TMI Blog2021 (6) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Crl. A. 39/2021 - - - Dated:- 15-6-2021 - Siddharth Mridul and Anup Jairam Bhambhani, JJ. For Appellant: Siddharth Aggarwal, Sowjhanya Shankaran, Siddharth Satija, Abhinav Sekhri and Nitika Khaitan, Advocates For Respondents: Aman Lekhi, ASG, Amit Mahajan ..... 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant said 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 mob was to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 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 will be relevant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 action taken by such individual or association (whether by committing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 than five years but which may extend to imprisonment for life, and shall also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 courts upon such provisions. A comparative chart of the bail provisions under such comparable legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances in a given situation. ( Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]) 11. The court while considering the application for bail with reference to Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (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 minimised. ... No seeker of justice shall play confidence tricks on the court or community. * * * * * 352. It is true that on many occasions, we have come across cases wherein the prosecution unjustifia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also been allegedly recovered. There is no discrepancy in the description of the ammunition. Thus, at this stage it is difficult to sustain the finding of the High Court that due to the discrepancies in the description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 Section 43-D(5) to demonstrate that the prosecution has not been able to show that there exist reasonable grounds to show that the accusation against him is prima facie true, does not alter the legal position expounded in K. Veeraswami [(1991) 3 SCC 655], to the effect that the charge-sheet need not contain deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2020 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; (iv) In the alternative it is submitted, that though the material on record does not even make-out the offence of engaging in any unlawful activity as defined in section 2(1)(o) and as punishable under section 13 of UAPA, even assuming that that issue is debatable, the harsh provisions against release on bail under section 43D(5) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and creating a general sense of fear and insecurity. (iv) Relying upon Kartar Singh (supra), it has been submitted that the proviso to section 43D(5) UAPA bars release on bail if, on perusal of the case diary or report under section 173 Cr.P.C., the court is of the opinion that there are reasonable grounds for believing that the accusations against such pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offence of conspiracy. It is further argued that it not necessary to prove that the parties actually came together and expressly agreed to have a common design; nor that they knew all details of the conspiracy, as long as the conspirators took several steps all towards the realisation of the object of conspiracy through a continued period of time, which it is urged, the record clearly show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 achieving the objective of widespread turmoil, for which reason at the meetings of 16.12.2019 and 17.12.2019, in which the appellant had also participated, it was decided to hold protests in an organised and planned way and for this purpose the JCC was constituted; which, it is alleged, used religious identity as the tool to achieve its objectives. To support this submission, attention of the court is invited to pages 2045, 2057-59, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry 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 the ill-boding intent of the secrecy of the real objective was apparent from the message of one of the co-conspirator/co-accused advising members from desisting sharing the real plans of conspirators in public. Reference in this regard was made to the portion of the subject charge-sheet extracted as Screenshot 15 in Annexure -B. (xxv) It is alleged that in pursuance of the object, the continued steps towards the shared intent is apparent from page 2210 of the subject charge-sheet, which po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. ... (xxxi) It is further argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owingly 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 argues that the reason for grant of bail in that case was long period of incarceration and unlikelihood of the trial being completed anytime in the near future ; and that in K.A. Najeeb (supra), the High Court had relied upon a judgment of the Hon'ble Supreme Court in Shaheen Welfare Association vs. Union of India and Ors. (1996) 2 SC 616, wherein it was held that no one can justify gross delay in disposal of cases when undertrial perforce remains in jail giving rise to possible situations that may justify invocation of Article 21 ; and that the Hon'ble Supreme Court did not interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or terrorise