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TMI Blog2021 (6) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... prehension that the appellant will tamper with evidence or intimidate witnesses. The gravity of the offence alleged would beget the length of sentence, as may be awarded upon conclusion of trial; but an assertion as to the gravity of the offence cannot thwart the grant of bail - apart from militating against the presumption of innocence, pre-trial detention would lead to needless psychological and physical deprivations; and above all, would seriously hamper the appellant from participating in and contributing to the preparation of his defence at the trial. The three cardinal concerns against grant of bail pending trial, namely of evidence tampering, witness intimidation and abscondence, can be addressed by imposition of requisite conditions on grant of bail. The appellant shall furnish a personal bond in the sum of 50,000/- with 02 local sureties in the like amount, to the satisfaction of the learned Trial Court - the bail is granted subject to conditions imposed. Application allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Charge-sheet dated 16.09.2020 has been filed in the subject FIR inter alia against the appellant ('subject charge-sheet', for short); and though supplementary charge-sheets dated 22.11.2020 and 01.03.2021 have also been filed in the subject FIR, the said other charge-sheets do not relate to the appellant and are therefore not relevant for purposes of the present proceedings. Vide order dated 17.09.2020 the learned Special Court has taken cognizance of the offences alleged in the subject charge-sheet except offences under sections 124A/153A/109/120B of the IPC, since requisite sanction for prosecution from the State Government was awaited for those offences as of the date of the impugned order. Charges have not yet been framed against the appellant. 4. In a Criminal Miscellaneous Petition bearing CRL. M.C. No. 2119/2020 filed by the respondent/State against order of the trial court directing the State to provide a hardcopy of the charge-sheet to all accused persons, further proceedings in the trial before the learned Special Court were stayed by a learned Single Judge of this court vide order dated 10.11.2020; which stay order has however since been vacated by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he had spoken to other co-accused persons, who had told the appellant that preparations for riots "were ready". Furthermore, the appellant had also said at that meeting that other co-accused persons had told him that they were prepared and ready for riots "if anything happens"; k) that as per plan, on 23.02.2020 messages relating to urgent mobilisation were posted on the JCC WhatsApp group, after which riots occurred in Delhi; l) that active members of the JCC were responsible for the riots that occurred in Delhi, as per a well designed conspiracy; m) that the appellant, alongwith other co-accused persons, was an active radical member of the JCC; n) that the motive of the JCC was to create riots, which led to the death of several people in Delhi; o) that from the evidence collected so far, there remains no doubt that the appellant played a key part in the conspiracy, whereby he organised mobilisation of a mob of a particular community, thereby flaring-up communal passion and instigated them to commit violence; while simultaneously other co-conspirators were "actually collecting and organising the means and material" through which the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as follows: "An Act to provide for the more effective prevention of certain unlawful activities of individuals and associations and for matters connected therewith". 10. In 2004, the Preamble to the UAPA was amended and 'terrorist activities' were brought within its fold by amending the Preamble and long-title with retrospective effect from 21.09.2004. The amended Preamble reads as under: "An Act to provide for the more effective prevention of certain unlawful activities of individuals and associations, text should be under line also and for matters connected therewith". (emphasis supplied) 11. Subsequently, in order to give effect to certain resolutions passed by the Security Council of the United Nations and to give effect to the Prevention and Suppression of the Terrorism (Implementation of Security Council Resolution) Order 2007 and to make special provision for prevention of, and for coping with, terrorist activities and for matters connected therewith or incidental thereto, the UAPA was further amended in 2008 inter alia by substituting the then existing section 15 relating to 'terrorist act' under the UAPA. 12. At this point it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;, since it must be presumed that when the Parliament enacted the UAPA, it was acting within the scope of its powers under the constitutional scheme and was therefore enacting a legislation relating to a matter that was within its competence under Article 246 and the Seventh Schedule of the Constitution. 14. Post the amendments made from time-to-time, as of date, the provisions of the UAPA that are relevant for the purposes of the present matter are extracted below: "2. Definitions.--(1) In this Act, unless the context otherwise requires,-- ..... (k) "terrorist act" has the meaning assigned to it in Section 15, and the expressions "terrorism" and "terrorist" shall be construed accordingly; (l) "terrorist gang" means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act; (m) "terrorist organisation" means an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed; ..... (o) "unlawful activity", in relation to an individual or association, means any actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act; or (sic) commits a terrorist act. Explanation.