Unlawful Activities (Prevention) Act, 1967: Interpretation on Rigours of Grant of Bail

Introduction

Terrorism is a global phenomenon, with varying forms of manifestation. It is a rampant crime that many organisations and unfortunately some countries thrive on. Hence, protection of one’s country and its citizen is an obligation of the Government and they do so through counter-terrorism laws.

The Unlawful Activities Prevention Act, 1967 (hereinafter referred to as “UAPA”) is one such legislation. Unlawful Activities (Prevention) Amendment Act was enacted in 1967, it gained particular prominence in the year 2008-2012 after the 26/11 Mumbai terror attacks. It is an upgraded version of the TADA (Terrorist and Disruptive Activities Prevention Act, 1987) and POTA (Prevention of Terrorism Act, 2002) which lapsed and was repealed in 1995 and 2004 respectively. Due to heinous nature of terrorism, UAPA provides special procedures to decide cases with respect to terrorism. The National Investigation Agency is the central law enforcement agency tasked to deal with instances of terrorism in India.

It defines terrorist activities under Section 15 and offences and punishments related to terrorism and in Chapter IV, Sections 15-23 and terrorist organisations are dealt within Chapter VI, Sections 35-40. This Act grants the Centre power to declare any act they deem to be unlawful to be declared so. An unlawful activity is an act by an individual or a group that incites feelings of disaffection, and disrupts, disclaims, questions, is intended to disrupt the territorial integrity and sovereignty of the country.^[1]

What is unlawful activities?

Unlawful activities in literal terms mean any activity contrary to the lawful procedure established by the legislature. According to Section 2(1)(o) of UAPA Act, an “unlawful activity”, means any action taken by individuals or associations which can be done through words, visible representation or written publications:

(i) with the intention to cede or cause severance of any part of the territory of India from the Union, either done itself or by inciting any individual or group of individuals to cause such cession or severance;

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against India.

On a critical interpretation of this definition, it can be deduced that clauses (ii) and (iii) of the definition are quite vague and open-ended. This gives surprisingly unlimited power to the Government to declare any kind of disclaim or questions as incitement as unlawful activities, at the garb of disruption to government’s sovereignty and territorial integrity. This can (or has already) led to prejudice to one of the most essential elements of a democracy i.e. constructive criticism of its Government.

Significance of bail in criminal proceedings

The provision of bail goes back to the medieval times of Magna Carta which was drafted 800 years back and described as the keystone of individual liberty and has been consistently followed in India. Clause 39 of the Royal Charter of the Magna Carta provided that

“no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled or deprived if his standing in any other way, nor will he be proceeded against with force, except by the lawful judgment of his equals or by the law of the land”.

The presumption of innocence is the cardinal rule of our criminal justice system and also finds its roots under Article 21 of the Constitution of India. The Supreme Court in several judgments have reiterated that “bail is the rule and jail is the exception”. Since presumption of innocence is attached to all the accused persons and as such they may be given the opportunity to look after and defend their own case. The Supreme Court in Sanjay Chandra v. CBI^[2] has also echoed that the accused has a better chance to prepare and present his case while he is out on bail in the following words:

18. … It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted.…

Furthermore, the Supreme Court in Sanjay Chandra case^[3] and State of U.P. v. Amarmani Tripathi^[4], has observed that the following factors among others may be considered while deciding the bail application:

Nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
Prima facie satisfaction of the court in support of the charge.

Legislative amendments in UAPA which specifically deals with stringent bail conditions

The UAPA has been amended a few times which has further strengthened the strict provisions of the Act. When it was first enacted it was meant to deal only with unlawful activities, whereby the Central Government was given the power to declare certain activities as unlawful. However, due to repeated amendments, the Act has converted itself into primary legislative enactment for “terrorist activities”. The amendments increased the powers of Central Investigating Agencies, especially the National Investigation Agency (NIA) with respect to prosecution of accused persons under the Act. Some of the amendments were introduced by the legislature in the years 2004, 2008, 2012 and 2019, wherein the 2008 amendment introduced stringent twin conditions to be applicable for grant of bail to the accused which are distinguishable from other special Acts such as Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and Prevention of Money-Laundering Act, 2002 (PMLA). Such conditions are now contained in Section 43-D(5) of the UAPA Act which is reproduced herein-below for the sake of ease reference:

43-D. Modified application of certain provisions of the Code.—(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and “cognizable case” as defined in that clause shall be construed accordingly.

