IMPORTANT POINT
The court reaffirmed that under Section 43-D(5) of the UAPA, bail can be denied in cases involving serious offenses related to terrorism, particularly when there is substantial evidence against the accused and a risk of absconding or witness tampering.

JUDGMENT :

Chakradhari Sharan Singh, J.

This is an appeal under Sub Section 4 of Section 21 of the National Investigation Act, 2008 (NIA Act), challenging the correctness of an order dated 09.06.2020, passed by the learned Special Judge, NIA, Patna in special case No. 10 of 2019 arising out of RC 05 of 2019, whereby the appellant's application for grant of regular bail has been rejected in view of the interdict contained in Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967.

2. Since in the present appeal, the appellant has questioned the legality of the impugned order passed by the learned Special Judge, we shall be addressing the submissions advanced on behalf of the appellant and the respondents, accordingly. From this Court's order-sheet and the records it transpires that the present appeal was filed in October, 2020 online, when there where COVID restrictions. The appeal was, however, defective, as pointed out by the Registry which were directed to be ignored in the light of an undertaking given on behalf of the appellant to remove them within ten days from the date of resumption of physical hearing in the Court, by an order dated 06.08.2021. By the said order, four weeks' time was allowed for the NIA to file a counter affidavit. Subsequent thereto, on 08.10.2021, the Court directed the case to be listed only after the defects were removed. The defects were subsequently removed, as is evident from the office note dated 14.07.2022. On 15. 07.2022, on a request made on behalf of the appellant, the matter was adjourned and was taken up on 19.07.2022. On 19.07.2022, following order was passed by a Co-ordinate Bench of this Court:-

Mr. Javed Gaffar Khan, learned counsel for the appellant and Mr. Manoj Kumar Singh, learned Special P.P. (hereinafter referred to as the ‘P.P.’) for the N.I.A. are present.

2. As prayed for by learned counsel for the N.I.A. for filing supplementary counter affidavit to bring on record materials which have come during trial to indicate the complicity of the appellant in the crime alleged, the matter be listed on 02.08.2022.

3. The case was subsequently taken up out of turn on 11.10.2022 for hearing an Interlocutory application (I.A. No. 02 of 2022) for provisional release of the appellant on bail, so as to enable him to perform the rituals connected with the demise of his mother. A Co-ordinate Bench of this court passed following order on 11.10.2022 on the said I.A. No. 02 of 2022:-

6. Having considered the submissions of learned counsel for the parties, let the appellant be released on provisional bail upon furnishing bail bond of Rs. 25,000/-(Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of the learned Special Judge, N.I.A., Patna in Special Case No. 10/2019, arising out of RC 05 of 2019. One of the bailors shall be the wife of the appellant-applicant. Having regard to the fact that the Chhath Puja is almost there, the appellant-applicant should surrender before the Court below latest by 01.11.2022 and copy of surrender certificate should be filed by 09.11.2022. The appellant shall keep the local police station informed of his movement while on provisional bail.

4. Two days thereafter the matter was again listed before the Co-ordinate Bench on a motion slip filed on behalf of the appellant for removal of certain typographical error in the order dated 11.10.2022, on 13.10.2022. On 13.10.2022, it was pointed out to the Bench by Mr. K. N. Singh, learned Additional Solicitor General that the appellant had suppressed the fact that he had already filed such petition, seeking provisional bail in the Court below, and further, as per the intelligence report, there was apprehension that the appellant would flee away with his wife. Instead of accepting oral submissions advanced on behalf of the NIA, this Court required learned Additional Solicitor General to bring on record what had been orally submitted. An affidavit was filed on behalf of the NIA when the case