UAPA - Bail Can’t Be Denied Merely Because Allegations Are Serious If There Is No Prima Facie Case: P&H HC

While according paramount importance to the sacrosanct liberty of an individual even of the accused, the Punjab and Haryana High Court in a most learned, laudable, landmark and latest judgment titled Gursewak Singh vs State of Punjab in CRA-D No. 454 of 2021 (O&M) and cited in Neutral Citation:2023:PHHC:143731-DB and also cited in 2023 LiveLaw (PH) 233 that was reserved on 12.09.2023 and then it was finally pronounced also on 09.11.2023 has granted bail to a man booked under stringent Unlawful Prevention of Activities Act (UAPA), observing that there was no prima facie case made out in the case for allegedly planning to commit some terrorist acts based on relations with Pakistan. While taking a very balanced, sagacious and nuanced approach, the Division Bench comprising of Hon’ble Ms Chief Justice Ritu Bahri who is Acting Chief Justice and Hon’ble Mrs Justice Manisha Batra clearly stated that, "On the basis of allegations as levelled against the appellant, prima facie no case can be stated to have been made out to presume that there had been any conspiracy between the appellant and the co-accused to form membership of a terrorist gang and to commit acts against the interest of the nation." The Court also maintained that, "The statute of UAPA Act has stringent provisions but that makes the duty of the Court to be more onerous and it is well settled that merely because allegations were serious, on that reason alone, bail cannot be denied." Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mrs Justice Manisha Batra for a Division Bench of Punjab and Haryana High Court comprising of Hon’ble Ms Chief Justice Ritu Bahri who is Acting Chief Justice and herself sets the ball in motion by first and foremost putting forth in para 1 that, "The instant appeal has been preferred against order dated 22.02.2021 passed by learned Special Judge, Amritsar in case bearing FIR No.04 registered on 15.03.2020 under Sections 379-B, 382, 399, 402, 411, 467, 468, 472, 473 IPC, Sections 15, 16, 17, 18, 18B of Unlawful Activities (Prevention) Act, 1967 (For short "UAP Act"), Section 25 sub sections 6, 7 and 8 of Arms Act and Section 52/54 of Prisons Act, at Police Station SSOC, Amritsar whereby the bail application filed by the present appellant for grant of regular bail under Section 439 of Cr.P.C., had been dismissed."

To put things in perspective, the Division Bench then envisages in para 2 that, "The brief facts of the case relevant for the purpose of disposal of this appeal are that the aforementioned FIR was registered on the basis of a secret information received by DSP Harminder Singh, Police Station, Organized Crime Control Unit (For short "OCCU") Amritsar on 15.03.2020 to the effect that the accused Sikander Singh who was having criminal antecedents and was wanted in many cases, had formed a gang with co-accused Amritpal Singh Bhullar, Manoj Thakur alias Kaka Pehalwan, the present appellant Gursewak Singh and some other persons who were also having criminal antecedents and were wanted in cases of murder, attempt to murder, robberies, extortion and theft etc. As per the information, all these accused were having with them dangerous weapons and ammunitions. They were having relations with enemy country Pakistan through mobile phones, wireless sets and other technological instruments and were hatching plans to commit some terrorist acts in different places in the country thereby trying to disturb the peace of the country and further that they were trying to get released from police custody, the accused Gagandeep Singh and Pardeep Singh. On the basis of this information, a case was registered and investigation proceedings were initiated. On the same day, the accused Manoj Thakur @ Kaka Pehalwan and Sikander Singh were arrested. Several arms and ammunitions were recovered from them. Co-accused Amritpal was arrested on 17.03.2020. On interrogation, he suffered disclosure statement to the effect that he along with the present appellant and other accused had robbed 30 kg of gold from IIFL Gold Loan Branch, Gill Road, Ludhiana. The co-accused Gagandeep Singh and Pardeep Singh were arrested and recoveries of arms and ammunitions were effected from them."

As we see, the Division Bench then discloses in para 3 that, "The appellant-accused Gursewak Singh who was already in custody in a case registered at Police Station Mohali was joined into the investigation of this case and arrested on 05.07.2020. A .32 bore pistol and some cartridges were already got recovered by him in a case registered at Police Station Mohali. After completion of necessary investigation and usual formalities, challan under Section 173 Cr.P.C. was presented against the accused. Subsequently, supplementary challan under Section 173 (8) of Cr.P.C. was presented before the Special Court after obtaining sanction for prosecution of the accused persons from competent authority. The present appellant moved an application for regular bail before learned Special Court which was dismissed vide order dated 22.02.2021. It is important to mention here that the present appellant had filed appeal against order dated 22.02.2021 as well as against the order passed by learned Special Court thereby dismissing his request for grant of default bail under Section 167 (2) Cr.P.C. before a Coordinate Bench of this Court. Vide order dated 26.04.2022, the said appeal had been dismissed. The appellant had filed petition for Special Leave to Appeal (Criminal) No.10755 of 2022 before Hon’ble the Supreme Court challenging the order of the Coordinate Bench and Hon’ble the Supreme Court had set aside the abovesaid order on 22.03.2023 and remanded the matter to this Court with a direction to decide this appeal on its own merits and that is how this appeal has been restored and has come up before us."