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(5) 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.

A bare perusal of the aforementioned conditions envisaged under Section 43-D(5) of the Act shall makes it apparently clear that the regular bail provisions under the Act are distinct from other similar provisions in as much as the other special Acts require recording of an opinion by the Court that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence, UAPA requires recording of an opinion by the court deciding bail that there are reasonable grounds for believing that the accusation against such person is “prima facie” true.

Interpretation of stringent bail provisions under UAPA by various judicial forums

As already discussed above, the bail conditions in UAPA are not only stringent but are also distinct from various other special Acts enacted by the legislature in India. Therefore, it is extremely pertinent to look at the interpretation of such provisions by various judicial forums in India in order to understand its applicability in various scenarios.

In 2019, the landmark judgment passed by the Supreme Court of India in National Investigation Agency v. Zahoor Ahmad Shah Watali,^[5] has made pertinent observations in regard to the nature of the burden on the accused and the evidence to be considered in order to reach a prima facie finding of guilt while hearing bail applications. The relevant excerpts of the judgment are reproduced hereinbelow:

23. … 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.

24. A priori, the exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

From the above-mentioned observations it is evident that having a power, exercise of such power, and conditions of exercise of such power are three different things. Grant/denial of bail in terrorism-related offences under UAPA is a power of the designated court. Exercise of such power is bound by Section 43-D(5), which lays down a test of a lesser degree than the erstwhile TADA and POTA and other special Acts such as NDPS, PMLA. The Supreme Court has, however, released the grant of bail from this comfort by asking the court to “merely” record a finding on the basis of “broad probabilities regarding involvement in commission of a stated offence or otherwise”.

Further recently Delhi High Court in Asif Iqbal Tanha v. State of NCT of Delhi^[6] has made it clear that prima facie burden as stated in Section 43-D(5) lies on the prosecution. Relevant excerpts of the judgment are reproduced hereinbelow for ease of convenience. Relevant excerpts of the judgment are reproduced hereinbelow for ease of reference:

(l) In the statutory framework of the now repealed TADA and POTA, before allowing a bail plea, the court was required to assess whether the accused person was “not guilty” of the offence alleged; and therefore the burden was clearly on the defence to disprove the allegations on a prima facie basis. Correspondingly therefore, under Section 43–D(5) of the UAPA, where, before allowing a bail plea, the court is required to assess if the accusation against an accused is prima facie true, the burden to demonstrate the prima facie veracity of the allegation must fall upon the prosecution. The requirement of being satisfied that an accused is “not guilty“ under TADA or POTA meant that the court must have reasons to prima facie exclude guilt; whereas the requirement of believing an accusation to be “prima facie true” would mean that the court must have reason to prima facie accept guilt of the accused persons, even if on broad probabilities.

Thus it is clear that the bar for getting a bail under UAPA is on lighter footing when compared with other special Acts such as NDPS and PMLA. However, under the Act, bail can only be granted if the accused is able to prove that there does not, infact, exist a “prima facie” case against him.

Instances where judicial forums have granted bail to the accused under Act

In Union of India v. K.A. Najeeb^[7], a three-Judge Bench of the Supreme Court headed by Chief Justice N.V. Ramana upheld the bail granted to the accused by the High Court of Kerala at Ernakulam under UAPA when the accused had undergone incarceration for a significant period even as it recognised that bail under UAPA was an exception.

… courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

Recently, the Bombay High Court in P.V. Varavara Rao v. National Investigation Agency^[8] has reiterated the principles expounded by the Supreme Court in K.A. Najeeb[9] judgment made pertinent observations on the interpretation of Section 43-D(5) of the Act. Relevant excerpts of the judgment are reproduced hereinbelow for ease of reference:

As we have noted above, in a given case, the fundamental rights guaranteed in Part III of the Constitution of India to prisoners languishing in four walls of prisons could be asserted on the basis of appropriate material to show that to recognise such rights, particularly the right guaranteed under Article 21 of the Constitution of India, the walls of the prison would have to be breached, subject of course, to imposition of appropriate conditions. Imposition of conditions would be in the nature of a safety net to ensure that the undertrial/accused is made to face proceedings before the trial court. The Supreme Court in K.A. Najeeb[10], has categorically held in the context of sufferings of undertrials where the proceedings before the trial court take years to be completed, that the rigours of provisions pertaining to grant of bail found in special statutes like the UAPA will melt down where there is no likelihood of the trial being completed within a reasonable time. Therefore, such a position of law is now well recognised and it can be relied upon where on facts, the court comes to a conclusion that continued incarceration of an accused like the undertrial in the present case, would violate his right under Article 21 of the Constitution, considering the precarious health condition of such an accused. Even otherwise, in the present case also, the respondents have conceded that at least 200 witnesses will be examined by the prosecution. The charge-sheet itself runs into thousands of pages. The charge is not framed yet, and consequently, the trial is yet to commence and, even after commencement of trial, it may take a long time to complete since the prosecution intends to examine at least 200 witnesses.

A bare perusal of the above-mentioned case laws shall make it clear without an iota of doubt that although rigours of granting bail to the accused under the Act are strict, however in any circumstance whatsoever the same cannot take shape of prohibition on grant of bail to the person accused of committing offences under the Act. The most recent interpretation of Section 43-D(5) by the Supreme Court in Zahoor Ahmad Shah Watali^[11] contains two pertinent observation switches that support such a conclusion. Firstly Section 43-D(5) of the act is on lighter footing when compared with other special Acts such as NDPS and PMLA Act and secondly there is no need to going into merits and demerits of the case at the stage of bail pertaining to offences under the Act. Further The Bombay High Court in P.V. Varavara Rao^[12] has further made it clear that incarceration of the accused while he is under trial in a case where trial may not occur immediately is an express violation of the right guaranteed to him under Article 21 of the Indian Constitution. Thus in lieu of above the position of law is well settled and no longer per incuriam that there is no prohibition of grant of bail under the provisions of the Act and if the accused meets the criteria which has been explained above in detail, he is entitled to grant of bail under the Act.

Applicability of Section 167(2) of CrPC 1973 pertaining to offences under the Act

Apart from abovementioned provisions of regular and anticipatory bail, Section 167(2)(a) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”), grants the accused the right to be released on bail when investigation has not been completed within 90 days in case of offences punishable with death/life imprisonment or imprisonment for a term not less than 10 years, and 60 days in case of other offences. The abovesaid provisions reproduced herewith for the convenience of reference:

167. …

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that:

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,–

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter.

However under the UAPA 1967 Section 43-D(2) of the Act operates a special provision distinguishing the applicability of rights granted under Section 167(2)(a) of the Code. The provision is reproduced hereinbelow for ease of reference:

43-D. Modified application of certain provisions of the Code.—

… (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—

(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.

Thus a bare reading of the above-mentioned provision of the Act shall make it clear that there that the benefit of default bail shall be available to the accused person for the offences committed under the Act for where the investigation have not concluded within 90 days of arrest of the accused irrespective of the punishment of the alleged offences committed by him. However it is pertinent to note that the provision also gives right to the investigation agencies to seek for extension of investigation to a period of 180 days by filing a report of the Public Prosecutor indicating the progress of investigation along with specific reasons for detention of the accused.

Further the Supreme Court in Bikramjit Singh v. State of Punjab^[13], has made pertinent observations with in regard to interpretation of grant of default bail to a person accused of commission of offences under the Act:

A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge-sheet is filed, the right to default bail becomes complete. It is of no moment that the criminal court in question either does not dispose of such application before the charge-sheet is filed or disposes of such application wrongly before such charge-sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.