--For the purpose of this sub-section,-- (a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary; (b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule. (2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule. "16. Punishment for terrorist act.--(1) Whoever commits a terrorist act shall,-- (a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine; (b) in any other case, be punishable with imprisonment for a term which shall not be less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." (emphasis supplied) Construction of bail provisions under similar legislations 15. Before we examine the provision relating to bail under UAPA, it would benefit if we briefly examine the bail provisions under other similar statutes. Grant of bail has been restricted and stringent conditions have been engrafted for admitting accused persons on bail under several other legislations relating to serious offences. It would be useful at this point to allude to the construction placed by the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogic sounds now like the jingling of a child's toy." (See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532] "9. It is often said that 'an attempt to give a specific meaning to the word "reasonable" is trying to count what is not number and measure what is not space'. The author of Words and Phrases (Permanent Edn.) has quoted from Nice & Schreiber, In re [123 F 987 at p. 988] to give a plausible meaning for the said word. He says 'the expression "reasonable" is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'. It is not meant to be expedient or convenient but certainly something more than that." [Ed.: As observed in Rena Drego v. Lalchand Soni, (1998) 3 SCC 341, p. 346, para 9.] "10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Solicitor General attempts to meet the above arguments stating that there is no question of unconstitutionality of the provision and in fact, the conditions imposed under clause (b) of sub-section (8) is in consonance with the requirements prescribed under clauses (i) and (ii) of sub-section (1) of Section 437 and clause (b) of sub-section (3) of that section. In any event, according to him, the conduct of an accused seeking bail in the context of his background and the nature of crime committed are to be evaluated before the concession of bail can be granted and that the evaluation is fundamentally from the point of view of his likelihood of either tampering with the evidence or unleashing a threat to the society during the period when he may be allowed to be on bail. He also quotes another observation of Krishna Iyer, J. in Gudikanti [(1978) 1 SCC 240] in support of his submission which reads: (SCC p. 245, para 12) "All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA has been explained by the Hon'ble Supreme Court in State of T.N. vs. R.R. Gopal alias Nakkeeran Gopal (2003) 12 SCC 237, as follows: "12. It is to be seen that at the stage of granting bail, the court does not decide the merits of the matter. Of course, a prima facie view has to be formed in the court in order to satisfy itself that there are grounds for believing that the accused is not guilty of committing the offence he is charged with. However, such a prima facie view must be based on very cogent material. The High Court has relied on alleged discrepancies of the description of the weapon. One must keep in mind that the articles recovered have been sent to the court and are in custody of the court. It must also be noted that the first of the documents, relied upon by the High Court was in Tamil language. The other documents are in English. Some police officer has translated it from Tamil to English. If some police officer wrongly translates the type of weapon one cannot conclude with any reasonable certainty that there was no recovery. It is to be seen that under Section 4 mere possession not just of an arm but also of an ammunition, is sufficient. Ammunition has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during such hearing the Public Prosecutor opposes the bail application of the accused then, it would have to be shown to the Court and the Court would have to be satisfied that there exists some material or ground suggesting that the accused is not guilty of committing such offence. Plainly speaking, it would be for the defence to plead and prove to the satisfaction of the Court a prima facie case for acquittal. (emphasis supplied) Bail under Unlawful Activities (Prevention) Act 1967 ('UAPA') 23. Opining specifically on section 43D(5) of the UAPA, in its seminal and recent verdict in National Investigation Agency vs. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, ('Watali', for short) the Hon'ble Supreme Court has said this: "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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the stated offence or otherwise. "25. From the analysis of the impugned judgment [Zahoor Ahmad Shah Watali v. NIA], it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 CrPC, on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge-sheet already filed against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of admissibility of the document/evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is. * * * * * "30. In our opinion, the High Court, having noticed that the Designated Court had not looked at the stated statements presented in a sealed cover, coupled with the fact that the application under Section 44 filed by the investigating agency was pending before the Designated Court, and before finally answering the prayer for grant of bail, should have directed the Designated Court to first decide the said application and if allowed, consider the redacted statements, to form its opinion as to whether there are reasonable grounds for believing that the accusation made against the respondent is prima facie true or otherwise. For, in terms of Section 43-D, it is the bounden duty of the Court to peruse the case diary and/or the report made under Section 173 of the Code and all other relevant material/evidence produced by the investigating agency, for recording its opinion. * * * * * "47. The fact that there is a high burden on the accused in terms of the special provisions contained in Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 06.03.2020 registered at P.S.: Crime Branch was initially registered under sections 147/148/149/120B IPC, which are all bailable offences. Subsequently however, on 19.04.2020 offences under the UAPA were added to the subject FIR; investigation in which is also now complete and subject charge-sheet dated 16.09.2020 has now been filed naming 15 accused persons in such charge-sheet. (ii) It is submitted that on a perusal of the subject charge-sheet alongwith other material on which the prosecution relies, including statements of witnesses (some of which are protected witnesses) recorded under sections 161 and 164 Cr.P.C., will show that even prima facie no offence is made-out against the appellant that would warrant his continued custody; (iii) It is further submitted that in any event, no offence under section 15 of the UAPA, which defines "Terrorist Act" nor any offence under section 18 which defines "Punishment for Conspiracy, etc." or any offence engrafted in Chapter IV and/or Chapter VI is made-out against the appellant. Consequently, the stringent provisions contained in section 43D(5) of the UAPA against grant of bail are not attracted at all; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, extent and reach justifying the invocation of the provisions under which the appellant is accused. Moreover, it is submitted that the "context and circumstances in which the acts were committed would clearly cause reactions affecting not merely specific individuals but disorders of most extreme gravity". (iii) It has been argued that a communally surcharged environment was deliberately created by the conspirators, sharply dividing the religious communities hardening cleavages and eliminating any possibility of consensus, apart from disavowing all belief in the efficacy and worth of the existing system and portraying the political establishment as inimical to a religious community. Having roused sentiments and having created a sense of insecurity, the "likelihood that any act or disorder would have the potential of tumultuous consequences could not only be foreseen but it is apparent that the conspirators desired these consequences"; and the intent to disrupt the unity and strike terror is obvious. Not merely physical and mental damage but prolonged psychological effect was produced affecting the society as a whole, disturbing its even tempo and tranquility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence is not required and 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 the stated offence or otherwise. It is pointed-out that relying on Watali (supra), this court in Ghulam Mohd. Bhat vs. National Investigating Agency, has said that the determination to be made by this court at the stage of dealing with a bail application is within a very narrow compass and what the court is required to examine is the issue whether there are reasonable grounds for believing that the accusations made against the appellant are "prima facie true", which means the test to justify rejection of bail is whether on the evidence available it is possible to arrive at the conclusion that the case against the appellant is prima facie true. (viii) The State says therefore, that the case against the appellant is one of conspiracy to commit a crime, which is itself punishable as a substantive offence and every individual offence committed pursuant to conspiracy is a separate and distinct offence; and though all conspirators may not be liable for an individual offence, they are all guilty of the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sheet extracted as Screenshot 3 in Annexure - B. (xiv) The State alleges thereby that "a radical approach animated by extremist intent giving a different orientation to words of ordinary connotation like chakkajam is self-evident". To support this, the State has relied upon page No. 2052 of the subject charge-sheet as well as the statement of a protected witness named Bond, which portions are extracted as Screenshot 4 and 5 in Annexure - B. (xv) The CAA only provided an excuse for the agitation, the real motivation of which was to denounce the existing system and create extreme disenchantment with it. Reliance has been placed by the State on the portion at page 2048 of the charge-sheet, which has been extracted as Screenshot 6 in Annexure -B. (xvi) It is argued that the subject charge-sheet further shows that the actions of the conspirators was premeditated, which is apparent from the meetings of 16.12.2019 and 17.12.2019, which followed the protest at the Parliament and at Jamia University on 13.12.2019 and 15.12.2019 respectively; and