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ATUL SREEDHARAN, MOHAN LAL
Peerzada Shah Fahad – Appellant
Versus
UT of J&K – Respondent
JUDGMENT :
Atul Sreedharan, J.
1. This case has compelled us to examine two questions of law. Whether, section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, where despite the existence of a prima facie case against the accused, the absence of a “Need to Arrest” would result in violation of the right to life of the accused under Article 21 of the Constitution and if it does, whether the Court can still grant bail on account of the violation of Article 21 even though a prima facie case is made out against the accused? And whether, the concept of “Clear and Present Danger” ought to be taken into account by the Courts while deciding a bail application where the bar under section 43D(5) is applicable?
2. The Criminal Appeal (D) No. 42/2022 has been filed by the appellant under the relevant provisions of the National Investigation Act (hereinafter referred to as the 'NIA'), aggrieved by the order dated 15.07.2022, passed by the Ld. Special Judge (UAPA)/ 3rd Additional Sessions Judge, Jammu, by which the bail application of the appellant was dismissed. The petition u/s. 482 Cr.P.C bearing CRM (M) No. 472/2023has been filed against order dated 16.03.2023 passed by the Ld. Special
The court held that a lack of 'clear and present danger' can justify granting bail under UAPA, even when a prima facie case exists, emphasizing the importance of protecting fundamental rights.
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