people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. A 'terrorist' activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls 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 grave emergent situation created either by external forces particularly at the frontiers of this country or by anti-nationals throwing a challenge to the very existence and sovereignty of the country in its democratic polity. (emphasis supplied) 33. Since the theme of section 15 is evidently the intent or likelihood of an act threatening (i) the security of the State, described variously in the section as unity, integrity, security, economic security, sovereignty and (ii) of striking terror, it is necessary to understand the concept and distinction between law and order , public order and security of the State , as eloquently explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legislature enacting it, other methods of extracting the meaning can be resorted to if the language is contradictory, ambiguous or leads really to absurd results so as to keep at the real sense and meaning. See (1) Salmond: Jurisprudence, 11th Edn. p. 152, (2) South Asia Industries (P) Ltd. v. S. Sarup Singh [AIR 1966 SC 346, 348] (AIR at p. 348), and (3) G. Narayanaswami v. G. Panneerselvam [(1972) 3 SCC 717] (SCC at p. 720). (emphasis supplied) 35. Illustrating what terrorist acts might be, in PUCL (supra), the Hon'ble Supreme Court says: 6. In all acts of terrorism, it is mainly the psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rorism 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 new breed of menace was hitherto unheard of. Terrorism is definitely a criminal act, but it is much more than mere criminality. Today the Government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within the borders. To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws. In the abovesaid circumstances Parliament felt that a new anti-terrorism law is necessary for a better future. This parliamentary resolve is epitomised in POTA. (emphasis supplied) 36. More recently in Yakub Abdul Razak Memon vs. State of Maharashtra through CBI, Bombay (2013) 13 SCC 1, the Hon'ble Supreme Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 128, quoted a passage from Stephen's Criminal Law of England, wherein he observed as follows: Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. This Court further observed that though all these offences involve disturbances of public tranquillity and are in theory offences against public order, the difference between them is only one of degree. The Constitution thus requires a line, perhaps only a rough line, to be drawn between the fields o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 give the expression a narrow meaning because, as has been observed, the expression in the interest of public order is very wide. (emphasis supplied) 38. In the same judgment observing that a court must always presume that a statute was within the legislative competence of the legislature that drafted it, the Hon'ble Supreme Court further says: 39. It is also a cardinal rule of interpretation that there shall always be a presumption of constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute within the competence of the State Legislature. (Reference may be made to Charanjit Lal Chowdhury v. Union of India [AIR 1951 SC 41], T.M.A. Pai Foundation v. State of Karnataka [ (2002) 8 SCC 481] and Karnataka Bank Ltd. v. State of A.P. [ (2008) 2 SCC 254]) (em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other hand, is to deal with terrorist and certain unlawful activities, which are committed with the intent to threaten the unity, integrity, security or sovereignty of India or with the intent to strike terror in the people or any section of the people in India or in any foreign country or relate to cessation or secession of the territory of India. * * * * * 77. The offence of terrorist act under Section 15 and the offence of unlawful activity under Section 2(1)(o) of UAPA have some elements in commonality. The essential element in both is the challenge or threat or likely threat to the sovereignty, security, integrity and unity of India. While Section 15 requires some physical act like use of bombs and other weapons, etc., Section 2(1)(o) takes in its compass even written or spoken words or any other visible representation intended or which supports a challenge to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 understanding. In criminal law, the legislature frequently uses vague expressions like 'bring into hatred or contempt', or 'maintenance of harmony between different religious groups', or 'likely to cause disharmony or ... hatred or ill will', or 'annoyance to the public' [see Sections 124-A, 153-A(1)(b), 153-B(1)(c), and 268 of the Penal Code]. These expressions, though they are difficult to define, do not elude a just application to practical situations. The use of language carries with it the inconvenience of the imperfections of language. 