the two events having failed to yield desired results, the conspirators realised that stray or isolated events would not serve in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using the excuse of a political protest to give primacy to religion"; and a general disenchantment was sought to be created affecting the security of the State. Reference in this regard was made by the State to the statement dated 25.06.2020 of protected witness named Romeo, which is extracted as Screenshot 13 in Annexure - B, alleging that the actions therefore had the tendency of creating public disorder of the most extreme gravity and demonstrated not just disaffection to the country but disloyalty to it. (xxiii) Though it is conceded that the appellant was excluded from the JCC after he was named in other FIRs, it is contended that such exclusion was nominal and the appellant continued to be associated with and participated in the objects of the conspiracy, which it is alleged, is apparent from his involvement in the meeting at Jamia University on 22.02.2020. (xxiv) It is argued that the "voice of sanity" (allegedly of one of the protected witness) was shut-out. Attention of the court was drawn in this regard to portions of pages 2205-06 of the subject charge-sheet, which portions are extracted as Screenshot 14a-14b in Annexure - B; and it is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and above the 2200 policemen already deployed; that "protests were coordinated across Delhi and covered diverse areas like Jamia, Seelampur, Khajuri, Hauzrani, Khureji and Jafrabad", with there being plans to extend this protest across other cities of the country; and that there was extensive and widespread destruction of property involving settlement of claims of approximately ₹ 22 crores. As many as 16,381 PCR calls were received between 22.02.2020 and 26.02.2020; and cartridges, knives and swords, broken glass bottle (used for petrol bombs) and even scissors were weaponised and loose stones were liberally used. (xxx) It is argued that the activity in its essential quality may not be different from another act but in its potentiality and in its effect upon public tranquility there can be a vast difference. Reliance in this behalf is placed on the decision of the Hon'ble Supreme Court in Arun Ghosh vs. State of West Bengal (1970) 1 SCC 98,: "3. ... Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he unity and integrity, not just the intent to strike terror but the likelihood to strike terror, not just the use of firearms but the use of any means of whatsoever nature, the means not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, constitutes terrorist act within the meaning of section 15 of UAPA. (xxxiv) It is urged that moreover, under section 18 of UAPA, not merely conspiracy to commit a terrorist act but an attempt to commit or advocating the commission or advising it or inciting or directing or knowingly facilitating commission of a terrorist act is also punishable. In fact, even acts preparatory to commission of terrorist acts are punishable under section 18 of UAPA. (xxxv) It is submitted that the objection of the appellant that a case is not made-out under UAPA is based on assessing the degree of sufficiency and credibility of evidence not the absence of its existence but the extent of its applicability; but that such objection of the appellant is outside the scope of section 43D(5) of the UAPA. (xxxvi) Distinguishing the present case from that in K.A. Najeeb (supra), the State ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What however, is 'terrorism' or 'terror', from which the meaning of 'terrorist act' and other related words may be derived? 30. The concept and construction of terrorism has been dealt-with by the Hon'ble Supreme Court in relation to earlier legislations inter alia in the decisions discussed below. 31. In Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. (1994) 4 SCC 602, defining terrorism, the Hon'ble Supreme Court says: "7. 'Terrorism' is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. 'Terrorism' has not been defined under TADA nor is it possible to give a precise definition of 'terrorism' or lay down what constitutes 'terrorism'. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as have been enumerated in Section 3(1) and which cause or are likely to result in the offences as mentioned in the said section." (emphasis supplied) 32. TADA deals with activity "which cannot be classified as a mere law and order problem or disturbance of public order or even disturbance of the even tempo of the life of the community of any specified locality, but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because the intended extent and reach of the criminal activity of the 'terrorist' is such which travels beyond the gravity of the mere disturbance of public order even of a 'virulent nature' and may at times transcend the frontiers of the locality...", as explained by the Hon'ble Supreme Court in Kartar Singh (supra): "68. The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbance of 'public order' disturbing the "even tempo of the life of community of any specified locality" -- in the words of Hidayatullah, C.J. in Arun Ghosh v. State of W.B. [(1970) 1 SCC 98] but it is much more, rather a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or for 'human sacrifice' and the sudden outbreak of violence, mass killing of army personnel, jawans of Border Security Force, government officials, politicians, statesmen, heads of religious sects by using bombs and sophisticated lethal weapons thereby injecting a