LexGURWINDER SINGH versus STATE OF PUNJAB & ANOTHER
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* Author [2024] 2 S.C.R. 134 : 2024 INSC 92 Gurwinder Singh v. State of Punjab & Another (Criminal Appeal Nos. 704 of 2024) 07 February 2024 [M.M Sundresh and Aravind Kumar,* JJ.] Issue for Consideration Whether the High Court was justified in upholding the order passed by the Special Judge, rejecting the application filed u/s. 439 CrPC by the appellant seeking regular bail in a case registered under the Unlawful Activities (Prevention) Act, 1967 alongwith other charges under the Penal Code and the Arms Act. Headnotes Unlawful Activities (Prevention) Act, 1967 – ss. 43D (5), 17, 18, 19 – Rejection of bail – On facts, charges u/ss. 17, 18, 19 of the UAP Act, u/ss. 124A, 153A, 153B, 120-B IPC and u/ss. 25 and 54 of Arms Act against the appellant along with other co-accused for raising funds for terrorist act, for conspiracy and for organising of terrorist camps – Bail application u/s. 439 CrPC by the appellant – Rejected by the Special Judge as also the High Court – Correctness: Held: Material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered – In such a scenario if the appellant is released on bail there is every likelihood that he would influence the key witnesses of the case which might hamper the process of justice – Furthermore, mere delay in trial pertaining to grave offences cannot be used as a ground to grant bail – Also mere fact that the accused has not received any funds or nothing incriminating was recovered from his mobile phone does not absolve him of his role in the instant crime – Thus, the material on record prima facie indicates the complicity of the accused as a part of the conspiracy since he was knowingly facilitating the commission of a preparatory act [2024] 2 S.C.R. 135 Gurwinder Singh v. State of Punjab & Another towards the commission of terrorist act u/s. 18 – Bail application of the appellant is rejected – Penal Code, 1860 – ss. 124A, 153A, 153B, 120-B – Arms Act, 1959 – ss. 25 and 54. [Paras 32-34] Unlawful Activities (Prevention) Act, 1967 – s. 43D (5) – Scope and limitations of bail under : Held: s. 43D(5) modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the Act – Discretion of Courts must tilt in favour that bail is the rule, jail is the exception unless circumstances justify otherwise does not find any place while dealing with bail applications under UAP Act – Exercise of the general power to grant bail under the UAP Act is severely restrictive in scope – Words used in proviso to s. 43D (5) ‘shall not be released’ in contrast with the words as found in s. 437(1) CrPC ‘may be released’ suggests the intention of the Legislature to make bail, the exception and jail, the rule – Thus, the courts are burdened with a sensitive task on hand – In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail – ‘Justifications’ must be searched from the case diary and the final report submitted before the Special Court – Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true – It is only if the test for rejection of bail is not satisfied, the courts would proceed to decide the bail application in accordance with the ‘tripod test’-flight risk, influencing witnesses, tampering with evidence. [Paras 16, 18-20] Unlawful Activities (Prevention) Act, 1967 – Bail applications – Test for rejection – Guidelines on the approach that Courts must partake in – Reiterated. [Para 23] Case Law Cited NIA v. Zahoor Ahmad Shah Watali, [2019] 5 SCR 1060: (2019) 5 SCC 1 – relied on. Union of India v. KA Najeeb, [2021] 1 SCR 443 : (2021) 3 SCC 713; Devender Gupta v. National Investigating Agency : 2014 (2) ALD Cri. 251; Kekhriesatuo Tep and 136 [2024] 2 S.C.R. Digital Supreme Court Reports Ors. v. National Investigation Agency [2023] 3 SCR 523: (2023) 6 SCC 58; Sudesh Kedia v. Union of India : (2021) 4 SCC 704- referred to. List of Acts Code of Criminal Procedure, 1973; Penal Code, 1860; Unlawful Activities (Prevention)Act, 1967; Arms
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