63. We see that the concepts aforesaid, namely, 'defence of India', 'security of India', 'security of the State' and 'relations of India with foreign powers', which are mentioned in Section 3 of the Act, are not of any great certainty or definiteness. But in the very nature of things they are diffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of being extended cavalierly to supplies, the maintenance of which is not essential to the community. To allow the personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21. * * * * * 67. We do not, however, propose to strike down the power given to detain persons under Section 3(2) on the ground that they are acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The reason for this is that it is vitally necessary to ensure a steady flow of supplies and services which are essential to the community, and if the State has the power to detain persons on the grounds mentioned in Section 3(1) and the other grounds mentioned in Section 3(2), it must also have the power to pass orders of detention on this particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 law must be strictly construed. * * * Therefore when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the law. With respect, we fully concur with the above perception for construing the provisions of the TADA Act (emphasis supplied) 43. In Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and Anr. (2005) 5 SCC 294, a 3-Judge Bench of the Hon'ble Supreme Court says: 23. Interpretation clauses contained in Sections 2(d), 2(e) and 2(f) are interrelated. An organised crime syndicate refers to an organised crime which in turn refers to continuing unlawful activity . As at present advised, it may not be necessary for us to consider as to whether the words or other unlawful means contained in Section 2(e) sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail shall consider the question from the angle as to whether he was possessed of the requisite mens rea.... (emphasis supplied) 44. To complete the analysis as regards the presumption of constitutionality of a statute, a brief reference may also be made to this presumption as explained succinctly in Shri Ram Krishna Dalmia Ors. vs. Shri Justice S.R. Tendolkar Ors. AIR 1958 SC 538, where a 5-Judge Bench of the Hon'ble Supreme Court says: 11. ...The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish-- ... (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the hist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests. 49. In Babulal Parate v. State of Maharashtra [AIR 1961 SC 884], this Court observed: (AIR p. 891, para 31) 31. The right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India. 50. In Kameshwar Prasad v. State of Bihar [AIR 1962 SC 1166] the Court was mainly dealing with the question whether the right to make a demonstration is protected under Articles 19(1)(a) and (b) and whether a government servant is entitled to this right. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or meeting can be held. If, therefore, the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open-air meetings in any large city. The real problem is that of reconciling the city's function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks, with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public assembly. The assumption made by Justice Holmes is that a city owns its parks and highways in the same sense and with the same rights as a private owner owns his property with the right to exclude or admit anyone he pleases. That may not accord with the concept of dedication of public streets and parks. The parks are held for public and the public streets are also held for the public. It is doubtless true that the State or local authority can regulate its property in order to serve its public purposes. Streets and public parks exist primarily for other purposes and the social interest promoted by untrammelled exercise of freedom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fast-unto-death and do or die is no jural anathema . It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution. 13. Notwithstanding above, it is also to be borne in mind that the aforesaid rights are subject to reasonable restrictions in the interest of the sovereignty and integrity of India, as well as public order. It is for this reason, the State authorities many a times designate particular areas and routes, dedicating them for the purpose of holding public meetings. * * * 15. Thus, while on the one hand, citizens are guaranteed fundamental right of speech, right to assemble for the purpose of carrying peaceful protest processions and right of free movement, on the other hand, reasonable restrictions on such right can be put by law. Provisions of IPC and CrPC, discussed above, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith nonstop slogans, even at odd hours, at night, and that too with the use of loudspeakers, etc. The authorities could have ensured that such slogans are within the parameters of noise pollution norms and there are no shoutings or slogans at night hours or early morning hours. Again, these dharnas, agitations and processions could be prohibited on certain occasions, for example, whenever some foreign dignitaries visit and pass through the said area or other such sensitive occasions. The authorities could also ensure that the protestors do not bring their trucks/buses, etc. and park those vehicles in and around the residential buildings; the protestors are not allowed to pitch up their tents and stay for days together; they are not allowed to bathe or wash their clothes using Delhi Jal Board tankers or defecate in the open, on pavements; and do not create any unhygienic situations. The authorities could also examine, while allowing such demonstration, as to the