Supreme Court held that mere delay in trial pertaining to grave offences cannot be used as a ground to grant bail. Accordingly, bail application of appellant accused under Unlawful Activities (Prevention) Act, 1967 rejected.
Facts- The present appeal impugns the order dated 24.042023 passed by the High Court of Punjab and Haryana at Chandigarh in CRA-D No. 144 of 2022 (O&M) whereby the High Court has upheld the order dated 16.12 2021 passed by the Special Judge, NIA Court, SAS Nagar, Mohali in an application filed u/s. 439 of the Code of Criminal Procedure, 1973 (Cr.P.C) filed by the Appellant herein-Gurwinder Singh along with other co-accused seeking regular bail in NIA Case RC.1 9/2020/NIA/DLI, registered under Sections 124A, 153A, 153B 120-B of the Indian Penal Code, 186 (IPC)Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act 1967 (UAP Act) and Sections 25 and 54 of the Arms Act, 1959, which came to be rejected.
Conclusion- Held that the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
1. Leave granted.
2. The present appeal impugns the order dated 24.042023 passed by the High Court of Punjab and Haryana at Chandigarh in CRA-D No. 144 of 2022 (O&M) whereby the High Court has upheld the order dated 16.12 2021 passed by the Special Judge, NIA Court, SAS Nagar, Mohali in an application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C) filed by the Appellant herein-Gurwinder Singh along with other co-accused seeking regular bail in NIA Case RC.1 9/2020/NIA/DLI, registered under Sections 124A, 153A, 153B 120-B of the Indian Penal Code, 186 (IPC)Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act 1967 (UAP Act) and Sections 25 and 54 of the Arms Act, 1959, which came to be rejected.
3. The factual matrix relevant to dispose the present petition are summarized as under
3.1 On 19.10.2018, Sh. Varinder Kumar, Inspector, CIA Staff, received secret information that two persons are hanging cloth banners on which “Khalistan Jindabad” and “Khalistan Referendum 2020”, was written, at Pillars Kot Mit Singh Flyover, Amritsar. The Police team apprehended one Sukhraj Singh @ Raju and Malkeet Singh @ Meetu on the spot and a case was registered vide FIR No.152 dated 19.10.2018 under section(s) 124A, 153A, 153B and 120B of IPC against both the arrested accused. During the course of Investigation, entire module of the banned terrorist organization named “Sikh for Justice” was busted and other accused persons involved in the said module namely, Bikramjit Singh @ Vicky, Manjit Singh @ Manga, Jatinder Singh @ Goldy, Harpreet Singh @ Happy, Gurwinder Singh @ Gurpreet Singh @ Gopi-the present Appellant, Harmeet Singh @ Raju, Roofel @ Raful @ Rahul Gill, Sukhmander Singh @ Gopi and Kuldeep Singh @ Kuldip Singh @ Keep were arrested by Punjab Police.
3.2 The investigation was completed and final report was presented on 16.04.2019 before the Trial Court against eleven accused persons under Sections 117, 112, 124A, 153A, 153B, 120-B of IPC, Sections 17, 18, 19 of UAP Act and Section 25 of Arms Act. On further investigation, the police submitted supplementary reports.
3.3 Due to degree of severity in the charges involved, the investigation in the present matter was transferred to the National Investigation Agency (NIA), which took over the investigation of this case as per the directions of Government of India, Ministry of Home Affairs issued vide Order F.No.1 101 1/30/2020/NIA dated 04.04.2020 and registered the original case as RC.1 9/2020/NIA/DLI dated 05.04.2020. 3rd supplementary chargesheet was filed by NIA dated 18.12.2020 and Charges were framed by the Learned Special Judge, NIA Punjab on 09.12.2021.
3.4 The investigation revealed that the accused persons received funds through illegal means sent by members of the banned terrorist organization “Sikhs For Justice”, those funds were channeled through illegal means such as “Hawala” and were sent to be used for furthering separatist ideology of demanding a separate State for Sikhs popularly called “Khalistan”, and to carry out terror activities and other preparatory acts i.e., attempts to procure weapons to spread terror in India in furtherance of such separatist movement. The investigation further revealed the hand of an ISI handler named Javed Khan, to be behind the operations of this module busted by Punjab Police and NIA.
3.5 The prima facie involvement of the present Appellant has cropped up in the disclosure statement of the co-accused Bikramjit Singh @ Vicky (Accused No. 3) recorded on 09.06.2020 while he was in the custody of NIA.
