The Provisions under UAP(A) is harsh and leaves no scope of Bail in the scheduled and sanctioned offence under UAP(A) 1967. In National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1. It is held inter-alia that, there is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is “not guilty” of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. 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. The chargesheet has to be read as it is.
However, at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth must be done as laid down in Vernon -vs- The State of Maharashtra & Anr. [2023 INSC 655].
The Watali (supra), remains unchallenged in the Supreme Court. In recent times, in some matters, persons accused were able to secure bail in the scheduled and sanctioned offence under UAP(A) 1967. However, none of the accused were able to secure bail in merits of the case. In most of the cases decided recently, accused were granted bail on the grounds of delay in framing of charges, delay in Trial and on the grounds that the accused remained incarcerated for years without Trial. The aforesaid, Vernon (Supra) may be of some use. Most of such cases are based on the confessional statements of the accused and the statements of the co-accused and protected witnesses. Sometimes the entire case is based on disclosures and the Investigating agencies ends up in filing voluminous documents in relation to the recovery and disclosures.
Now, with regard to disclosures and admissibility, Jaffar Hussain Dastagir v. State of Maharashtra (1969) 2 SCC 872 and Pulukuri Kottaya v. King Emperor (1946) SCC online Privy Council 47, which states that under Section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence.
The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled. Section 27 of the Evidence Act is an exception to the general rule under Section 25 that a confession made by an accused to a police officer is not admissible in evidence. The first condition for the applicability of Section 27 is that the information given by the accused must lead to the discovery of the fact, which is the direct outcome of such information. Only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused. There is no embargo to deal with the statements and its admissibility by the Constitutional Courts even at the stage of Bail. The recently decided case of Thwaha Fasal -vs- Union of India [2021 SCC OnLine SC 1000] requires active membership for attracting sections 39 that would be gleaned from overt acts, but also narrows down the kinds of activity with which the association/support can be, by specifying that the “activity” here refers to committing of a “terrorist act”. The “activity” must be done with an intention and mens rea is to be considered. As such in some cases, wherein there are no overt act committed by persons-accused the Judgment of National Investigation Agency v. Zahoor Ahmad Shah Watali supra, may not come into way whilst considering the Bail.
It may be seen from the above, that the Supreme Court may not have granted bail to the accused persons in the recent times in merits but have granted concession due to delay in trial, however cases such as Vernon and Thwaha Fasal may come into play in deciding the future cases where there is embargo in bail, till the time Watali (Supra) is decided by a larger bench.
It is well settled law that an accused cannot be detained under the guise of punishing him by presuming the guilt as held in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281. Also, in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 294 : 2005 SCC (Cri) 1057] the Hon’ble Supreme Court has held at Paragraph 38, that “We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far.
If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea.” The Judgment can be read with the provisions of section 39 (deals with the offences relating to support given to a terrorist organisation), of the 1967 UAP Act. The Judgments of Hitendra Vishnu Thakur and Others -vs- State of Maharashtra and Others [(1994) 4 SCC 602], Niranjan Singh Karam Singh Punjabi, Advocate -vs- Jitendra Bhimraj Bijjaya and Others [(1990) 4 SCC 76] and Usmanbhai Dawoodbhai Memon and Others -vs- State of Gujarat [(1988) 2 SCC 271], the manner in which stringent provisions of a statute ought to be interpreted has been laid down by the Hon’ble Supreme Court. The observation of the Hon’ble Supreme Court has been that the Constitutional Court ought to carefully examine every case, before making an assessment if the Act would apply or not.
When the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act. Though these judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle would apply in respect of the 1967 Act as well.
Pankaj Singh, Advocate, Supreme Court of India, Former Expert on Mission to the UNHCR.
