FIR registered against the members of PFI for the offences under UAPA and IPC
2. The Central Government in Ministry of Home Affairs, CTCR Division having received a credible information that the office bearers, members and cadres of Popular Front of India (PFI), an extremist Islamic organization have been spreading its extremist ideology across Tamil Nadu, by establishing State Headquarters at Purasaiwakkam, Chennai and also offices in various districts of Tamil Nadu and that through their frontal Organizations like Campus Front of India, National Women’s Front, Social Democratic Party of India etc., they conspire for committing terrorist acts, raise funds for committing terrorist activities and recruit members for furthering their extremist ideology, and that the frontal organizations and PFI were involved in the recruitment of members to various prescribed terrorist organizations, passed an order on 16th September 2022, in exercise of the powers conferred under sub-section (5) of Section 6 read with Section 8 of the National Investigation Agency Act, 2008 (hereinafter referred to as the ‘NIA Act’), directing the National Investigation Agency to take up investigation of the said case. In view of the said order, an FIR being RC-42/2022/NIA/DLI came to be registered on 19.09.2022 against the present respondents and other members and office bearers of PFI for the offences under Section 120(b), 153(A), 153(AA) of IPC and Section 13,17,18,18(B), 38 and 39 of the Unlawful Activities (Prevention) Act, 1957 (hereinafter referred to as the “UAPA”).
Bail dismissed after prima facie case made out
3. During the course of investigation, the respondents-accused herein came to be arrested on 22.09.2022 for the alleged offences. They filed their respective bail applications before the Special Court under the NIA Act (Sessions Court for Exclusive Trial of Bomb Blast Cases). The Special Court after considering the case diary, the documents and material produced before it, and after having been satisfied about the prima facie case made out against the respondents-accused as also considering the provisions of Section 43D of the UAPA in the light of the position of law settled by this Court in various decisions, dismissed the said bail applications filed by the respondents.
Appeal against the bail order by the UOI after charge sheet filed was allowed by the Hon’ble High Court
4. Being aggrieved by the said orders, the respondents filed Criminal Appeals being CRLA Nos. 98, 114 and 116 of 2023 before the High Court of Judicature at Madras. It appears that some of the respondents-accused had also filed Cr.L.M.P Nos. 11595 and 8094/2023 seeking interim bail pending the said appeals. During the pendency of the said Appeals, the chargesheet came to be filed by the appellant-NIA against all the respondents alongwith other accused on 17.03.2023 for the offences under Sections 120B, 121A, 122, 153A, 505(1)(b), (c), (2) of IPC and Sections 13,18, 18A, 18B of UAPA. The High Court after taking into consideration the submissions made by the learned Counsels for the parties and materials placed on record including the Chargesheet, allowed the said Appeals by the common impugned order dated 19.10.2023, releasing the respondents on bail subject to the conditions mentioned therein. Being aggrieved by the said order, the present set of appeals have been filed by the Union of India through NIA, Chennai Branch.
Difference between the consideration of cancellation of bail and challenging the order of grant of bail
8. It is trite to say that the consideration applicable for cancellation of bail and consideration for challenging the order on the grant of bail on the ground of arbitrary exercise of discretion are different. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like tampering of evidence either during the investigation or during the trial, threatening of witness, accused likely to abscond and the trial getting delayed on that account etc. whereas in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration would be whether there was improper or arbitrary exercise of discretion in the grant of bail or the findings recorded were perverse. The instant appeals have been filed by the appellant challenging the impugned order passed by the High Court granting bail to the respondents- accused on the ground that not only the High Court has arbitrarily exercised the discretion in favour of the respondents, but also has recorded perverse findings while exercising such discretion.
Section 43D(5) of UAPA
10. Since all offences alleged against the respondents are covered under Chapter IV and VI of the UAPA, the rigors and restrictions of sub-section (5) of Section 43D would apply to the facts of this case. It may be noted that this Court in case of National Investigation Agency vs. Zahoor Ahmad Shah Watali ((2019) 5 SCC 1), had an occasion to deal with the sub-section (5) of Section 43D and in similar fact situation, after comparing the similar provisions under the Special enactments such as TADA, MCOCA, NDPS as also the earlier decisions of this court, had held as under:
“23. ……By its very nature, the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act……”
How to form an opinion as to a final report?
13. In the light of the above, let us consider whether from the perusal of the chargesheet and other material/documents produced against the respondents, there are reasonable grounds for believing that accusations against the respondents are prima facie true, as contemplated in the proviso to sub-section (5) of Section 43D of UAPA. It is quite well settled position of law that the chargesheet need not contain detailed analysis of the evidence [K. Veeraswami vs. Union of India and Others; (1991) 3 SCC 655]. It is for the concerned court considering the application for bail to assess the material/evidence presented by the investigating authority along with the report under Section 173 Cr.P.C. in its entirety, to form its opinion as to whether there are reasonable grounds for believing the accusation against the accused is prima facie true or not.
