Supreme Court of India
JALALUDDIN KHANversusUNION OF INDIA
- Citation
- 2024 INSC 604
- Decided
- 13 August 2024
- Disposal
- Appeal(s) allowed
- Bench
- ABHAY S OKA
Holding
Having examined the charge sheet as a whole, the Court found no reasonable grounds to believe the accusations against the appellant were prima facie true under Section 43D(5) of the UAPA, and therefore bail must be granted.
Summary
The appellant, a retired police constable, was charged under the UAPA and IPC for alleged involvement in activities of the Popular Front of India (PFI) at a building owned by his wife. He sought bail before the Special Court and the High Court, both of which denied it while granting bail to a co‑accused. The Supreme Court examined the charge sheet and the statements of protected witnesses, finding that the material did not establish a prima facie case against the appellant under Sections 13, 18, 18A and 20 of the UAPA. The Court reiterated that bail is the rule and jail the exception, and that courts must not conduct a mini‑trial but assess whether reasonable grounds exist to believe the accusations are prima facie true. Consequently, the Court held that no such grounds existed and ordered the appellant’s bail to be enlarged. The appeal was allowed and the lower courts' orders set aside.
Issues considered
- What factors must be considered under Section 43D(5) of the UAPA when deciding bail applications for offences under Chapters IV and VI?
- Whether the material in the charge sheet establishes a prima facie case against the appellant under the UAPA.
- Whether bail should be granted to the appellant in view of the statutory requirements.
Legislation cited
- Unlawful Activities (Prevention) Act, 1967s. 13, s. 18, s. 18A, s. 20, s. 43D(5)
Subjects
Bail is the Rule and Jail is the exceptionPrima facieMini-trialUAPASection 43D(5)Charge sheet
Judgment
[2024] 8 S.C.R. 633 : 2024 INSC 604
Jalaluddin Khan
v.
Union of India
(Criminal Appeal No. 3173 of 2024)
13 August 2024
[Abhay S. Oka* and Augustine George Masih, JJ.]
Issue for Consideration
Factors to be taken into consideration, under Section 43D(5) of
the Unlawful Activities (Prevention) Act, 1967, while deciding Bail
Applications for offences falling under Chapters IV and VI of the Act.
Headnotes†
Bail is the Rule and jail is an exception – Principle – Statutes
with Stringent condition – Applicability of:
Held: The Court while deciding an application of bail falling under
the provisions of Section 43D (5) is not required to conduct a mini-
trial – Only a prima facie case has to be established – The Court
has to examine the material forming a part of the charge sheet to
decide whether there are reasonable grounds for believing that the
accusations against the person applying for bail are prima facie
true – While doing so, the court must take the charge sheet as it
is – When a case is made out for a grant of bail, the Courts should
not have any hesitation in granting bail – The allegations of the
prosecution may be very serious – But, the duty of the Courts is
to consider the case for grant of bail in accordance with the law –
“Bail is the rule and jail is an exception” is a settled law – Even
in cases of statutes where there are stringent conditions for the
grant of bail, the same rule holds good with only a modification
that the bail can be granted if the conditions in the statute are
satisfied – The rule also means that once a case is made out for
the grant of bail, the Court cannot decline to grant bail – If the
Courts start denying bail in deserving cases, it will be a violation
of the rights guaranteed under Article 21 of the Constitution of
India. [Para 15, 21]
* Author
634 [2024] 8 S.C.R.
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Case Law Cited
Shoma Kanti Sen v. State of Maharashtra and Another [2024] 4
SCR 270 : (2024) 6 SCC 591 : 2024 INSC 269; Gurwinder Singh
v. State of Punjab and Another [2024] 2 SCR 134 : (2024) 5 SCC
403 : 2024 INSC 92; National Investigation Agency v. Zahoor
Ahmad Shah Watali [2019] 5 SCR 1060 : (2019) 5 SCC 1 : 2019
INSC 456 – referred to.
Thwaha Fasal v. Union of India [2021] 8 SCR 797 : (2022) 14
SCC 766 : 2021 INSC 688 – relied upon.
List of Acts
Unlawful Activities (Prevention) Act, 1967.
