IMPORTANT POINT
The court emphasized that in terrorism-related cases, the gravity of charges and evidence against the accused necessitate denial of bail under Section 43D(5) of the UA(P) Act.

JUDGMENT :

K.V. JAYAKUMAR, J.

1. The appellants before us impugn the orders passed by the Special Court for the Trial of NIA Cases, Ernakulam, in S.C. No. 02/2023/NIA/KOC, dismissing the bail application preferred by them under Section 439 of the Code of Criminal Procedure, by relying on the provisions of Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as the “UA (P) Act”].

2. Brief facts necessary for the consideration of these appeals are as follows:

On 16.04.2022, an RSS worker Srinivasan, was murdered at Melamuri Junction in Palakkad Town in Kerala, allegedly by members of the Popular Front of India [PFI] cadres. An FIR No. 318/2022 dated 16.04.2022 was registered at Palakkad Town South Police Station under Sections 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 r/w with 149 of the Indian Penal Code and Section 3(a)(b)(d) r/w with 7 of the Religious Institutions (Prevention of Misuse) Act, 1988. Pursuant to the investigation conducted in the said case, 51 persons were arraigned as accused by the State and 44 among them were arrested. Thereafter, based on an order dated 16.09.2022 passed under Section 6(5) read with Section 8 of the National Investigation Agency Act, 2008 which in turn based itself on the information received by the Central Government that the office bearers and cadres of PFI and its affiliates in Kerala have conspired to instigate communal violence and radicalise its cadres to commit terrorist acts in the State of Kerala and various other parts of the country, lodged FIR No. RC-02/2022/NIA/KOC dated 19.09.2022 at the NIA Police Station, Kochi against the same accused, under Sections 120B and 153A of the IPC read with Sections 13, 18, 18B, 38 and 39 of the UA (P) Act. Subsequently, on 28.09.2022, the Central Government declared PFI as an unlawful Association.

3. NIA filed the respective charge sheets before the Special Court, and the appellants/ accused preferred their applications under Section 439 of the Cr.P.C. seeking bail. The Special Court rejected their bail applications. These appeals are filed impugning the Orders of the Special Court rejecting their bail applications.

4. We have heard Sri. Renjith B. Marar, the learned counsel for the appellants/accused and the learned Senior Counsel Sri. Sasthamangalam S. Ajithkumar for the prosecution.

5. At the outset we note that certain other accused in the very same S.C. No. 02/2023/NIA/KOC pending before the Special Court for the Trial of NIA Cases, Ernakulam, had moved this Court earlier challenging similar orders of dismissal of their bail applications by the Special Court. The said appeals were considered and disposed of by this Court vide common judgment dated 25.06.2024 in Crl. Appeal No. Nos. 1441 and 1600 of 2023, 139, 619, 620, 623, and 628 of 2024. In the said common judgment, this Court had after a survey of the dictum laid down in Kaushal Kishor v. State of U.P. and others, (2023) 4 SCC1, National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 KHC 6384, Thwaha Fasal and another v. Union of India and Another, 2021 (6) KHC 228, Union of India v. K.A. Najeeb, AIR 2021 SC 712, Vernon v. State of Maharashtra, 2023 KHC 6743, Union of India v. Barakathullah, 2024 KHC Online 6313, Amar Singh Yadav and another v. Shanti Devi and Others, AIR 1987 Pat 191 (FB); UOI v. K.A. Najeeb, (2021) 3 SCC 713; Shoma Kanti Sen v. State of Maharashtra, 2024 KHC 6182; Gurwinder Singh v. State of Punjab and another, (2024) SCC Online SC 109 culled out the essential principles that ought to be borne in mind while considering bail applications wherein there is an interplay of Section 439 of the Cr. P.C. and Section 43D (5) of the UA(P) Act. The guiding principles enumerated in the said judgment are as follows:

(i) That the liberty of a citizen is put at a very high pedestal in our country, and that treatment flows from the mandate of Article 21 of our Constitution.

(ii) That the right to a fair trial is an