3.6 The said disclosure statement revealed that on 08.07.2018, the Appellant herein-Gurwinder Singh accompanied Bikramjit Singh (Accused No. 3) and Harpreet Singh @Happy (Accused No.7) to Srinagar in a car where they had planned to purchase a pistol. There they met Sandeep Singh @ Sana and further went to a JK-Li Camp in Srinagar. Sandeep Singh entered the Army camp and after half an hour he came out and stated that pistol was not available. Then they came back to Gurudwara Sahib, where Sandeep offered them to purchase RDX instead, but they declined and all three returned back to Punjab, where Bikramjit Singh (Accused No. 3) was dropped off mid-way at Jandialaguru while both, the present Appellant and Harpreet Singh @ Happy, returned back to their village in Punjab.
3.7 The Appellant’s disclosure statement recorded on 12.06.2020 revealed a similar story as that of Bikramjit Singh. The Appellant stated that he and Harpreet Singh were childhood friends. In the 1st week of July 2018, Harpreet proposed to visit Srinagar for Religious Service and asked the Appellant to accompany. The Appellant in his disclosure statement further stated that he initially denied to go with them however later agreed to accompany them when Harpreet Singh continuously insisted him.
3.8 The trial court vide its order dated 16.12.2023 in CIS No.BA/2445/202 1 dismissed the Appellant’s bail application under Section 439 CrPC on the ground that there were reasonable grounds to believe the accusation against the Appellant to be true. The said order was impugned by way of an appeal before the High Court of Punjab and Haryana and meanwhile on 10.04.2023, 4th supplementary charge sheet was filed by NIA along with the List of witnesses and list of documents.
3.9 Vide the Impugned order the High Court rejected the grant of bail to Appellant on the ground of seriousness of the nature of offence and that none of the protected witnesses had been examined.
SUBMISSION ON BEHALF OF THE PARTIES
4. The Learned Senior Counsel, Mr. Colin Gonsalves, appearing on behalf of the Appellant made the following submissions in support of the Appellant’s bail application:
5. Mr. Gonsalves, learned Senior Counsel contended that the Appellant has been denied bail by the Hon’ble High Court and the Ld. Special Judge by relying upon the disclosure statement of Bikramjit Singh alias Vicky and argued that the said disclosure statement cannot be used to implicate the present Appellant.
6. Learned Senior Counsel further raised contentions about the lack of scrutiny of the Appellant’s mobile phone, marked as M-4 to indicate that the phone number did not belong to the Appellant. He argued that the absence of incriminating conversations in the Communication Data Records (CDR) related to the Appellant’s phone supports the case for bail. He further contended that the Appellant has been in custody since the last Five years facing charges of UA Act which is contrary to the law laid down in KA Najeeb v. Union of India.’
7. He further submitted that only 19 out of 106 witnesses have been examined in the last five-year period. He also drew our attention to terror funding chart to demonstrate that the name of the Appellant does not find place in the same. Mr. Gonsalves also questioned the omission of the alleged main conspirator, Nihal Singh, as an accused, emphasizing that the Appellant did not procure any weapons.
8. He further sought our attention to the 4th supplementary chargesheet, aimed at establishing a funding link with ISI, to illustrate the Appellant’s exclusion from relevant documentation. Lastly, he stated that out of Nine protected witnesses that have been examined, eight have not mentioned the name oIAppellant. Hence, he prayed to set aside the impugned order and grant bail to the Appellant.
9. Per contra, Mr. Suryaprakash V. Raju, learned Additional Solicitor General, on behalf of the Respondent, submitted that there is sufficient evidence on record to prove the incriminating role other Appellant and the same is revealed by the statements of Protected witnesses.
10. He further submitted that the Appellant-accused along with co-accused Bikarmjit Singh @ Vicky (Accused No. 3) were involved in the activities of “Sikhs for Justice”, a banded terrorist organisation, whose chief proponent is Gurpatwant Singh Pannu (Accused No . 12) and Bikramjit Singh @ Vicky (Accused No. 3) had asked their known persons to arrange weapons from Kashmir. In furtherance of their activities to procure arms and ammunition, the Appellant-accused along with co-accused Bikarmjit Singh @ Vicky and Harpreet Singh @ Happy (Accused No. 7) had visited
11. He further submitted that Appellant in his voluntary disclosure statement admitted that on gaining knowledge of purpose of visit to Srinagar, he voluntarily continued the journey. In fact the Appellant suggested an alternative to the co-accused and advised them to procure the weapon from Western Uttar Pradesh.
12. Further, he submitted that the provisions of section 43D(5) of Unlawful Activities (Prevention) Act, 1967 are completely applicable in this case and as such the High court has rightly denied bail to the Appellant-accused.