List of Keywords
Bail is the Rule and Jail is the exception; Prima facie; Mini-trial.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3173
of 2024
From the Judgment and Order dated 28.11.2023 of the High Court of
Judicature at Patna in CRADB No. 514 of 2023
Appearances for Parties
Ms. Mukta Gupta, Sr. Adv., Shaikh Saipan Dastgir, Rizwan Ahmad,
Ms. Nitya Gupta, Paras Nath Sing, Himanshu Gupta, Advs. for the
Appellant.
Ms. Aishwarya Bhati, A.S.G., Mrigank Pathak, Rajat Nair, Ms. Shagun
Thakur, Ms. Chitrangda Rastvara, Ms. Neelakshi Bhadauria, Arvind
Kumar Sharma, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
FACTUAL ASPECTS
1. The appellant is being prosecuted for the offences punishable under
Sections 121, 121A and 122 of the Indian Penal Code (for short,
‘the IPC’) and Sections 13, 18, 18A and 20 of the Unlawful Activities
[2024] 8 S.C.R. 635
Jalaluddin Khan v. Union of India
(Prevention) Act, 1967 (for short, ‘the UAPA’). A charge sheet was
filed on 7th January 2023. He is shown as accused no.2 in the charge
sheet. The appellant applied for bail before the Special Court under
the UAPA, which was rejected. Hence, the appellant and some co-
accused applied for bail before the High Court. By the impugned
judgment, the prayer for bail made by the appellant was rejected,
while bail was granted to a co-accused.
SUBMISSIONS
2. The submission of Ms Mukta Gupta, learned senior counsel, is that
there is absolutely no material to link the appellant with the offences
under the UAPA. She pointed out that, at highest, the allegation
is that the appellant’s wife was the owner of a building known as
Ahmad Palace and that the appellant had clandestinely shown that
premises on the first floor of the said building were given on rent
to one Athar Parwez – Accused no. 1. The allegation is that, the
first floor premises are being used for objectional activities of an
organisation called Popular Front of India (PFI). She submitted that
taking the charge sheet as it is, no connection has been established
between the activities of PFI and the appellant. Even prima facie
material for connecting the appellant with PFI is not available. She
submitted that various people occupy other premises in the building.
The building has a pathology laboratory, a clinic, and shops. She
pointed out that, therefore, CCTV cameras were fixed on the property.
She submitted that if the activities of PFI were really being carried
out in the building with the connivance of the appellant, he would
not fix CCTV cameras inside the property. She would submit that
the appellant’s case satisfies the tests laid down by Section 43D (5)
of the UAPA, as there are no reasonable grounds for believing that
the accusations against the appellant are prima facie true. Learned
senior counsel relied upon a decision of this Court in the case of
Shoma Kanti Sen v. State of Maharashtra and another.1
3. Ms Aishwarya Bhati, learned Additional Solicitor General of India,
invited our attention to statements of the protected witnesses V, Y,
and Z, tendered on record, in a sealed cover. She pointed out that
CCTV footage seized by the Investigating Agency of the building
Ahmad Palace shows that on 6th and 7th July 2022, the appellant
1 [2024] 4 SCR 270 : (2024) 6 SCC 591
636 [2024] 8 S.C.R.
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and accused no. 1 were seen shifting certain items from the first
floor of the building. When the police conducted a raid on 11th July
2022, those items were not found, and therefore, the appellant
tampered with the evidence. Relying upon paragraph 17.16 of the
charge sheet, she submitted that protected witness Z disclosed that
on 29th May 2022, the appellant attended a meeting-cum-training
on the first floor of the building Ahmad Palace along with several
other accused who were associated with PFI. During this meeting,
the subjects relating to the expansion of the organisation, basic
and advanced training of PFI members, Muslim empowerment,
and future plans for PFI were discussed. She pointed out that the
protected witness Z stated that after considering the remarks made
by one Nupur Sharma on the Prophet Mohammed, directions were
issued to the trained PFI members to attack and kill the selected
targets who were involved in making derogatory remarks against
the religion. Learned ASG pointed out that paragraph 17.26 of the
charge sheet shows that on 12th May 2022, a sum of Rs. 25,000/- was
transferred to the account of the appellant’s son, from an account
of an absconding accused. She submitted that the rent agreement
was bogus and was made to mislead the police, and the appellant
had knowingly allowed the first floor premises to be used for PFI’s
activities. She would submit that there was enough material in the
documents produced along with the charge sheet, which shows that
a strong prima facie case is made about the appellant’s involvement
in the offences punishable under Sections 13, 18, 18A and 20 of
the UAPA. She pointed out that accused no.1, in whose name the
tenancy of the first floor was shown, had been an active member
of a banned terrorist organisation-the Student Islamic Movement
of India (SIMI).
