disclosure statement of co-accused Bikramjit Singh. 

The police allege that on August 8, 2018, Gurwinder, along with Bikramjit and a third co-accused Harpeet Singh, went to Srinagar, J&K in a car where they planned to purchase a pistol through one Sandeep Singh.

However, when they could not purchase a pistol, Sandeep Singh offered them the explosive substance RDX, the police claim. They declined and Gurwinder came back to his village in Punjab, the police investigation notes.

In total, the police framed charges against eleven accused persons in connection with the proscribed terrorist organisation.

Due to the severity of the charges, the case was transferred to the National Investigation Agency (NIA) as per the directions of the Union home ministry on April 4, 2020.

The NIA claims that its investigation revealed that the accused persons had received funds through illegal means such as hawala transactions from members of the Sikhs for Justice.

Further, it is alleged that the funds were sent for furthering separatist ideology for the secession of Punjab to a separate State for Sikhs and to carry out terrorist activities including the attempts to procure weapons to spread terror in India.

The NIA further claims that its investigation revealed that one Javed Khan, an Inter-Services Intelligence (ISI) handler, was behind the operations of the module busted by the Punjab police and the NIA.

On December 9, 2021, an NIA court framed charges against Gurwinder under Sections 124A , 153A, 153B read with 120B (punishment for criminal conspiracy) of the Indian Penal Code, 1860, along with Sections 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy, etc), and 19 (punishment for organising of terrorist camps) of the Unlawful Activities (Prevention) Act, 1967 and Sections 25 (punishment for certain offences) and 54 (making away with equipment) of the Arms Act, 1959.

On December 16, 2021, an NIA court rejected the bail application of Gurwinder. This decision was upheld by the High Court of Punjab and Haryana on April 24, 2023. It was challenged before the Supreme Court through a special leave petition.

The counsel for the accused, senior advocate Colin Gonsalves, argued that the bail application was rejected by the high court and the NIA court by merely relying on the disclosure statement of Bikramjit.

He stated that the disclosure statement cannot be used to implicate the accused. Gonsalves submitted that the accused person's mobile phone had not been scrutinised.

He stated that there is an absence of incriminating conversation in the communication data records, which would support a case for granting bail.

Gonsalves argued that eight out of the nine protected witnesses had not named the accused person.

Moreover, the fourth supplementary chargesheet, which tries to establish a funding link with the ISI, excludes the accused from relevant documentation.

Further, he told the court that the accused person has been in jail for the last five years under the UAPA and this is contrary to the decision in Union of India versus KA Najeeb (2021).

The Supreme Court in K.A. Najeeb held that constitutional courts have the ability to grant bail when violation of fundamental rights has taken place. The court also held that prolonged incarceration is a violation of personal liberty protection under Article 21 (protection of life and personal liberty) of the Constitution.

The Additional Solicitor General, S.V. Raju, opposed the bail on the ground that sufficient evidence is on record to prove the incriminating role of the accused.

He stated that the allegations levelled against the accused person are grave in nature and pertain to crimes that are attributable to the members of the terrorist organisation operating at the behest of Gurpatwant Singh Pannun, a proscribed terrorist.

Lastly, it was argued that the bail embargo under Section 43D(5) of the UAPA does not allow for the accused to be given bail.

What did the Supreme Court hold?

The court stated that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAPA.

It interpreted Section 43D(5) and held the conventional idea of bail jurisprudence which considers 'bail is the rule, jail is the exception' does not find any place when dealing with bail applications under the UAPA.

The court stated that under Section 43D(5), it has to prima facie examine if there is a justification to reject bail. This justification must be searched from the case diary and the final report submitted before the special court.

Based on this, it held: "The legislature has prescribed a low, 'prima facie' standard, as a measure of the degree of satisfaction, to be recorded by the court when scrutinising the justifications [materials on record]."

It added that this standard is in contrast with the standard of 'strong suspicion', which is used by courts while hearing applications for 'discharge'.

Here, it referred to the Supreme Court's judgment in the National Investigation Agency versus Zahoor Ali Watali (2019).

In Watali, the court said: "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."

On the basis of this, the court prescribed a twin-prong test for rejecting bail under the UAPA in the present case.

It stated: "Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or case diary, the court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true."

It relied on Watali's judgment, where the court defined prima facie true as materials that must show the complicity of the accused. That is, the evidence must be good and sufficient to establish a given fact or chain of facts constituting the commission of an offence.

Further, Watali states that once charges were framed, the court could assume a very strong suspicion based on the material before it. It cannot go into the merits of the documents relied by the prosecution.

As per Watali, while granting bail, the court need not go into the merits of the evidence while determining the prima facie satisfaction because the findings are to be recorded based on broad probabilities.

In the present case, the court added that if this test for rejecting the bail is not satisfied, then it will have to decide the bail application per the 'tripod test' (flight risk, influencing witnesses and tampering with evidence) which are grounds for rejecting regular bail under Section 439 (special powers of the high court and court of session regarding bail) of the CrPC.

It stated that Section 43D(6) clarifies that the additional restrictions under the CrPC are in addition to the grounds mentioned under Section 43D(5) of the UAPA for rejecting bail.

It added: "The question of entering the 'second test' of the inquiry will not arise if the 'first test' is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the 'tripod test."

Based on this, it proceeded to determine whether the additional limitations are attracted to the present case if the first test is not satisfied.

The court held that the mere fact that the accused has not received any funds or nothing incriminating was recovered from his mobile phone does not absolve him because the present case reveals the involvement of a terrorist gang which includes different members recruited for multiple roles.

It held that the material on record prima facie indicates the complicity of the accused as a part of the conspiracy.

Further, the court did not apply Najeeb's reasoning in this case. It reasoned that in Najeeb, all co-accused had undergone trial and were sentenced to imprisonment for not exceeding eight years. Whereas, Najeeb had absconded and, therefore, his trial was severed from the list and the NIA had a long list of witnesses that were left to be examined.

Therefore, the court was of the view of the unlikelihood of completion of the trial in the near future.

Based on this, the court in this case concluded: "Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail."

Click here to read the order.