Harita
GRANTING OF BAIL UNDER TERROR CASES
Harita Mehta 9 Sep 2020

Introduction
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” 

To analyse the essence of the above statement, let us focus on the regular bail provisions in the UAPA.The UAPA didn't cover acts of terrorism, and on the other hand, provisions of TADA and POTA were brutal. In 2004, TADA and POTA were revoked, however, to forestall a likely vacuum and to find harmony, the offences related to terrorist activities (largely POTA) in these statutes were inserted into the UAPA.

Meaning of Unlawful activities and terrorist acts 

According to the Unlawful Activities (Prevention) Act, 1967 "unlawful activity",  implies any activity taken by an individual or organisation (regardless of whether committing an act either spoken or composed, or by signs or by noticeable portrayal or something else), which is expected, or underpins any case, to achieve, on any ground at all, the cession of an aspect of the domain of India or the severance of an aspect of the district of India from the Union, or which incites any individual or gathering of people to achieve such cession or  or some act which disclaims, questions, disrupts or is intends to disrupts the sovereignty and integrity of the country ; or any such action which causes or is intended to cause disaffection against India.

Terrorist Act according to UAPA, 1967 means, an ac done with sole intent to threaten or likely to threaten the unity, integrity, security or sovereignty of the country  or with a plan to strike terror on any section of the people in India or any foreign country

(a) by using bombs, dynamite or other explosives or hazardous nature or by any other means which is likely to cause:- 

(i) death or injury  people (ii) loss or damage to, or destruction of, property (iii) disruption of supplies or services essential to the life of the community  whereby causing damage to the country’s economy  (iv) damage or destruction of any property in India or a foreign country

(b) overawes through criminal force or by showing unlawful force or by attempting  to do so or causes the death of a public functionary or trying to cause such an act against any public functionary

(c) detains, kidnaps or abducts a person and threatens to kill or injure that person or does any other action to compel the Government of India, any State Government or the Government of a foreign country commits a terrorist act.

Schedule 1 of the UAPA 

An extensive list of organisations had been included in the schedule to the UAPA as banned terrorist organisations. Mostly these bans are not challenged, and judicial tribunals have  continued to uphold the imposition of such bans 

The Banning of the organisation renders  its individuals helpless against indictment. Other than detainment, results incorporate loss of property connected to fear based oppression. To keep away from such extraordinary outcomes, an individual from such an organsiation may demonstrate that the person has not communicated with the oragansation after the ban.The organisation may challenge the notification in a judicial tribunal.

All these defences will go away if an individual is notified as a terrorist. There's no need to prove the link with the organisation. What is worse is that people consorting in any manner with a notified individual can also be roped in under the Act. The Act itself is broadly framed, to sweep in all kinds of suspect organisations.

Raw Ingredients and grounds of bail 

Indian bail law is established on the reliable, legitimate assumption of the possibility of innocence and embodies the idea of freedom and opportunity from punishment before conviction.Section 436-439 of the CrPC sets out the bail provisions for different offences. Section 4(2)  of the CrPC gives power to special laws apart from the Indian Penal Code (IPC) to lay down separate procedures.  Different statues dealing with a unique set of crimes have various distinct provisions for bail where few of those statues make the procedure grant of bail more challenging than CrPC
These are the following factors of law that have to be considered by the Court law surrounding the grant of post-arrest bail:-

(i) whether there exists prima facie or reasonable ground to accept that the accused had committed or said to have achieved that offence
(ii) to examine the nature and gravity of the charge made on the accused  
(iii) to know the severity of the punishment, the accused stands convicted  
(iv) to ponder upon the danger of the accused absconding or fleeing, if in case he is released on bail; 
(v) to analyse the character, behaviour, means, position and standing of the accused in entirety
(vi) to consider the likelihood of the offence getting repeated; 
(vii) the reasonable apprehension of the witnesses being tampered 
(viii) the utmost danger of course of justice being thwarted by grant of bail.

Provisions relating to bail under UAPA 

The extraordinary laws erode the ability of the accused to argue her innocence effectively, and this is the case with UAPA. After the 26/11 attack, UAPA was amended, and limitations on bail were brought into the Act for the first time. For certain UAPA offences, the time of imprisonment without a charge sheet can be extended as long as a half year, and no individual can be conceded bail if the state's allegations appear to be prima facie correct. 