number of protestors who are likely to participate and could refuse permission to hold any such demonstration, etc. when the number is going to be abnormally large which, if allowed, would per se create hardships of various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act preparatory to commit a terrorist act'. At this point, we would remind ourselves that 'terrorist act', including conspiracy and act preparatory to the commission of a terrorist act, were brought within the purview of the UAPA by an amendment made in 2004, on the heels of the Parliament repealing POTA in the year 2004, TADA having already been repealed in 1995. Evidently therefore, the phrase 'terrorist act' must get its colour and flavour from the problem of terrorism as was earlier addressed by the Parliament under TADA and POTA. 48. Though, as seen above, the phrase 'terrorist act' has been defined in a very wide and detailed manner within section 15 itself, in our opinion, the court must be careful in employing the definitional words and phrases used in section 15 in their absolute literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of 'terrorist act', without understanding how terrorism is different even from conventional, heinous crime. 49. As observed by the Hon'ble Supreme Court in Hitendra Vishnu Thakur (supra), the extent and reach of terrorist activity must travel beyond the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together... (emphasis supplied) 53. Again, in Yakub Abdul Razak Memon (supra), the Hon'ble Supreme Court refers to acts of terrorism by saying that: ... Acts of terrorism can range from threats to actual assassinations, kidnappings, airline hijackings, bomb scares, car bombs, building explosions, mailing of dangerous materials, computer based attacks and the use of chemical, biological, and nuclear weapons--weapons of mass destruction (WMD) (emphasis supplied) 54. In our view therefore, notwithstanding the fact that the definition of 'terrorist act' in section 15 UAPA is wide and even somewhat vague, the phrase must partake of the essential character of terrorism and the phrase 'terrorist act' cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC. We remind ourselves of the principle laid down by the Constitution Bench of the Hon'ble Supreme Court in A.K. Roy (supra) where it said that the requirement that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity within its scope, was, and could only have had been, to deal with matters of profound impact on the 'Defence of India', nothing more and nothing less. Absent this, UAPA could not have been enacted by the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the 'Defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is alleged to have caused were restricted to North-East Delhi. It would therefore be a stretch to say that the protest affected the community at large for it to qualify as an act of terror; (g) In fact, from the extracts of the subject charge-sheet cited on behalf of the State, which are the most material allegations against the appellant, this court is able to discern only one specific, particular and overt act that the appellant is stated to have committed, namely that he handed over a SIM card given to him by someone else, to a co-conspirator/co-accused, which, it is further alleged, was used by the said co-accused to send messages on a WhatsApp group. Other than this one action that is specifically attributed to the appellant, this court is unable to discern any other act or omission attributed specifically to the appellant; (h) Furthermore, there is no allegation whatsoever that the arms, ammunition and other articles, that were supposedly to be used as weapons, were recovered from or at the instance of the appellant. In this context the provisions of section 43E of the UAPA may be noted, which contain a presumption against an accused person, to the effect that unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted position that the protest that is alleged to have been the culmination of the so-called conspiracy, in which inter alia the appellant participated, was neither banned nor outlawed. The protest was monitored by law enforcement agencies; and it is precisely by reason of disorderliness of the protest that the appellant is also an accused in another FIR bearing No. 298/2019 dated 16.12.2019, in which however the appellant has already been enlarged on bail vide order dated 28.05.2020 by the learned ASJ, Saket District Courts, New Delhi; (l) In the statutory framework of the now repealed TADA and POTA, before allowing a bail plea, the court was required to assess whether the accused person was 'not guilty' of the offence alleged; and therefore the burden was clearly on the defence to disprove the allegations on a prima facie basis. Correspondingly therefore, under section 43D(5) of the UAPA, where, before allowing a bail plea, the court is required to assess if the accusation against an accused is prima facie true, the burden to demonstrate the prima facie veracity of the allegation must fall upon the prosecution. The requirement of being satisfied that an accused is &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en or is likely to have shaken, the entire foundations of our Republic, we feel compelled to discuss what might be the permissible contours of a protest that would not threaten our nation. 