sense of insecurity in the minds of the people, with the intention of destabilizing the sovereignty or overthrowing the Government as established by law. The way in which the alleged violent crimes is shown to have been perpetrated, the manner in which they have been cruelly executed, the vulnerable territorial frontiers which form part of the scene of unprecedented and unprovoked occurrences, lead to an inescapable illation and conclusion that the activities of the terrorists and disruptionists pose a serious challenge to the very existence of sovereignty as well as to the security of India notwithstanding the fact whether such threats or challenges come by way of external aggression or internal disturbance. * * * * * "113. Though normally the plain ordinary grammatical meaning of an enactment affords the best guide and the object of interpreting a statute is to ascertain the intention of the legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... designed to position the people against the Government by creating a feeling of insecurity. "9. Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organised groups or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements are trying to destabilise the country. This n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up of persons or particular persons, intimidate a population or compel a Government or an international organisation to do or abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations or a political, philosophical, ideological, racial, ethnic, religious or other similar nature,..." (emphasis supplied) 37. In Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra & Ors. (2010) 5 SCC 246, dealing with the constitutionality of MCOCA and opining on the distinction between 'public order' and 'security of the State', the Hon'ble Supreme Court says: "31. It has been time and again held by this Court that the expression "public order" is of a wide connotation. In Romesh Thappar v. State of Madras [AIR 1950 SC 124] it has been held by this Court that "public order" signifies a state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established. This Court, in para 10, at AIR p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affect law and order but not public order just as an act may affect public order but not security of the State." "34. The Constitution Bench of this Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr [ (1970) 3 SCC 746] while adopting and explaining the scope of the test laid down in Ram Manohar Lohia (Dr.) v. State of Bihar [ AIR 1966 SC 740] stated that the State is at the centre of the society. Disturbances in the normal functioning of the society fall into a broad spectrum, from mere disturbance of the serenity of life to jeopardy of the State. The acts become more and more grave as we journey from the periphery of the largest circle towards the centre. In this journey we travel first through public tranquillity, then through public order and lastly to the security of the State. This Court further held that in the judgment of this Court, the expression "in the interest of public order" as mentioned in the Constitution of India encompasses not only those acts which disturb the security of the State or acts within ordre publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... list of terrorist organisations under UAPA hereinbefore is to bring to the fore the contrast between the two legislations which are in question before us. The exhaustive list of terrorist organisations in the First Schedule to UAPA has been included in order to show the type and nature of the organisations contemplated under that Act. A careful look of the same would indicate that all the organisations mentioned therein have as their aims and objects undermining and prejudicially affecting the integrity and sovereignty of India, which certainly stand on a different footing when compared to the activities carried out by the forces like the appellant. * * * * * * "75. A perusal of the Preamble, the Statement of Objects and Reasons and the interpretation clauses of MCOCA and UAPA would show that both the Acts operate in different fields and the ambit and scope of each is distinct from the other. So far as MCOCA is concerned, it principally deals with prevention and control of criminal activity by organised crime syndicate or gang within India and its purpose is to curb a wide range of criminal activities indulged in by organised syndicate or gang. The aim of UAPA, on the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention, the majority of a 5-Judge Bench of the Hon'ble Supreme Court partly accepted the challenge, holding that what constitutes 'essential services and supplies' should have been specified and published in advance by a law, order or notification, and says: "62. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi [AIR 1978 SC 597]. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the proscribed area, when measured by common understa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and services essential to the community', the detaining authority will be free to extend the application of this clause of sub-section (2) to any commodities or services the maintenance of supply of which, according to him, is essential to the community. "65. But that is not all. The Explanation to sub-section (2) gives to the particular phrase in that sub-section a meaning which is not only uncertain but which, at any given point of time, will be difficult to ascertain or fasten upon. ... We find it quite difficult to understand as to which are the remaining commodities outside the scope of the Act of 1980, in respect of which it can be said that the maintenance of their supplies is essential to the community. The particular clause in sub-section (2) of Section 3 of the National Security Act is, therefore, capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity is essential to the community. We consider the particular clause not only vague and uncertain but, in the context of the Explanation, capable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (a) to (d) of sub-section (1) of Section 21. Provision is also made in regard to the identification of an accused who is not traced through photographs. There are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism. These provisions are a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities. There can, therefore, be no doubt that the legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same. The legislature, therefore, made special provisions which can in certain respects be said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. It is well settled that statutes which impose a term of imprisonment for what is a criminal offence under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d offences under the Penal Code, 1860 and other penal statutes providing for punishment of three years or more and in relation to such offences more than one charge-sheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA. * * * * * "38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed....What would further be necessary on the part of the court is to see the culpability of the accused in his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea...." (emphasis supplied) 44. To comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est has been discussed and expatiated in various judgments, a reference to some of which is made below. 46. In Mazdoor Kisan Shakti Sangathan vs. Union of India and Anr. (2018) 17 SCC 324, the Hon'ble Supreme Court says: "48. ...Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right. This right is specifically enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) confers a very valuable right on the citizens, namely, right of free speech. Likewise, Article 19(1)(b) gives the right to assemble peacefully and without arms. Together, both these rights ensure that the people of this country have the right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highways to avoid nuisance or disruption to traffic and thus, it can provide a public meeting on roads, but it does not mean that the Government can close all the streets or open areas for public meetings, thus denying the fundamental right which flows from Articles 19(1)(a) and (b). The Court held: (SCC pp. 239 & 248, paras 33 & 70) "33. This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. * * * 70. Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre-Independence days such meetings have been held in open space and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the State or Municipality can constitutionally close both its streets and its parks entirely to public meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquillity, as it may disturb the social order. This delegated power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them." "53. Further, in Anita Thakur [ (2016) 15 SCC 525], the Court recognised that the right to peaceful protest was a fundamental right under Articles 19(1), (b) and (c) of the Constitution, subject to reasonable restrictions. It was finally held that in that while the protestors turned violent first, the police used excessive force: (SCC pp. 533-34, paras 12-13 & 15) "12...... The "right to assemble" is beautifully captured in an eloquent statement that "an unarmed, peaceful protest procession in the land of "salt satyagraha", fast-unto-death and "do or die" is no jural anathema". It hardly needs elaboration that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected. "62. We feel that the pathetic conditions which were caused as a result of the processions, demonstrations and agitations, etc. at the Jantar Mantar were primarily because of the reason that the authorities did not take necessary measures to regulate the same. Had adequate and sufficient steps been taken by the authorities to ensure that such dharnas and demonstrations are held within their bounds, it would have balanced the rights of protestors as well as the residents. For example, the dharnas and protests were allowed to be stretched almost on the entire Jantar Mantar Road, on both sides, and even across the width of the road. Instead, a particular area could have been earmarked for this purpose, sufficiently away from the houses, etc. so that there is no unnecessary blockage of roads and pathways. Likewise, the demonstrators were allowed to go on with nonstop slogans, even at odd hours, at night, and that too with the use of lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an era of technology where a concerned voice by a group of persons can reach the right quarters by numerous means. Electronic and print media play a pivotal role. Then, we have social media and various applications like "WhatsApp", "Twitter", "Instagram", etc. which take no time in spreading such events........" (emphasis supplied) True connotation of 'terrorist act' & do accusations make-out an offence under UAPA 47. First and foremost, this court would be required to consider whether the allegations against the appellant in the subject charge-sheet make-out any offence under Chapters IV and/or VI of the UAPA, and if so, which offence or offences are disclosed. As seen from the discussion above, the offences alleged against the appellant under Chapter IV are offences under sections 15, 17 and 18, all of which fall under Chapter IV of the UAPA. Section 15 engrafts the offence of 'terrorist act', section 17 lays-down the punishment for raising funds for committing a terrorist act and section 18 engrafts the offence of 'punishment for conspiracy etc. to commit a terrorist act or any act preparatory to commit a terrorist act& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Iqbal M Shaikh, the Hon'ble Supreme Court says: "...it may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole ..." (emphasis supplied) 52. Furthermore, in PUCL (supra) the Hon'ble Supreme Court also observes that: "... Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is defence of our nation and its citizens. It is a challenge to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narrower construction than what the literal words suggest...". 55. Also noteworthy are the words of another Constitution Bench of the Hon'ble Supreme Court in Sanjay Dutt (supra) to the effect that when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statute "are not roped in by stretching the law". 56. It is therefore clearly the position in our jurisprudence that where a provision of law engrafting serious penal consequences is vague, such provision must be construed narrowly in order to bring it within the constitutional framework; and must be applied in a just and fair way, lest it unjustly ropes within its ambit persons whom the Legislature never intended to punish. Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency 'crying wolf'. 57. In our opinion, the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he had formed the JCC; nor that he was even the group administrator of any of the WhatsApp groups, which, the allegation goes, were formed with the sinister aim of organising a protest against the CAA that would cause havoc amongst the ordinary citizenry; (d) The appellant is stated to be a member of the SIO and the JCC, admittedly neither of which is a banned organisation or terrorist organisation listed in the First Schedule to the UAPA. The JCC in fact is not even an organisation but only an inchoate committee, defined perhaps only by the WhatsApp group that it runs; (e) The common refrain running through the subject charge-sheet, as seen from the extracts cited and relied upon by the State, is that the appellant's co-conspirators directed and instructed him to do certain things, including to visit Muslim areas, coordinate with local Imams, and help in orchestrating the anti-CAA protests at various locations in Delhi; (f) There is no allegation in the subject charge-sheet that the anti-CAA protest extended even to the whole of the National Capital Territory of Delhi; and a perusal of the subject charge-sheet shows that the protest and the disruptions it is alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meaning of sections 15 and 18 of the UAPA. Having given our anxious consideration to this aspect of 'likelihood' of threat and terror, we are of the view that the foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi; (j) It has been a recurrent theme, repeatedly urged by the State, that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi. We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation and we are of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us otherwise. In fact, upon a closer scrutiny of the submissions made on behalf of the State, we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations; (k) It is the admitted position th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, to which decision one of us was a member, we need only say that in that case charges had already been framed against the appellant therein and two co-accused had already pleaded guilty; whereby, after appreciating the evidence adduced alongwith the charge-sheet, the Special Court had already determined that the accusations against the appellant therein were prima facie true; and the order framing charges was not under challenge before the High Court. 60. In this case, we find that the State's attempt to show that the accusations made against the appellant are prima facie true, does not commend itself for acceptance. 61. Once we are of the opinion, as we are in the present case, that there are no reasonable grounds for believing that the accusations against the appellant are prima facie true, the Proviso to section 43D(5) would not apply; and we must therefore fall back upon the general principles of grant or denial of bail to an accused person charged with certain offences. Right to Protest 62. Since this matter emanates from a protest organised by certain persons, which the State alleges, was no ordinary protest but one that has shaken or is likely to have shaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e anything to show that the appellant was the perpetrator or conspirator or was involved in any illegal protest. In any case, whatever offences are alleged to have been committed by reason of the protests having turned non-peaceful are subject matter of F.I.R. No. 298/2019, in which the appellant is an accused and in which he has already been admitted to bail and will face trial in due course. There is absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation that would show the possible commission of a 'terrorist act' within the meaning of section 15 UAPA; or an act of 'raising funds' to commit a terrorist act under section 17; or an act of 'conspiracy' to