13. He also contended that the case is presently under trial and so far 22 witnesses have been examined. The accused is facing charges of grave nature pertaining to crimes that are not attributable to an individual but members of a terrorist gang operating at the behest of Gurpatwant Singh Pannu (Accused No. 12), a proscribed terrorist. If the Appellant is released on bail, there is every likelihood that he will influence the key witnesses of the case hampering the process of justice. Hence, he prayed that the bail petition should be rejected.
DISCUSSION AND CONCLUSION
14. We have heard the learned counsel on behalf of both the parties and have perused the records of the case The present case involves the charges under the UA Act along with other charges under the IPC and Arms Act therefore, it is apt to consider the bail provision envisaged under section 43D of the UA Act before we delve to analyze the facts
Bail under UAP Act: Section 43D (5)
15. In the course of oral argument, both sides have laid great emphasis on the interpretation of section 43D(5) of the 1967 Act. We will begin our analysis with a discussion on the scope and limitations of bail under Section 43D(5 ) UA Act
We shall extract Section 43D(5) for easy reference:
“Section 43D – Modified application of certain provisions of the Code
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.
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.
(7) Notwithstanding anything contained in Sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorizedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.”
16. The source of the power to grant bail in respect of non-bailable offences punishable with death or life imprisonment emanates from Section 439 CrPC. It can be noticed that Section 43D(5) of the UA Act modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UA Act
17. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, ‘An ‘on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure’, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5 ) of the UA Act In that sense the language of bail limitation adopted therein remains unique to the UAP Act.
18. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase – ‘bail is the rule, jail is the exception’ – unless circumstances justify otherwise – does not find any place while dealing with bail applications under UA Act The ‘exercise’ of the general power to grant bail under the UA Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5 )– ‘shall not be released’ in contrast with the form of the words as found in Section 437(1 ) CrPC – ‘may be released’ – suggests the intention of the Legislature to make bail, the exception and jail, the rule.
19. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The ‘justifications’ must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, ‘prima facie standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of ‘strong suspicion , which is used by Courts while hearing applications for ‘discharge’ In fact the Supreme Court in Zahoor Ali Watali2 has noticed this difference, where it said:
“In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.”
20. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied – that the Courts would proceed to decide the bail application in accordance with the ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence). This position is made clear by Sub-section (6) of Section 43D , which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.
21. On a textual reading of Section 43 D(5) UAP Act the inquiry that a bail court must undertake while deciding bail applications under the UA Act can be summarised in the form of a twin-prong test:
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offence under Chapter IV or VI of the UAP Act
1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)?
On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself :
2.1 Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused tampering with the evidence?
2.3 Whether there is apprehension of accused influencing witnesses?
22. The question of entering the ‘second test’ of the inquiry will not arise if the ‘first test’ is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the ‘tripod test’
Test for Rejection of Bail: Guidelines as laid down by Supreme Court in Watali’s Case
23. In the previous section, based on a textual reading, we have discussed the broad inquiry which Courts seized of bail applications under Section 43D(5) UA Act r/w Section 439 CrPC must indulge in. Setting out the framework of the law seems rather easy, yet the application of it, presents its own complexities For greater clarity in the application of the test set out above, it would be helpful to seek guidance from binding precedents. In this regard, we need to look no further than Watali’s case which has laid down elaborate guidelines on the approach that Courts must partake in, in their application of the bail limitations under the UA Act On a perusal of paragraphs 23 to 29 and 32, the following 8-point propositions emerge and they are summarised as follow
24. It will also be apposite at this juncture to refer to the directions issued in Devender Gupta v. National Investigating Agency3 wherein a Division Bench of the High Court of Andhra Pradesh strove to strike a balance between the mandate under Section 43D on one hand and the rights of the accused on the other. It was held as follows:
“The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is “prima facie true“:
1) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the act;
2) Whether the accused was convicted of the offenses involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities;
3) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the accused;
4) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the accused, at or around the scene of occurrence; and
5) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies.”
25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation Agency4 the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay Karol) while dealing with the bail application for the offence of supporting and raising funds for terrorist organization under section 39 and 40 of the UAP Act relied upon NIA v. Zahoor Ahmad Shah Watali5 and observed that:
“while dealing with the bail petition filed by the accused against whom offences under chapter IV and VI of UAPA have been made, the court has to consider as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. The bench also observed that distinction between the words “not guilty” as used in TADA, MCOCA and NDPS Act as against the words “prima facie” in the UAPA as held in Watali’s Case (supra) to state that a degree of satisfaction required in the case of “not guilty” is much stronger than the satisfaction required in a case where the words used are “prima facie”
26. In the case of Sudesh Kedia v. Union of India6 the Bench of Justice Nageswara Rao and Justice S. Ravindra Bhat while dealing with a bail application for the offence u/s. 17, 1 8 and 21 of the UA Act relied upon the principle propounded in UAP Act and observed that:
“the expression “prima facie” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows that complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted.’