CONSIDERATION OF SUBMISSIONS
4. The appellant was arrested on 12th July 2022. The Trial has not
made any progress. The building Ahmad Palace stands in the name
of the appellant’s wife. The appellant is a retired police constable.
The allegation is that on 11th July 2022, in the evening, the police
carried out a raid on the first floor premises of Ahmad Palace. At
that time, there was a recovery and seizure of incriminating articles
and documents relating to PFI. Paragraph 17.1 of the charge sheet
reads thus:
[2024] 8 S.C.R. 637
Jalaluddin Khan v. Union of India
“17.1 Bihar Police had received information about a plan
to disturb the proposed visit of Hon’ble Prime Minister to
Bihar by some suspected persons who had assembled
in Phulwarisharif area. On 11.07.2022 at about 1930
hrs, on secret information, a raid was carried out by the
Police Officers of PS Phulwarisharif, Patna at the rented
house/premises of Athar Parvej (A-1) and recovered 05
sets of document “India 2047 Towards Rule of Islamic
India, Internal Document: Not for circulation”, Pamphlets
“Popular front of India 20 February, 2021”- 25 copies in
Hindi and 30 copies in Urdu, 49 cloth Flags, 02 magazines
“Mulk ke liye Popular front ke saath” and one copy of rent
agreement on non Judicial Stamp by Farhat Bano w/o
Md Jalaluddin Khan (A-2) with tenant Athar Parvej (A-1)
son of Abdul Qayum Ansari. The recovered articles and
a Samsung mobile phone having SIM card of accused
Mohammed Jalaluddin (A-2) were seized in the instant
case. They were related to anti-India activities.”
5. Following are the other paragraphs in the charge sheet relied upon
by the respondent:
“17.16 Protected witness-“Z” further stated that on 29th
May 2022, a meeting cum training was organized in Ahmad
Palace, Phulwarisharif Parna, a rented accommodation
arranged by Athar Parvej (A-1) and others in this criminal
conspiracy. This meeting was chaired by Riyaz Firangipet
(A-20) of Karnataka and approximate 40-45 persons
including Mahboob Alam Nadvi (A-7), Sanaullah (A-5),
Riyaz Mourif (A-4), Mehboob-Ur-Rehman (A-11), Ehsan
Parvez (A-7), Ansarul Huque (A-21), Riyaz Ahmed (A-17),
Perwez Alam (A-26), Tausif Alam (A-6), Athar Parvej (A-1),
Md. Jalaluddin (A-2) and others, who are associated with
PFI, attended this meeting. During this meeting, the points
related to expansion of organisation, basic and advance
training of PFI members, Muslim empowerment and future
plan of PFI were discussed. Protected Witness-Z also
stated that after the remark of Nupur Sharma on Prophet
Mohammad, directions were given to the trained PFI cadres
to attack and kill selected targets who were involved in
making derogatory remarks against Islam.”
638 [2024] 8 S.C.R.
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“15.5 During the investigation, Hard Disk/DVR of the CCTV
installed in Ahmad Palace was seized by the investigating
officer of police station Phulwarisharif, Patna. The mirror
images of CCTV footages have been received from CDAC,
Thiruvananthapuram, Kerala. The CCTV footage confirmed
the presence of FIR named accused persons including
Athar Parvej (A-1) in the Ahmad Palace, Phulwarisharif,
Patna on 6th and 7th July, 2022. The CCTV footage also
confirmed that the Police of PS Phulwarisharif carried out
raid at the first floor of Ahmad Palace Phulwarisharif on
11.07.2022 at around 7 PM in presence of Athar Parvej
(A-1) and Md. Jalaluddin (A-2). It also established that
Md Jalaluddin (A-2) tampered the evidence by shifting of
items from the first floor of Ahmad Palace, Phulwarisharif,
Patna before raid of Police dated 11.07.2022.”