commit or an 'act preparatory' to commit, a terrorist act within the meaning of section 18 UAPA. We are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found the offences defined under section 15, 17 or 18 UAPA. 66. In our view, on an objective reading of the allegations contained in the subject charge-sheet, there is complete lack of any specific, particularised, factual allegations, that is to say alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under section 43D(5) UAPA do not apply; and the court may therefore fall back upon the usual and ordinary considerations for bail under the Cr.P.C. 69. In this behalf the submission made on behalf of the State, which we must address, is that the High Court while deciding an appeal under section 21 of the NIA Act must consider the grant or denial of bail only within the parameters of section 437 Cr.P.C. and not section 439 Cr.P.C. since the High Court is seized of an appeal arising from the Special Court, which (latter) has acted under section 437 Cr.P.C., since in dealing with a case under the UAPA, the Special Court is not a Court of Sessions. Although, the learned ASG contends that this is the principle laid down by the Hon'ble Supreme Court in Kartar Singh (supra), we are unable to find any precept to that effect laid down in Kartar Singh (supra). Moreover, to say that while considering a bail plea, even if in an appeal under section 21 of the NIA Act, the High Court would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." "9. In Chaman Lal v. State of U.P. (2004) 7 SCC 525 this Court while dealing with an application for bail has stated that certain factors are to be considered for grant of bail, they are: (SCC p. 525) "... (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law, and he will then be imprisoned...." "21. In Sunil Fulchand Shah v. Union of India (2000) 3 SCC 409 Dr A.S. Anand, learned Chief Justice, in his concurring opinion, observed: (SCC pp. 429-30, para 24) "24. ... Bail is well understood in criminal jurisprudence and Chapter 33 of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety." (emphasis supplied) 72. In a recent decision in Sanjay Chandra vs. CBI (2012) 1 SCC 40 the Supreme Court has held that: "21. In bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice"." * * * * * "39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there is likelihood of his further influencing the witnesses cannot be the ground to deny bail to the appellant particularly, when there is no such whisper in the six remand applications filed by the prosecution. The charge-sheet has been filed against the appellant and other co-accused on 18.10.2019. The appellant is in custody from 21.08.2019 for about two months. The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail." (emphasis supplied) 74. Furthermore in P. Chidambaram vs. Directorate of Enforcement, the Supreme Court has explained the concept and application of 'gravity' of an offence in the following way: "12. .... The gravity can only beget the length of sentence provided in law and by asserting that the offence is grave, the grant of bail cannot be thwarted. The respondent cannot contend as if the appellant should remain in custody till the trial is over. * * * * * "23. .... Keeping in view the conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted.......... The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible." (emphasis supplied) Conclusions 77. Upon a conspectus of the general law relating to bail and applying these well-worn principles to the present case, in our view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made. Charge-sheet dated 16.09.2020 has already been filed in the matter. Some 740 witnesses have been cited in the subject charge-sheet. Trial is yet to commence. In view of the truncated functioning of courts by reason of the prevailin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds and shall inform the Investigating Officer if he changes his usual place of residence; (d) If the appellant has a passport, he shall surrender the same to the learned Trial Court and shall not travel out of the country without prior permission of the learned Trial Court; (e) The appellant shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of case. The appellant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial. 81. For clarity, this judgment supersedes the interim custody bail granted to the appellant vide order dated 04.06.2021. 82. Nothing in this order shall be construed as an expression on the merits of the pending trial. 83. A copy of this order be sent to the concerned Jail Superintendent. 84. The appeal stands disposed of in the above terms. 85. Pending applications, if any, are also disposed of. ANNEXURE-A COMPARISON TABLE OF PROVISIONS NDPS TADA MCOCA, 1999 POTA UAPA Narcotic Drugs and Psychotropic Substances Act, 1985 Terrorist and Disruptive Activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity of being heard. (7) Where the Public Prosecutor opposes the application of the accused to release on bail, no person accused of an offence punishable under this Act or any rule made thereunder shall be released on bail until the court is satisfied that there are grounds for believing that he is not guilty of committing such offence: Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of subsection (6) of this section shall apply. 43-D. Modified application of certain provisions of the Code. -- (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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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