27. In the light of these guiding principles, we shall now proceed to decide whether the additional limitations found in Section 43D(5) UA Act are attracted in the facts of the present case In other words, we shall inquire if the first test (as set out above), i.e., test for rejection of bail, is satisfied. For this purpose, it will, firstly have to be examined whether the allegations/accusations against the Appellants contained in charge-sheet documents and case diary, priLP11Pcie, disclose the commission of an offence Section 17,18 and 19 of the UA Ac
Section 17 of the UAP Act states:
17. Punishment for raising funds for terrorist act. —Whoever, in India or in a foreign country, directly or indirectly, raises or collects funds or provides funds to any person or persons or attempts to provide funds to any person or persons, knowing that such funds are likely to be used by such person or persons to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such 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.
Section 18 of the UAP Act states:
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.
Section 19 of the UAP Act states:
19. Punishment for harbouring, etc.—Whoever voluntarily harbors or conceals, or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine: Provided that this section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.’
28. Having examined the provisions of law, let us now consider the material available on record to ascertain whether the case of the Appellant satisfies the tests as mentioned herein above.
29. The Appellant’s counsel contended that the Appellant’s mobile phone has not undergone scrutiny, and therefore, no conclusive connection to the charged offenses could be established. However, the scrutiny report of Bikramjit Singh @ Vicky’s (Accused No. 3) mobile phone, marked as M-5 reveals at serial no. 10, that the present Appellant was in communication with Accused No.3 multiple times. The Call Detail Records (CDRs) unveils a consistent pattern of communication between the Appellant and Bikramjit Singh (Accused No.3) even prior to their trip to Srinagar for procurement of weapons. Detailed scrutiny of the CDR indicates that the Appellant had engaged in communication with Bikramjit Singh (Accused No.3) approximately 26 times, spanning from June 22, 2018 to October 19, 2018, the day of his arrest.
30. The Appellant’s counsel has objected to the denial of bail by the High Court and Special Court upon relying on the disclosure statements of Bikarmjit Singh @ Vicky (Accused No.3) and the Appellant himself. Accused No.3 in his disclosure statement (Annexure P3) has stated that on 08.07 2018, he along with Harpreet Singh @ Happy and Gurwinder Singh @ Gurpreet Singh Gopi (the present Appellant) went to Srinagar for the purchase of pistol which was sought to be used by them to take Nevenge of the Sacrilege of Guru Grant Sahib. Further, the disclosure Statement of the present Appellant (Annexure P4) corroborated the disclosure Statement of Accused No.3 wherein he stated that he went with Accused No.3 and Harpreet Singh @ Happy to Srinagar. Though the present Appellant has taken the stance of not knowing the purpose of the visit to Srinagar, in his disclosure statement, he has admitted to the fact that he suggested both Bikramjit Singh (Accused No.3) and Harpreet Singh (Accused No.7) to purchase the weapon from western Uttar Pradesh.
31. The Appellant’s counsel has stated that in the terror funding chart the name of the Appellant does not find place. It is pertinent to mention that the charges in the present case reveals the involvement of a terrorist gang which includes different members recruited for multiplies. Hence, the mere fact that the accused has not received any funds or nothing incriminating was recovered from his mobile phone does not absolve him of his role in the instant crime
32. The Appellant’s counsel has relied upon the case of KA Najeeb (supra) to back its contention that the appellant has been Q jail for last five years which is contrary to law laid down L the said case While this argument may appear compelling at first glance, it lacks depth and substance. In KA Najeeb’s case this court was confronted with a circumstance wherein except the respondent-accused, other co-accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore this court’s decision to consider bail was grounded in the anticipation of the impending sentence that the respondent-accused might face upon conviction and since the respondent-accused had already served portion of the maximum imprisonment i.e. more than five years, this court took it as a factor influencing its assessment to grant bail. Further, in KA Najeeb’s case the trial of the respondent-accused was severed from the other co-accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore this court was of the view of unlikelihood of completion of trial in near future. However, in the present case the trial is already under way and 22 witnesses including the protected witnesses have been examined. As already discussed the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice.
Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted
33. Hence, we are of the considered view that the material on record prima facie indicates the complicity of the accused as a part of the conspiracy since he was knowingly facilitating the commission of a preparatory act towards the commission of terrorist act under section 18 of the UAP Act
34. For the aforementioned reasons the bail application of the Appellant is rejected and consequently the appeal fails. Needless to say, that any observation made hereinabove is only for the purpose of deciding the present bail application and the same shall not be construed as an expression on the merits of the matter before the trial court.