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GAUHATI HIGH COURT
I.A.Ansari,A.C.Upadhyay, JJ.
Jayanta Kumar Ghosh -Appellant
Versus
National Investigation Agency -Resopndent
Crl. Appeal No. 14 of 2012
Decided On : 10-09-2012
Criminal Procedure Code, 1973 – section 439 – Bail - Unlawful Activities (Prevention) Act, 1967, Unlawful Activities (Prevention) Amendment Act, 2008, Unlawful Activities (Prevention) Amendment Act, 2008, - Constitutional guarantee of civil liberty vis-a-vis horrors of terrorism- Chief Judicial Magistrate, Kamrup, remanded the accused to judicial custody, in purported exercise of its power under section 167 of the Cr.PC, on the ground that no court has so far been constituted under the NIA Act – terrorism and secure thereby the resolution adopted by the Security Council of the United Nations on 28th September, 2001 - Whether High Court, under section 439 of the Code, or under its appellate jurisdiction, under section 21(4) of the NIA Act, has the power to override the statutory provisions embodied in section 43D(5) of the UA(P) Act, which is a special enactment, one must bear in mind that section 43D(5) starts with non-obstante clause, stating that "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 - Held, High Court earlier upheld the order passed by the learned Special Court refusing to grant bail to the present appellant and, hence, unless there is any change in the circumstances or fresh facts are brought on record, it would not be permissible for the Special Court to grant bail on the basis of the same materials, which were available before it, at the time, when the earlier application for bail was made and disallowed by the learned Special Court as the trial court -since the CBI has not named the present appellant, Jayanta Ghosh, in the charge sheet, which has been filed by the CBI, in another case, the appellant becomes entitled to bail in this appeal. The matter, investigated by the CBI, is in a context of role allegedly played by the appellant in another case. This court, at present, is not empowered to decide whether the fact, that the CBI has not filed any charge sheet against the present appellant, in another case, is or is not factually correct or in accordance with law relevant thereto. The decision of the present appeal will depend on the facts and law relevant to the present case and not what the CBI has done in another case. The mere fact, therefore, that the appellant has not been charge sheeted in another case, would not mean that the prima facie case, within the meaning of the proviso to section 43D(5), which was, otherwise, found to have been made out against the appellant, would stand effaced. The present appeal can be decided only on the basis of the materials pertinent to this case and, any extraneous matter, which is shown to have no bearing in the present appeal, cannot be taken into consideration – Petition dismssed
Introduction
1. When pitted against each other, which one is more important - liberty of a person, or the security of the State? Society has struggled to find a uniform answer to this question in all its stages of civilization. There was a time, when the concern of the security of the State made rulers ignore the question of personal liberty of his subjects. As the civilizational standards started rising, participation of the people in the governance of the State started increasing. The experience taught the people that ignoring personal liberty, in all cases and in all circumstances, may prove counter-productive inasmuch as it may turn the ruler - whether an individual or a group of persons - into a despot and dictator. Ignoring personal liberty may even slide the State to the brink of tyranny and, eventually, plunge the State into such a catastrophe as could destroy the State itself.
2. The human civilization, therefore, realized that a balance has to be struck between the two. While the concern of the security of the State, ill all conditions and always, may not be allowed to override the concerns of civil liberty, the civil liberty must also be subjected to certain restrictions so that the liberty does not become a licence to do anything, which anyone pleases to do, for, civil liberty, beyond a point, may also prove disastrous for the State inasmuch such licencees would tempt to ignore the law and defeat thereby the very rule of law, which is the cherished goal of civil liberty.
3. Fortunately, in India, her Constitution creates a balance between the two conflicting interests - civil liberty and security of the State. All laws, in India, have to, therefore, withstand the test of this constitutional balance. With the spread of terrorism, human civilization has been put under severe strain inasmuch as terrorism is, now, testing our value system. Do we allow the concerns of civil liberty to be ignored in order to escape the horrors of terrorism? should we learn to forget the values, which we have attached so far to an individual's human rights, even if is an offender? No wonder that 'terrorism' has become, in the present day world, the greatest threat to human civilization.
4. The concern for security of the State has, therefore, forced the State to make more and more stringent laws. Lest the State also does not become as insensitive as a terrorist, all the acts of the State and the laws, made by the State, must be tested and interpreted on the touchstone of human rights. A successful State administers its laws with meaning and effect - See National Investigation Agency v. Redaul Hussain Khan, 2010 (3) GLT 302.
4a. In the light of the above observations made on the constitutional guarantee of civil liberty vis-a-vis horrors of terrorism, we, now, come to the present appeal.
Background facts
5. The material facts, giving rise to the present appeal, may, in brief, be set out as under :
(i) Some significant amendments have been made in the Unlawful Activities (Prevention) Act, 1967, ['the UA(P) Act'] by the Unlawful Activities (Prevention) Amendment Act, 2008, the amendments having come into force on 31.12.2008, which introduced and defined certain terms, such as, terrorist Act, terrorist gang, terrorist organization, unlawful association and unlawful activity and made, inter alia, punishable a terrorist act' under section 16 and, by section 17, while the UA(P) Act, as amended by the Unlawful Activities (Prevention) Amendment Act, 2008, made raising of fund terrorist Act punishable, the UA(P)Act also provided punishment a conspiracy, Act of abetment, etc.,- for commission of terrorist Act or any Act preparatory to the commission, of terrorist act. This apart, the UA(P) Act made 'membership' of a terrorist gang or terrorist organization punishable offences and also provided punishment for those, who hold or held proceeds of terrorism. The UA(P) Act made, under section 38, even 'association' by a person with a terrorist or
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