It cannot be glossed over that the Division Bench points out in para 8 that, "The appellant along with other accused in this case has been booked and charge-sheeted for commission of offences punishable under Sections 16, 17, 18, 18B of UAP Act read with Sections 379-B, 411, 399, 402 and 473 of IPC, Section 25 of Arms Act and Section 52/54 of Prisons Act. The offences under the provisions of UAP Act qua which charges have been framed against him are covered under Chapter IV of the UAP Act. As per Section 45 of this Act, no Court shall take cognizance of any offence falling under Chapter IV without previous sanction of the Central Government or as the case may be, the State Government. Admittedly, the sanction for prosecution of the appellant and co-accused in this case had not been granted by the competent authority till the date of presentation of the challan and it was accorded later and then the said sanction is shown to have been filed in the Court along with supplementary challan report. It is, therefore, debatable as to whether the Court was even competent to take cognizance of the offences punishable under Sections 16, 17, 18 and 18B of UAP Act till the date when sanction was granted under Section 45 of UAP Act."

It is worth noting that the Division Bench then succinctly notes in para 9 that, "Further, the appellant is shown to have been booked and chargesheeted for commission of offences punishable under different provisions of UAP Act on the basis of investigation and disclosure statements stated to be suffered by the co-accused and it is the case of the prosecution that during interrogation, the co-accused Amritpal Singh Bhullar had disclosed that the appellant, co-accused and himself were operating a gang that was involved in anti national activities. From the contents of the challan report and other accompanying documents, no specific role is shown to have been attributed by the prosecution to the appellant in the activities which have allegedly amounted to commission of offences punishable under Sections 16, 17, 18 and 18B of UAP Act and this position could not be rebutted even by learned State counsel while rendering arguments. No material has been brought forward by the prosecution to show the connection of the present appellant with the foreign contacts with which he along with co-accused is alleged to be involved in promoting the anti national activities."

Most significantly, the Division Bench then expounds in para 10 holding that, "Further, from a perusal of the material placed on record, no specific and active role is shown to have been attributed to the present appellant qua commission of offences punishable under the provisions of IPC and Arms Act (for which he has been charge-sheeted). He is in custody w.e.f. 05.07.2020. Only 1 out of 38 witnesses have been examined so far. No recovery whatsoever had been effected from the appellant in this case and one revolver and ten live cartridges were allegedly recovered from him in another case which was registered prior to this case at Police Station Mohali. On the basis of allegations as levelled against the appellant, prima facie no case can be stated to have been made out to presume that there had been any conspiracy between the appellant and the co-accused to form membership of a terrorist gang and to commit acts against the interest of the nation. The statute of UAP Act has stringent provisions but that makes the duty of the Court to be more onerous and it is well settled that merely because allegations were serious, on that reason alone, bail cannot be denied. Reference in this regard can be made to recent pronouncement of Hon’ble Supreme Court in Vernon v. The State of Maharashtra and another, 2023 (4) R.C.R. (Criminal) 47, wherein similar observations were made."

Further, the Division Bench directs in para 11 that, "Keeping in view the fact that the appellant is in custody for a period of about three and half years, that the trial is likely to take time and the entire attendant circumstances of the case, in our opinion, the appeal deserves to be allowed. The same is accordingly allowed. The impugned order dated 22.02.2021 as passed by learned Special Court is set aside and it is ordered that the appellant be produced before the learned Special Court within ten days from today to enable him to seek bail by furnishing personal as well as surety bond to the satisfaction of the learned Special Court. It is further directed that the appellant shall report to the Local Police Station after every fortnight before the concerned SHO to ensure that his whereabouts are ascertainable."

For the sake of clarity, the Division Bench clarifies in para 12 that, "It is, however, made clear that the observations made above will have no bearing on the merits of the case and are only relevant for the purpose of granting regular bail to the appellant."

All told, we thus see that the Punjab and Haryana High Court has made it indubitably clear that bail just can’t be denied merely because allegations are serious if there is no prima facie case. The Court has thus rightly, robustly and rationally struck to the time tested legal maxim that, "Bail is the rule and Jail is the exception." No denying it!