Keeping in view long incarceration already undergone, SC releases on bail UAPA-accused facing trial

THE Supreme Court, on Monday, set free on bail a man accused under the stringent Unlawful Activities (Prevention) Act, 1967 [UAPA] on the ground that he had already undergone eight years of incarceration as an undertrial.

A division bench of Justices K.M. Joseph and Hrishikesh Roy passed the order to this effect after observing that the prosecution sought to examine as many as 109 witnesses, of which only six witnesses had been fully examined so far. The bench had also sought a report on December 3, 2021, from the Additional District and Sessions Judge, Jodhpur City, on the status of the trial. In his report, the Judge had indicated that there is a probability of the trial taking at least two to three more years to be completed.

Jahir Hak, the appellant, was before the Supreme Court challenging the Rajasthan High Court’s order denying him bail. He was arrested on May 8, 2014 in connection with an FIR No. 113 of 2014 of Police Station Pratapnagar, Jodhpur for offences punishable under Sections 10 (penalty for being member of an unlawful association), 13 (penalty for dealing with funds of an unlawful association), 15 (terrorist act), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy), 18A (punishment for organising of terrorist camps), 18B (punishment for recruiting of any person or persons for terrorist act), 19 (punishment for harbouring), 20 (punishment for being member of terrorist gang or organisation), 23 (enhanced penalties) and 38 (offence relating to membership of a terrorist organisation) of the UAPA. Hak was charge-sheeted on September 17, 2014, and charges were framed against him on January 29, 2018. He is charged with offences, some of which are punishable with a minimum punishment of ten years, and the sentence may extend to imprisonment for life.

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The allegations against Hak are that he was found to be in touch with one of the co-accused and that there is evidence to show that he had conversations with the co-accused on 31 occasions. According to the prosecution, the co-accused is the head of a sleeper cell module of Indian Mujahideen, an Islamis terrorist group designated as a terrorist organization under the UAPA.

Granting bail to Hak, the Supreme Court held: “The condition in Section 43D(5) of the Act of 1967 has been understood to be less stringent than the provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985″.

It added that in view of the nature of the case against the appellant, the evidence which has already unfolded, and above all, the long period of incarceration that the appellant has already undergone, the time has arrived when the appellant be enlarged on bail.

It referred to a ruling delivered last year by a three-judge bench of the Supreme Court in the K.A. Najeeb case, in which it was held that in the context of the right to a speedy trial that the rigours of stringent provisions of bail as found in section 43D(5) of the UAPA would “meltdown” where there was no likelihood of the trial being completed in a reasonable time, and the period of incarceration already undergone exceeded a substantial part of the prescribed sentence.

Section 43D(5) makes the grant of bail nearly impossible if on a perusal of the case diary or the report made under Section 173 of the Criminal Procedure Code(CrPC), the court is of the opinion that there are reasonable grounds for believing that the allegation against accused is prima facie true.

Appearing for Hak, advocate-on-record Irshad Hanif, assisted by advocate Rizwan Ahmed, told the court that a witness named Devendra Patel had been declared hostile. Regarding the other two witnesses examined on behalf of the prosecution, it was contended by the advocates for the petitioner that there was nothing in the deposition of the said witnesses which implicated the appellant and the same was not disputed by the state government. However, it was pointed out by the State that with the nature of the case set up against the appellant, there would be further evidence that may unfold.

The petitioner’s counsel also pointed out to the bench that the co-accused had been released on bail on September 30, 2020 by the Supreme Court. The bench, however, observed that it would keep in mind the submission of the State that the role attributed to the said accused is different.

Click here to view the Court order.

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