63. In this context we examined, when, the constitutionally guaranteed right to protest, which derives from the rights under Article 19(1)(b) of the Constitution to assemble peaceably and without arms , crosses the line and ventures into commission of a cognizable offence under the ordinary penal law; and even more so, when, the right to protest further crosses into the territory of becoming a terrorist act or a conspiracy or an act preparatory to commission of a terrorist act under the UAPA. 64. The observations of the Hon'ble Supreme Court in Mazdoor Kisan Shakti Sangathan (supra) appear to us to be the most lucid and pithy answer as to the contours of legitimate protest and these bear repetition. In the said decision the Hon'ble Supreme Court says that legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, people have the right to express thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations, that is to say allegations other than those sought to be spun by mere grandiloquence, contained in the subject charge-sheet that would make-out the ingredients of the offences under sections 15, 17 or 18 UAPA. Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation. Wanton use of serious penal provisions would only trivialise them. Whatever other offence(s) the appellant may or may not have committed, at least on a prima facie view, the State has been unable to persuade us that the accusations against the appellant show commission of offences under sections 15, 17 or 18 UAPA. 67. On another note, the learned ASG has attempted to distinguish the decision of a 3-Judge Bench of the Hon'ble Supreme Court in K.A. Najeeb (supra), submitting that that decision came to be made in the backdrop of an extended period of incarceration of the accused person as an undertrial and there being no likelihood of the trial being completed in a reasonable time. This, the learned ASG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e NIA Act, the High Court would be constrained by the restrictive power for bail under section 437 Cr.P.C., in our view, does violence both to the express wording of section 437 Cr.P.C. as also to the wider powers of the High Court with regard to bail under section 439 Cr.P.C. It requires to be noticed that section 439 Cr.P.C. in so many words applies to a Court other than the High Court or Court of Sessions . These words in section 437 Cr.P.C. cannot be deemed to have been amended by any provision of the NIA Act or the UAPA. Moreover, it does not appeal to our sense of reason, that when dealing with a bail plea in an appeal under section 21 of the NIA Act, the High Court would be bereft of its own powers under section 439 Cr.P.C., or absent even those powers, would be unable to act ex debito justitiae in exercise of its inherent powers under section 482 Cr.P.C. In our view therefore, regardless of the fact that the present case arises as an appeal under section 21 of the NIA Act, since the additional constraints of section 43D(5) of UAPA do not apply, this court would be entitled to consider the matter of bail on the touchstone of the provisions of section 439 Cr.P.C. 70. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge. 10. In Masroor v. State of U.P. (2009) 14 SCC 286, while giving emphasis to ascribing reasons for granting of bail, however, brief it may be, a two-Judge Bench observed that: (SCC p. 290, para 15) 15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. 11. In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 it has been observed that (SCC p. 499, para 9) normally this Court does not interfere with an order passed by the High Court granting or rejecting the bail of the accused, however, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. 9. ... among other cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charge and the severity of the punishment should be taken into consideration. * * * * * 46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI. (emphasis supplied) 73. Most recently, in P. Chidambaram vs. CBI the Supreme Court has held: 22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the category of grave offence and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in case F.I.R. No. 298/2019 dated 16.12.2019 vide order dated 28.05.2020 made by the learned Sessions Court; and in our view there also appears to be an overlap between the so-called larger conspiracy, acts and omissions alleged against the appellant in the said other FIR and in the subject FIR from which the present appeal arises. While the presence of the appellant for purposes of trial must be secured, there is no material or basis to suspect; nor is there any reasonable apprehension that the appellant will tamper with evidence or intimidate witnesses. As very pithily put by the Hon'ble Supreme Court in P. Chidambaram (supra) 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. On the other hand, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1987 Maharashtra Control of Organised Crime Act, 1999 Prevention of Terrorism Act, 2002 Unlawful Activities (Prevention) Act, 1967 S. 37(1) S. 20(8) S. 21(4) S. 49(6)-(7) S. 43-D(5) 37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 20. Modified application of certain provisions of the Code. -- … (8) Notwithstanding anything contained in the Code, no person accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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