Jammu & Kashmir and Ladakh High Court: While considering the instant appeal challenging the impugned order rejecting the appellant’s bail application for offences inter alia, under Sections 13(1)B, 18, 20, 23, 40 of the Unlawful Activities (Prevention) Act (UAPA Act), the Division Bench of Atul Sreedharan* and Mohammad Yousuf Wani, JJ., took strict note of the “usual stock of copy paste UAPA arguments” put forth by the respondent. The Court pointed out that to be influenced by the often forceful submission of internal security of the State, and to reject a bail application where the State has utterly failed to disclose any material against the accused which could raise a prima facie view of the involvement of the accused as charged by the State, is a sure shot recipe for miscarriage of justice.
Invoking noted French thinker Voltaire, who had famously said, “Beware of the words “internal security,” for they are the eternal cry of the oppressor“, the Court delved into its experiences of dealing with UAPA cases, noted that, usually the main thrust of the prosecution/State’s arguments is to try to psychologically overawe the Court by bringing in elements of National Security, Nationalism etc.
Background: In April 2013, FIR was registered against the appellant, alleging that the appellant along with other co-accused persons used to meet certain under trials when they were brought to court for hearings and used collect money from them and influence to take to the path of terrorism and wage a war against the Union of India.
Consequently, the appellant and his associates were arrested. While the appellant was in custody as an undertrial, the respondent placed the appellant under preventive detention under the Public Safety Act, which was later quashed in October 2013. After the order of detention was quashed, the appellant was released by the Jammu and Kashmir Police on his personal bond, notwithstanding the fact that he was still under arrest in the FIR case for offences inter alia under the UAPA.
After the release of the appellant in 2013, he remained a free person till 22-10-2022, when he was arrested once again when the charge sheet was filed before the Special Court. The investigation of the case took nine years for its conclusion.
The Special Court framed the charges against the appellant and on 12-09-2023, the appellant’s bail application was rejected via the impugned order.
The counsels for the respondent while opposing the instant appeal, argued that charge has been framed by the trial court, and the extent of appreciating the evidence at the stage of framing charge and grant of bail under the UAPA is the same, as, that of prima facie evidence, hence bail cannot be granted by the High court as the appellant has not challenged the order framing charge.
Along with the afore-said contention, the respondent counsels argued along the lines of national interest in not granting bail to the appellant; Nationalism, Allegiance to Pakistan, Radical Islam; Secession of Jammu and Kashmir from India etc.
Court’s Assessment: Perusing the case and the “usual stock of arguments” presented by the respondents, the Court pointed out that ample opportunity was given the respondents to place the statement of a single independent witness which implicates the appellant or such material evidence which would give rise to a prima facie view of the appellant’s involvement through circumstantial evidence. However, no such material was placed before the Court.
Taking stern note of the “copy-paste UAPA arguments”, the Court pointed out their experiences which have shown time and again that the prosecution is more focused on the arguments of national integrity and security rather than the specific material, which appears, against a person accused under UAPA.
The Court acknowledged that issues of national security are relevant elements in a case under the UAPA, but it should be supplemental submissions in addition to the material raising a prima facie view that the accused may have committed the offence.
The Court noted that, “Question of internal security may be real, or a bogie which the State attempts to compel the Court to believe as real, by impressing upon the Court and thereby try to get the Court to dismiss the application for bail by contending that the imperatives of internal security demand that the accused remain incarcerated even in the absence of judicially cognizable material against the accused only because there is a suspicion that the accused may be involved in the offence as charged”. The Court cautioned that,
“An overbearing subliminal belief in the primacy of internal security of the State in the sub conscious mind of the Judge, could result in the inadvertent oppressive application of a draconian law resulting in the denial of liberty, unsupported by judicially cognizable material”.
Perusing the facts and procedures adopted in the instant case, the Court was not impressed with the argument raised by the respondent vis-a-vis the High Court not having the power to grant bail under UAPA where the restriction of the proviso to S. 43D(5) of the UAPA applies and the Trial Court has framed charge against the accused. The Court pointed out that the legislative intent at the stage of framing charge is different from that of deciding an application for grant of bail.
The Court stated that there is no limitation on the High Court while examining an order of the Trial Court rejecting bail under the UAPA, and where the Trial Court has also framed charge against the accused, inter alia for offences which restrict the grant of bail on account of the operation of the proviso to S.43D(5) of the UAPA. The High Court, as a Court of appeal, suffers no fetters while examining the correctness of the order passed by the Trial Court. The plenary jurisdiction of the High Court under Section 482 CrPC and Article 226 of the Constitution which inheres in the High Court may be invoked as per the facts and circumstances of a case, ex debito justitiae.
The Court further pointed out that the respondents could not answer the question as to why the appellant was released for 9 years by the police when the appellant could have only been released pursuant to an order by a court of competent jurisdiction, as he was an under trial. Besides, if the appellant wanted to influence witnesses, the best time to do so was when the case was under investigation for nine years and he was a free man.
It was noted that there was no allegation by the counsel for the Union Territory of Jammu and Kashmir that during the period he was free, the appellant had tried to win over the witnesses. It was noted that there should be compelling reasons for the appellant’s re-arrest after nine years. However, the Trial Court did not give any finding on such compelling circumstances which mandate the arrest of the appellant even though he was free man for nine years, only because the charge sheet was being filed.
The Court noted that the only evidence against the appellant was the statement by the co-accused, which is worthless because the co-accused had not been made an approver, therefore the co-accused’s statement cannot be termed as prima facie evidence against the appellant.
With the afore-stated assessment, the Court pointed out that no prima facie case has been made out by the Union Territory to warrant further incarceration of the appellant as an under trial. The appellant was thus granted bail.
[Khursheed Ahmad Lone v. UT of J&K, 2024 SCC OnLine J&K 415, decided on 19-04-2024]
*Order by Justice Atul Sreedharan
Advocates who appeared in this case :
Sajad Ahmad Geelani, Advocate for appellant
A.R. Malik, Sr. AAG, with Muneeb Wani, Dy. AG, and Mohammad Younis, AC for the respondents
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Where such people sit as judge, who don’t care for security of the nation, only prayer can be made before God. This is result of collegium