Section 43D(5) of UAPA, which deals with terrorist activities, stands

:- '(5) Despite anything contained in the Law, no person charged with an offence punishable under Chapters IV and VI of this Act shall be released on bail or bond if he is in custody, unless the Public Prosecutor has been given the opportunity to be heard on a request for such release:

Provided that such accused person shall not be released on bail or his bond if the Court, on perusal of the case diary or the report made under section 173 of the Code believes that the believes grounds for believing that the accusation against such person is prima facie correct." ḍSection 43D(5) of UAPA.

Along these lines, the ordinary provision under UAPA is different from other similar types of provisions. While other rule books require recording of an opinion by the Court that there is sensible justification for accepting that the accused is "not guilty" of the alleged offence, UAPA involves the recording of an opinion by the Court in deciding bail that there is a sensible reason for accepting that the allegation against such individual is “prima facie” true.

The expression "prima facie true" would imply that the materials/proof gathered by the investigating organisation regarding the allegation against the concerned accused in the FIR, must prevail until contradicted and overcome or disproved by other evidence on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be adequate on its face to establish a given actuality or the chain of realities constituting the said offence, except if refuted or repudiated.

Accordingly, the degree of satisfaction is lighter when the Court needs to think that the allegation is "prima facie true",  as compared the opnion of accused being "not guilty" of such an offence, as needed under other special enactments.

Along these lines, the way to deal with ordinary bail under UAPA for terrorist acts is higher than offences under IPC, yet similarly contrasted with what was required under the POTA and TADA. Under the POTA and TADA, there was a virtual restriction on bail for offences under these enactments.

Rejection of Bail

The Patiala House Court denied bail in the Safoora Zargar Case

Basically, Section 43D(5) provides that any individual accused of an offence committed in Part IV (Punishment for Terrorist Activities) and Part VI (Terrorist Organizations) of the UAPA will not be conceded bail "if the Court, on a perusal of the case diary or the report made under Section 173 of Cr.P.C., thinks that there are fair grounds to believe that the indictment against that individual is prima facie valid".

Basically, by denying bail, what the Court has consequently held is that it appears prima facie valid that Safoora Zargar is involved in an offence under Part IV and Part VI (without saying the same). 

Safoora has been charged under an entire host of provisions under the Indian Penal Code, Sections 3 and 4 from the Prevention of Damage to Public Property (PDPP) Act and Sections 13, 16, 17, and 18 from the UAPA. Out of all the sections under which she has been charged, just Sections 16, 17 and 18 falls under Chapter IV of UAPA. Accordingly, the Court, while excusing the bail application by taking ploy under Section 43D(5) of UAPA, should have communicated prima facie satisfaction that the Safoora is associated with any of the mentioned  Sections. 

Since the Court just saw with certainty that she was engaged with the conspiracy to block roads, it tends to be construed that the Court believed the said Act to be an apparent act of terrorism, that was the main condition on which the bail could have been denied to Safoora. The request denying bail to Safoora depends on a barefaced misconstruing of the UAPA and activity of complete judicial oversight. 

Can an accused person get anticipatory bail under UAPA 

Ordinarily, Indian criminal procedure has an intriguing remedy of “anticipatory bail”, which reflects a systemic acceptance that the police may exercise its arrest powers arbitrarily. A person who fears arrest can seek bail in anticipation of a wrongful arrest. 

Here, wrongful suggests a standard that combines elements of malice and of being unnecessary for the investigation. The UAPA specifically disallows anticipatory bail not only for alleged terrorist acts, but for all offences of alleged terrorist activity punishable under the UAPA, including conduct such as attending meetings and protests, making speeches, giving loans, and of course, conspiring to do any of the above. 

Hence the accused can’t be granted an anticipatory bail at any cost.

Conclusion 

Granting of bail under terror cases is a very tricky process wherein in the accused has to go through utmost scrutiny but terror cases and unlawful activities are very different things, and their intensity also varies in the degree. This is why the law should be there where it can distinguishunlawful miscreants and the people inciting terror which taking away the liberty of a person. The UAPA has become what it was never meant to be the time has come where the legislature should think of grating comparatively easy grant of bail should be restored to UAPA and civil liberties are adhered,. The number of convictions under these laws has anyhow been minimal. Maybe, It is time to re-think and analyse this situation.
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