2024 Supreme(SC) 104

SUPREME COURT OF INDIA
M.M. SUNDRESH, ARAVIND KUMAR, JJ.
Gurwinder Singh – Appellant
Versus
State of Punjab and Another – Respondents
Criminal Appeal No. 704 of 2024, Special Leave Petition (Criminal) No. 10047 of 2023
Decided On : 07-02-2024

IMPORTANT POINTS
(1) Bail application – Exercise of general power to grant bail under UAP Act is severely restrictive in scope – In dealing with bail applications under UAP Act, courts are merely examining if there is justification to reject bail.
(2) Bail – Mere delay in trial pertaining to grave offences cannot be used as a ground to grant bail.

Headnote:

(A) Unlawful Activities (Prevention) Act, 1967 – Section 43-D(5) – Criminal Procedure Code, 1973 – Section 439 – Bail application – Membership of terrorist organisation – Investigation revealed that accused persons received funds through illegal means sent by members of banned terrorist organization “Sikhs For Justice”, those funds were channelled through illegal means such as “Hawala” and were sent to be used for furthering separatist ideology of demanding a separate State for Sikhs called “Khalistan”, and to carry out terror activities and other preparatory acts to spread terror in India – Prima facie involvement of Appellant has cropped up in disclosure statement of co-accused – Proviso to Sub-section (5) of Section 43D puts complete embargo on powers of Special Court to release accused on bail – Conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that discretion of Courts must tilt in favour of 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 UAP Act – Exercise of general power to grant bail under UAP Act is severely restrictive in scope – Courts are burdened with a sensitive task on hand – In dealing with bail applications under UAP Act, courts are merely examining if there is justification to reject bail – Justifications must be searched from case diary and final report submitted before Special Court – Bail must be rejected as a ‘rule’, if after hearing Public Prosecutor and after perusing final report or Case Diary, Court arrives at a conclusion that there are reasonable grounds for believing that accusations are prima facie true. (Paras 17, 18, 19 and 20)

(B) Criminal Procedure Code, 1973 – Section 439 – Unlawful Activities (Prevention) Act, 1967 – Section 43-D(5) read with Sections 17, 18 and 19 – Bail application – Indulgence in terror activities – It is only if test for rejection of bail is not satisfied that Courts would proceed to decide bail application in accordance with ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence) – Charges in present case reveals involvement of a terrorist gang which includes different members recruited for multiple roles – Mere fact that 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 – Material available on record indicates involvement of 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 in such a scenario if appellant is released on bail there is every likelihood that he will influence key witnesses of case which might hamper process of justice – Mere delay in trial pertaining to grave offences cannot be used as a ground to grant bail – Material on record prima facie indicates complicity of accused as a part of conspiracy since he was knowingly facilitating commission of a preparatory act towards commission of terrorist act under Section 18 of UAP Act – Bail application of Appellant rejected. (Paras 31, 32, 33 and 34)

Facts of the case:

Present appeal impugns order dated 24.04.2023 passed by High Court of Punjab and Haryana at Chandigarh in CRA-D No. 144 of 2022 (O&M) whereby High Court has upheld order dated 16.12.2021 passed by Special Judge, NIA Court, SAS Nagar, Mohali in an application filed under Section 439 of the Code of Criminal Procedure, 1973 filed by Appellant herein along with other co-accused seeking regular bail in NIA Case RC.19/2020/NIA/DLI, registered under Sections 124A, 153A, 153B, 120-B of the Indian Penal Code, 1860, Section(s) 17, 18, 19 of Unlawful Activities (Prevention) Act, 1967 (UAP Act) and Sections 25 and 54 of Arms Act, 1959, which came to be rejected. Vide impugned order High Court rejected grant of bail to Appellant on the ground of seriousness of nature of offence and that none of protected witnesses had been examined.

Findings of Court:

Bail application of Appellant is rejected and consequently the appeal fails. Any observation made here is only for the purpose of deciding present bail application and same shall not be construed as an expression on merits of matter before trial court.

Result : Appeal dismissed.