There are reasonable grounds in the final report to believe the allegations are primafacie true
16. As transpiring from the material on record, the PFI was registered under the Societies Registration Act, having an organizational set up as contained in its constitution. All the respondents-accused were the members or office bearers of the said organization at the relevant time. As alleged in the chargesheet, though the PFI was projecting itself as an organization fighting for the rights of minorities, Dalits and marginalized communities, it was pursuing a covert agenda to radicalize particular section of the society and to work towards undermining the concept of democracy and integrity of India. The investigation disclosed that the activities and undeclared objectives of PFI had strong communal and anti-national agenda to establish an Islamic rule in India by radicalization of Muslims and communalization of issues. After recruitment as members of PFI, they were motivated towards violent terrorist activities by providing training through beginners course and advanced training courses. During the training courses, physical education classes were conducted in which members were taught to attack, assault, maim and murder with bare hands. The training was also given as to how to use weapons like knives and swords and how to hurl bombs. It appears that within few days of the arrest of the respondents on 22.09.2022, the PFI was declared as an “unlawful association” and was banned by the Government of India under the UAPA. We need not elaborate on the allegations made by the protected/listed witnesses stating the role and involvement of each of the respondents, who were either members or the office bearers of the PFI. Suffice it to say that, there is sufficient material in the form of statements of witnesses and other incriminating evidence in the form of digital devices, books, photographs etc. collected during the course of investigation and relied upon by the appellant as recorded in the chargesheet, to form an opinion that there are reasonable grounds for believing that the accusations against the respondents-accused are prima facie true.
How long a chargesheet would prevail?
17. As stated in Watali’s case, the material/evidence collated by the Investigating Agency in reference to the accusation against each of the accused concerned in the chargesheet would prevail until rebutted, contradicted and overcome or disproved by other evidence. The material collated and statements of witnesses recorded also show prima facie complicity of the respondents-accused in the commission of the alleged offences, which material/evidence is good and sufficient on its face to establish the facts constituting the alleged offences, till such material/evidence is rebutted or contradicted. The Court at the stage of considering the bail applications of the respondents-accused is merely required to record a finding on the basis of broad probabilities regarding the involvement of the respondents in the commission of the alleged offences.
Discarding the material at the stage of considering the bail application as reliable or inadmissible in evidence is not permissible
19. Though it was sought to be submitted by learned counsel appearing for the respondents that the material / evidence collected by the Investigating Agency and statements of witnesses relied upon by the prosecuting agency is not reliable, the said submission cannot be accepted. As held by this Court in Watali’s case, the question of discarding the material or document at the stage of considering the bail application of an accused, on the ground of being not reliable or inadmissible in evidence, is not permissible. The Court must look at the contents of the documents and take such documents into account as it is and satisfy itself on the basis of broad probabilities regarding the involvement of the accused in the commission of the alleged offences for recording whether a prima facie case is made out against the accused.
22. In the instant case, we are satisfied from the chargesheet as also the other material/documents relied upon by the appellant that there are reasonable grounds for believing that the accusations against the respondents are prima facie true and that the mandate contained in the proviso to Section 43(D)(5) would be applicable for not releasing the respondents on bail. Having regard to the seriousness and gravity of the alleged offences, previous criminal history of the respondents as mentioned in the charge-sheet, the period of custody undergone by the respondents being hardly one and half years, the severity of punishment prescribed for the alleged offences and prima facie material collected during the course of investigation, the impugned order passed by the High Court cannot be sustained. We are conscious of the legal position that we should be slow in interfering with the order when the bail has been granted by the High Court, however it is equally well settled that if such order of granting bail is found to be illegal and perverse, it must be set aside.
Bail order passed by the High Court is set aside
24. In that view of the matter, the impugned order passed by the High Court is set aside. The respondents shall forthwith surrender themselves before the appellant-NIA. Since, the chargesheet has already been submitted before the Special Court, it is directed that the Special Court shall proceed with the trial as expeditiously as possible and in accordance with law, without being influenced by any of the observations made by this Court in this order.
Party
UNION OF INDIA rep. by the Inspector of Police National Investigation Agency Chennai Branch …APPELLANT(S) VERSUS BARAKATHULLAH ETC. …RESPONDENT(S) – CRIMINAL APPEAL NOS. 2715 – 2719 OF 2024 (@ SLP (Crl.) Nos. 14036-14040 of 2023) – MAY 22nd, 2024 – 2024 INSC 452
UOI vs. Barkathullah 440442023_2024-05-22
Further study