“17.2 Investigation brought out that during preliminary
questioning by Police of PS Phulwarisharif, Patna, Md.
Jalaluddin (A-2), owner of the house, revealed that the
first floor of his house was taken on rent by Athar Parvej
(A-1) for imparting training. On 6th and 7th July 2022, the
training was conducted here, in which participants from
other states were also present.
………………………………………………………….”
“17.26 During the investigation, the account statement
of SBI account No. 33767976372 was sought from the
State Bank of India, Branch Walmi, Patna and analysed.
On analysis it revealed that on 12.05.2022, Rs. 25000/-
were transferred into the account of Aamir Jalal s/o Md.
Jalaluddin (A-2) from the Punjab National Bank, Bharwara,
Distt-Muzaffarpur account no. 0772010316309 of Saqeeb
Ahmad, s/o Md. Nayaj Ahmad Ankhuli Bhandhpur Katra,
Muzaffarpur, Bihar. On analysis of the call data records
of mobile number 9262711612 of said Saqeeb Ahmad, it
was found that this mob no. was connected with accused
Sanaullah (A-3) on the relevant dates which corroborated
that the said amount was transferred on the direction of
Sanaullah (A-5).”
[2024] 8 S.C.R. 639
Jalaluddin Khan v. Union of India
6. Regarding giving the first floor of the building on rent, the prosecution’s
case is that though the land and the building stand in the name of
the appellant’s wife, she is merely a name lender. The appellant
purchased the property on 19th April 2005 for the consideration
of Rs. 1,25,000/-. In the counter, the respondent has relied upon
the appellant’s disclosure /confessional statement. Whether such
a statement is admissible in evidence or not is another thing. In
the statement of the appellant relied upon by the respondent, it is
stated that accused no.1, Athar Parvez, met his elder son – Aamir
Jalal Khan, in April 2022 and discussed renting the first floor of the
building to him. The appellant’s elder son – Aamir Jalal Khan, quoted
rent of Rs 25,000/- per month. After that, there were negotiations,
and finally, the rent was fixed at Rs. 16,000 per month. Accused no.1
gave Aamir Jalal Khan an advance of Rs. 5,000/-. Thereafter, a sum
of Rs. 25,000/- was transferred by accused no.1 to the account of
Aamir Jalal Khan and the remaining amount of Rs. 2,000/- was paid
at the time of execution of the lease. In the appellant’s statement, it is
stated that this amount of Rs. 32,000/- was paid as advance rent for
two months. In the statement, the appellant stated that accused no.1
gave him information about the PFI organisation. The appellant stated
that people from Bihar and other States used to visit the premises
taken on rent by accused no.1. He stated that as he suspected that
there would be a police raid, he removed items kept on the first floor
premises, like gas cylinders, etc. Even the statement of accused
no.1 relied upon in the counter gives the same facts. Thus, the
material on record, including the so-called discovery statement of
the appellant and co-accused, shows that the premises on the first
floor of the building Ahmad Palace were let out to accused no.1, who
agreed to pay rent of Rs. 16,000/- per month and gave an advance
of Rs. 32,000/- towards rent for two months. We may note here that,
assuming that the appellant knew that co-accused Athar Parvez was
associated with PFI, it is not listed as a terrorist organisation within
the meaning of Section 2(m) of UAPA. Moreover, the charge sheet
does not contain any material to show any connection of the appellant
with PFI before letting out first floor premises to accused no.1.
7. About the sum of Rs. 25,000/- received by the appellant’s son in his
account, there is an explanation in the so-called discovery statement
of the appellant relied upon by the respondent. Therefore, what is
brought on record is that after the appellant’s son negotiated with
640 [2024] 8 S.C.R.
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accused no.1, the premises on the first floor were let out to accused
no.1 at the monthly rent of Rs. 16,000/- per month, and the amount
received by appellant’s son in his account was towards the part
payment of the advance of rent for two months.
