[Section 43D(5) UAPA] Supreme Court says embargo for grant of bail to apply subject to prima facie case in chargesheet

  • Aishwarya Iyer
  • 02:59 PM, 29 Oct 2021

The Supreme Court on Thursday said that the embargo for grant of bail under sub-section (5) of Section 43D, Unlawful Activities Prevention Act, 1967 will apply when after perusing charge sheet, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Noting that the stringent conditions for grant of bail mentioned in sub-section (5) of Section 43D would apply only to offences punishable only under Chapters IV and VI of the 1967 Act, a bench of Justices Ajay Rastogi and Abhay S Oka added that offence punishable under Section 13 being a part of Chapter III will not be covered by sub-section (5) of Section 43D and therefore, it will be governed by the normal provisions for grant of bail under the Code of Criminal Procedure, 1973.

Accordingly, the bench said,

"The proviso imposes embargo on grant of bail to the accused against whom any of the offences under Chapter IV and VI have been alleged. The embargo will apply when after perusing charge sheet, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, if after perusing the charge sheet, if the Court is unable to draw such a prima facie conclusion, the embargo created by the proviso will not apply."

These observations were made while upholding the order of the Special NIA Court at Ernakulam which was struck down by the Kerala High Court whereby two persons who "knowingly and intentionally, associated themselves and acted as members of Communist Party of India" were granted bail.

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 said, it has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true.

Justice Oka further remarked,

"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," and added that the grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds.

It clarified that while examining the prima facie case under sub-section (5) of Section 43D, the court "is not expected to hold a mini trial," and should not get into the merits/demerits of the evidence.

It also added a word of caution that while examining the chargesheet for existence of any prima facie case, "the Court has to take the material in the charge sheet as it is."

After analysing the evidence on record, the court took the view that, "mere association with a terrorist organisation was not sufficient to attract Section 38 and mere support given to a terrorist organisation was not sufficient to attract Section 39."

"The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet."

The court went on to note that at a formative young age, the accused might have been fascinated by what is propagated by CPI (Maoist).

Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there was no material in the charge sheet to project active participation of the accused in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation.

It was further found that the accused's constant association or support of the organization for a long period of time was also not borne out from the charge sheet.

Moreover, the Court pulled up the High Court for observing that the Special Judge has oversimplified the matter.

It added that the High Court did not notice that by taking the material collected during the investigation which forms a part of the charge sheet as it is, the Special Court had recorded a prima facie finding regarding the absence of any material to show intention on the part of the accused to further the activities of CPI (Maoist). 

With this view the Court has restored the bail granted by the special court and dismissed the appeal filed by Union of India.

Cause Title: Thwaha Fasal vs. Union of India