On a bare reading of the provision, the Supreme Court’s interpretation of the same , it can be perceived that the provision is fair and just to the accused as well as the investigation agencies as it tries to create a balance between rights of an individual and a greater/larger interest of the State. However the interpretation of this provision is extremely critical in order to maintain such balance as if on one hand the right have been granted to accused to seek default bail when investigation is not complete within stipulated time and on the other hand the investigation authorities are also entitled to seek for an extension of investigation by spelling out requisite grounds,which if allowed would disentitle the accused form obtaining default bail. Therefore there is a high chance that the investigation authorities in a backhanded manner may move the application for extension of time period of investigation, without notifying the accused, then the act of the court in allowing and would deprive the accused of their statutory liberty.

Recently Karnataka High Court in Muzammil Pasha v. National Investigating Agency^[14], has clarified the position of law on this aspect and have held that extending the time period for an investigation without hearing the accused person under the provisions of Section 43-D(2) is a gross violation of natural Justice, such an act is in grave contravention with the settled principles of law. The High Court has further gone on to hold that even if charge-sheet has been filed within the extended period of investigation , the accused cannot be deprived of his right to be released on statutory bail, as the same is a right established by procedure of law and is hence covered under the ambit of Article 21 of the Indian Constitution relevant excerpt of the judgment are reproduced hereinbelow:

In my considered opinion, the judgment of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra[15] and in Sanjay Dutt v. State[16] would be applicable to the facts of the present case. Since the petitioners were not given an opportunity of being heard before passing an order on the application filed by the prosecution for extension of time for completion of the investigation and since the petitioners were not kept present before the court when the application filed by the prosecution for extension of time for completion of the investigation was being considered and Muzammil Pasha[17] since the petitioners were not notified that such an application filed by the prosecution was being considered by the court for the purpose of extending the time for completion of investigation, I am of the considered opinion that the order passed by the trial court on the application filed by the prosecution under the first proviso to Section 43-D(2)(b) of the Act of 1967 extending the time to complete the investigation is legally unsustainable and accordingly, Point 1 for consideration is answered in the negative.

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In the case on hand, immediately after completion of 90 days period prescribed under Section 167(2) of the Code for completion of the investigation, an application has been filed by the petitioners seeking statutory bail, which is also known as “default bail” on the ground that the prosecution had not completed the investigation and filed the charge-sheet. In view of the law laid down in Bikramjit Singh[18], merely for the reason that the charge-sheet Criminal Appeal No.699/2020 (arising out of SLP (Crl.) No.2333/2020) DD 26.10.2020 Muzammil Pasha[19] WP.1417/2021 C/W WP.637/2021, 640/21, 1299/21 & 1706/21 has now been filed, it will not take away the indefeasible right of the petitioners, if it has accrued in their favour. Therefore, there is no merit in the contentions of the learned ASG that the prayer made by the petitioners for grant of statutory bail under Section 167(2) of the Code cannot be considered having regard to the fact that the charge sheet has now been filed during the extended period for completion of the investigation.

… 35. The right to statutory bail has now been considered as a fundamental right under Article 21 of the Constitution of India, by the Supreme Court in Muzammil Pasha[20]and Bikramjit Singh[21]. Article 21 which guarantees the right to life and personal liberty is considered to be sacrosanct of our Constitution. The State has an obligation to follow fair, just and reasonable procedure prior to depriving any person this right guaranteed under Article 21.

Therefore its is imperative that the above provisions are interpreted in the light on principles of natural justice and in fair reasonable and just manner so that an accused is not deprived of his statutory rights in contravention of procedure established by law, which inturn is violative of the letter and spirit under Article 21 of the Indian Constitution.

Conclusion

In lieu of provisions and judgments cited above , it is safe to conclude that the strict provision of bail under the Unlawful Activities Prevention Act, 1967, can in no circumstance whatsoever be interpreted as a prohibition on the grant of bail or a measure to incarcerate undertrial prisoners in cases where the trial may not commence shortly. It is also clear that in the cases pertaining to UAPA the burden of proving prima facie guilt rests on the prosecution which they need to prove on the basis of broad probabilities. Further as far as statutory or default bail is concerned , same is also available to the accused under the Act subject to certain modifications, and the accused cannot be deprived of this right in abhorrence of principles of natural justice. Thus it may not be wrong to say out of all the special Acts, Unlawful Activities Prevention Act, 1967 is an exception wherein higher burden lies on the prosecution to establish the prima facie guilt of the accused.