8. Now, we come to the other circumstances against the appellant. In
paragraph 15.5 of the charge sheet, it is alleged that the appellant
shifted certain items from the first floor before the raid was conducted
on 11th July 2022. In the discovery statement of the appellant relied
upon by the respondent in its counter, the appellant stated that he
had kept items like gas cylinders, etc., in the first floor premises,
which he removed.
9. In the raid on the first floor premises on 11th July 2022, certain
documents were recovered as stated in paragraph 17.1 of the charge
sheet. No recovery has been shown from the appellant. The charge
sheet describes in detail the contents of the document styled “India
2047 Towards Rule of Islamic India”. It is alleged in the charge
sheet that the scrutiny of the said documents revealed that the said
documents were about establishing Islamic rule in India. It is pertinent
to note that there is no mention in the charge sheet about the nature
of the articles allegedly shifted earlier by the appellant from the first
floor premises. If the appellant intended to shift incriminating material
circulated by PFI, he would have shifted the material mentioned
in paragraph 17.1 of the charge sheet. A statement by Syed Abu
Monawwar discloses that there were commercial premises, such as
shops, pathology labs, etc., on the ground floor of the said building.
If the appellant intended to allow the conduct of the objectionable
activities of PFI by giving first floor premises on rent, he would not
have installed CCTV cameras.
10. Now, we turn to the circumstance relied upon by learned ASG, which
is in paragraph 17.16. Paragraph 17.16 purports to reproduce what
protected witness Z stated. We again reproduce the said paragraph,
which reads thus:
“17.16 Protected witness-“Z” further stated that on 29th
May 2022, a meeting cum training was organized in Ahmad
Palace, Phulwarisharif Parna, a rented accommodation
arranged by Athar Parvej (A-1) and others in this criminal
conspiracy. This meeting was chaired by Riyaz Firangipet
(A-20) of Karnataka and approximate 40-45 persons
[2024] 8 S.C.R. 641
Jalaluddin Khan v. Union of India
including Mahboob Alam Nadvi (A-7), Sanaullah (A-5),
Riyaz Mourif (A-4), Mehboob-Ur-Rehman (A-11), Ehsan
Parvez (A-7), Ansarul Huque (A-21), Riyaz Ahmed (A-17),
Perwez Alam (A-26), Tausif Alam (A-6), Athar Parvej (A-1),
Md. Jalaluddin (A-2) and others, who are associated with
PFI, attended this meeting. During this meeting, the points
related to expansion of organisation, basic and advance
training of PFI members, Muslim empowerment and future
plan of PFI were discussed. Protected Witness-Z also
stated that after the remark of Nupur Sharma on Prophet
Mohammad, directions were given to the trained PFI cadres
to attack and kill selected targets who were involved in
making derogatory remarks against Islam.”
Thus, paragraph 17.16 purports to reproduce the statement of
protected witness Z. In terms of our earlier order, the translated
version of the statement of protected witness Z, recorded before the
Additional Chief Judicial Magistrate, Patna, has been produced in
a sealed envelope. We find that the statement substantially differs
from what is narrated in paragraph 17.16 of the charge sheet.
11. The perusal of the statement shows that protected witness Z did not
expressly state that the appellant participated in the meeting held on
29th May 2022. He has set out the names of several persons who
attended the meeting. The appellant’s name is not included in the
names set out. In fact, the statement of protected witness Z indicates
that after the meeting, the appellant was introduced as the owner
of the building. Paragraph 17.16 alleges that protected witness Z
stated that in the meeting, subjects such as the expansion of the
organisation, basic and advanced training of PFI members and future
PFI plans were discussed, and a direction was given to trained PFI
cadre to eliminate one Nupur Sharma. In the statement of protected
witness Z, all that is not found. In fact, protected witness Z stated
that during the meeting, emphasis was given on strengthening the
status of Muslims, imparting them basic and advanced training and
strengthening the status of education, politics and administration of
Muslims and Muslim empowerment. Going by the witness’s version,
we find that there was no discussion about the activities of PFI in
the meeting held on 29th May 2022. According to the witness, the
direction to kill Nupur Sharma was issued in June 2022 and not in
the meeting of 29th May 2022. We are not reproducing the statement
642 [2024] 8 S.C.R.
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of the protected witness Z as it has been kept in a sealed cover.
Suffice it to say that what is reproduced in paragraph 17.16 is not
correct. The material portion of witness Z’s actual statement has been
completely distorted in paragraph 17.16 of the charge sheet. Several
things which protected witness Z did not state have been incorporated
in paragraph 17.16. Unfortunately, paragraph 17.16 attributes certain
statements to protected witness Z, which he did not make. NIA owes
an explanation for that. The investigating machinery has to be fair.
But, in this case, paragraph 17.16 indicates to the contrary.
12. Now, we come to the provision relating to bail under the UAPA, which
is sub-Section 5 of Section 43D of the UAPA, which reads thus:
“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 facie true.
………………………………………………………….”
13. Learned ASG relied upon a decision of this Court in the case of
Gurwinder Singh v. State of Punjab and Another.2 This Court
extensively considered its earlier decision in the case of National
Investigation Agency v. Zahoor Ahmad Shah Watali, 3 which
deals with interpretation of Section 43D(5). Paragraph 32 of the said
decision reads thus:
2 [2024] 2 SCR 134 : (2024) 5 SCC 403
3 [2019] 5 SCR 1060 : (2019) 5 SCC 1
[2024] 8 S.C.R. 643
Jalaluddin Khan v. Union of India
“32. In this regard, we need to look no further than Watali
case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 :
(2019) 2 SCC (Cri) 383] which has laid down elaborate
guidelines on the approach that courts must partake in, in
their application of the bail limitations under the UAP Act.
On a perusal of paras 23 to 24 and 26 to 27, the following
8-point propositions emerge and they are summarised as
follows:
32.1.Meaning of “prima facie true” :
On the face of it, the materials must show the
complicity of the accused in commission of the offence.
The materials/evidence must be good and sufficient
to establish a given fact or chain of facts constituting
the stated offence, unless rebutted or contradicted by
other evidence.
32.2. Degree of satisfaction at pre charge-sheet, post
charge-sheet and post-charges — compared :
“26. … once charges are framed, it would be safe to
assume that a very strong suspicion was founded upon the
materials before the Court, which prompted the Court to
form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged against the
accused, to justify the framing of charge. In that situation,
the accused may have to undertake an arduous task to
satisfy the Court that despite the framing of charge, the
materials presented along with the charge-sheet (report
under Section 173 of CrPC), do not make out reasonable
grounds for believing that the accusation against him is
prima facie true. Similar opinion is required to be formed
by the Court whilst considering the prayer for bail, made
after filing of the first report made under Section 173 of
the Code, as in the present case.”
32.3. Reasoning, necessary but no detailed evaluation
of evidence :
“24. … the exercise to be undertaken by the Court at this
stage—of giving reasons for grant or non-grant of bail—is
markedly different from discussing merits or demerits of
644 [2024] 8 S.C.R.
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the evidence. The elaborate examination or dissection
of the evidence is not required to be done at this stage.”
32.4. Record a finding on broad probabilities, not
based on proof beyond doubt :
“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.”
32.5. Duration of the limitation under Section 43-D(5) :
“26. … the special provision, Section 43-D of the 1967
Act, applies right from the stage of registration of FIR for
the offences under Chapters IV and VI of the 1967 Act
until the conclusion of the trial thereof.”
32.6. Material on record must be analysed as a “whole”;
no piecemeal analysis
“27. … the totality of the material gathered by the
investigating agency and presented along with the report
and including the case diary, is required to be reckoned
and not by analysing individual pieces of evidence or
circumstance.”
32.7. Contents of documents to be presumed as true :
“27. … The Court must look at the contents of the
document and take such document into account as
it is.”
32.8. Admissibility of documents relied upon by
prosecution cannot be questioned :
The materials/evidence collected by the investigation
agency in support of the accusation against the accused
in the first information report must prevail until contradicted
and overcome or disproved by other evidence…. In any
case, the question of discarding the document at this
stage, on the ground of being inadmissible in evidence,
is not permissible.”
(emphasis added)
[2024] 8 S.C.R. 645
Jalaluddin Khan v. Union of India
14. There is one more decision of this Court in the case of Thwaha
Fasal v. Union of India,4 which again deals with the scope of
Section 43D(5) of UAPA. After considering the decision in the case
of Zahoor Ahmad Shah Watali, 3 in fact, in paragraph 24, the case
has been extensively reproduced. Thereafter, in paragraph 26, this
Court held thus:
“26. Therefore, while deciding a bail petition filed by
an accused against whom offences under Chapters IV
and VI of the 1967 Act have been alleged, the court
has to consider whether there are reasonable grounds
for believing that the accusation against the accused is
prima facie true. If the court is satisfied after examining
the material on record that there are no reasonable
grounds for believing that the accusation against
the accused is prima facie true, then the accused is
entitled to bail. Thus, the scope of inquiry is to decide
whether prima facie material is available against the
accused of commission of the offences alleged under
Chapters IV and VI. The grounds for believing that the
accusation against the accused is prima facie true
must be reasonable grounds. However, the court while
examining the issue of prima facie case as required by
sub-section (5) of Section 43-D is not expected to hold
a mini trial. The court is not supposed to examine the
merits and demerits of the evidence. If a charge-sheet
is already filed, the court has to examine the material
forming a part of charge-sheet for deciding the issue
whether there are reasonable grounds for believing
that the accusation against such a person is prima
facie true. While doing so, the court has to take the
material in the charge-sheet as it is.”
(emphasis added)
15. As held in the case of Thwaha Fasal,4 the Court has to examine the
material forming part of the charge sheet to decide whether there
are reasonable grounds for believing that the accusations against
the person applying for bail are prima facie true. While doing so, the
court must take the charge sheet as it is.
4 [2021] 8 SCR 797 : (2022) 14 SCC 766
646 [2024] 8 S.C.R.
Digital Supreme Court Reports
16. Now, we come to the offences alleged against the appellant. Offences
punishable under Sections 13, 18, 18A, and 20 of the UAPA have
been alleged against the appellant. Section 13 reads thus:
“13. Punishment for unlawful activities.—
(1) Whoever—
(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission
of, any unlawful activity, shall be punishable with
imprisonment for a term which may extend to
seven years and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of
any association, declared unlawful under section 3, after
the notification by which it has been so declared has
become effective under sub-section (3) of that section,
shall be punishable with imprisonment for a term which
may extend to five years, or with fine, or with both.
(3) Nothing in this section shall apply to any treaty, agreement
or convention entered into between the Government of
India and the Government of any other country or to any
negotiations therefor carried on by any person authorised
in this behalf by the Government of India.”
The term unlawful activity has been defined in Section 2(o), which
reads thus:
“2 Definitions.—……………………………
(o) “unlawful activity”, in relation to an individual or
association, means any action taken by such individual
or association (whether by committing an act or by
words, either spoken or written, or by signs or by visible
representation or otherwise),—
(i) which is intended, or supports any claim, to bring
about, on any ground whatsoever, the cession of
a part of the territory of India or the secession of
a part of the territory of India from the Union, or
which incites any individual or group of individuals
to bring about such cession or secession; or
[2024] 8 S.C.R. 647
Jalaluddin Khan v. Union of India
(ii) which disclaims, questions, disrupts or is intended to
disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection
against India;
………………………………………………………….”
Sections 18 and 18A of UAPA read thus:
“18. Punishment for conspiracy, etc.—Whoever
conspires or attempts to commit, or advocates, abets,
advises or incites, directly or knowingly facilitates the
commission of, a terrorist act or any act preparatory to
the commission of a terrorist act, shall be punishable with
imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life, and
shall also be liable to fine.
18A. Punishment for organising of terrorist camps.—
Whoever organises or causes to be organised any camp or
camps for imparting training in terrorism shall be punishable
with imprisonment for a term which shall not be less than
five years but which may extend to imprisonment for life,
and shall also be liable to fine.”
There is nothing in the charge sheet which shows that the appellant
has taken part in or has committed unlawful activities as defined in
the UAPA. There is no specific material to show that the appellant
advocated, abetted, or incited commission of any unlawful activities. A
terrorist act is defined in Section 15(1). Assuming that the co-accused
were indulging in terrorist acts or were making any act preparatory
to the commission of terrorist acts, there is absolutely no material on
record to show that there was any conspiracy to commit any terrorist
act to which the appellant was a party. There is no material produced
on record to show that the appellant advocated, abetted, advised, or
incited the commission of terrorist acts or any preparatory activity.
17. We must note here that the appellant’s son conducted the negotiations
for giving the first floor on rent. Taking the charge sheet as correct,
it is not possible to record a prima facie finding that the appellant
knowingly facilitated the commission or preparation of terrorist acts
648 [2024] 8 S.C.R.
Digital Supreme Court Reports
by letting out the first floor premises. Again, there is no allegation in
the charge sheet against the appellant that he organised any camps
to impart training in terrorism.
18. Now, we come to Section 20 of UAPA, which reads thus:
“20. Punishment for being member of terrorist gang
or organisation.—Any person who is a member of a
terrorist gang or a terrorist organisation, which is involved
in terrorist act, shall be punishable with imprisonment for a
term which may extend to imprisonment for life, and shall
also be liable to fine.”
Terrorist gang has been defined in Section 2(L), which reads thus:
“2 Definitions.—…………………………………….
(L) “terrorist gang” means any association, other than
terrorist organisation, whether systematic or otherwise,
which is concerned with, or involved in, terrorist act;
………………………………………………………….”
There is not even an allegation in the charge sheet that the appellant
was a member of any terrorist gang. As regards the second part
of being a member of a terrorist organisation, as per Section 2(m),
a terrorist organisation means an organisation listed in the first
schedule or an organisation operating under the same name as
the organisation was listed. The charge sheet does not mention the
name of the terrorist organisation within the meaning of Section 2(m)
of which the appellant was a member. We find that the PFI is not a
terrorist organisation, as is evident from the first schedule.
19. Therefore, on plain reading of the charge sheet, it is not possible to
record a conclusion that there are reasonable grounds for believing
that the accusation against the appellant of commission of offences
punishable under the UAPA is prima facie true. We have taken the
charge sheet and the statement of witness Z as they are without
conducting a mini-trial. Looking at what we have held earlier, it is
impossible to record a prima facie finding that there were reasonable
grounds for believing that the accusation against the appellant of
commission of offences under the UAPA was prima facie true. No
antecedents of the appellant have been brought on record.
[2024] 8 S.C.R. 649
Jalaluddin Khan v. Union of India
20. The upshot of the above discussion is that there was no reason to
reject the bail application filed by the appellant.
21. Before we part with the Judgment, we must mention here that the
Special Court and the High Court did not consider the material in
the charge sheet objectively. Perhaps the focus was more on the
activities of PFI, and therefore, the appellant’s case could not be
properly appreciated. When a case is made out for a grant of bail, the
Courts should not have any hesitation in granting bail. The allegations
of the prosecution may be very serious. But, the duty of the Courts
is to consider the case for grant of bail in accordance with the law.
“Bail is the rule and jail is an exception” is a settled law. Even in a
case like the present case where there are stringent conditions for
the grant of bail in the relevant statutes, the same rule holds good
with only modification that the bail can be granted if the conditions
in the statute are satisfied. The rule also means that once a case
is made out for the grant of bail, the Court cannot decline to grant
bail. If the Courts start denying bail in deserving cases, it will be a
violation of the rights guaranteed under Article 21 of our Constitution.
22. Hence, the impugned orders are set aside. The appeal is allowed.
The appellant is directed to be enlarged on bail on the terms and
conditions as may be fixed by the Special Court. For that purpose,
the appellant shall be produced before the Special Court within a
maximum of 7 days from today. The Special Court shall enlarge
the appellant on bail until the conclusion of the trial on appropriate
terms and conditions. The Special Court shall hear the counsel for
the respondent before fixing the terms and conditions.
23. We make it clear that the tentative findings recorded in this judgment
are only for considering the prayer for bail. The reasons are confined
to the case of the appellant. The same will have no bearing on the
trial and cases of the co-accused.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Vidhi Thaker, Hony. Associate Editor
(Verified by: Mr. Kanu Agrawal, Adv.)
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