LexTHWAHA FASAL versus UNION OF INDIA
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A B C D E F G H 797 [2021] 8 S.C.R. 797 797 THWAHA FASAL v. UNION OF INDIA (Criminal Appeal No. 1302 of 2021) OCTOBER 28, 2021 [AJAY RASTOGI AND ABHAY S. OKA, JJ.] Unlawful Activities (Prevention) Act, 1967: Factors for consideration while granting bail – While deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true – If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail – Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI – The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds – However, the Court while examining the issue of prima facie case as required by sub-section (5) of s.43D is not expected to hold a mini trial – The Court is not supposed to examine the merits and demerits of the evidence – If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true – While doing so, the Court has to take the material in the charge sheet as it is. Unlawful Activities (Prevention) Act, 1967: Grant of bail by Special court for NIA cases to accused no. 1 and 2 – Challenge against – FIR registered against accused 1 to 3 for offences punishable under ss. 20, 38 and 39 of unlawful Activities (Prevention) Act, 1967 – Investigation was transferred to National Investigation Agency (NIA) established under the NIA Act – Accused no. 3 was absconding – Charge-sheet filed by NIA against accused no. 1 and 2 under ss. 38 and 39 of 1967 Act as well as under s. A B C D E F G H 798 SUPREME COURT REPORTS [2021] 8 S.C.R. 120-B IPC – Special Court allowed bail application of accused no. 1 and 2 – On State appeal, High Court set aside bail granted to accused no. 2 while upholding bail granted to accused no. 1 – Hence instant appeal by accused no. 2 as well as by State – Held: Mere association with a terrorist organisation is not sufficient to attract s.38 and mere support given to a terrorist organisation is not sufficient to attract s.39 – The association and the support have to be with intention of furthering the activities of a terrorist organisation – In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet – At formative young age, the accused nos.1 and 2 might have been fascinated by what is propagated by CPI (Maoist) – Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form – Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project their active participation in the activities of CPI (Maoist) – Order of Special Court granting bail to accused no.2 is restored. Unlawful Activities (Prevention) Act, 1967: s.43D – For deciding the issue of prima facie case contemplated by sub-section (5) of s.43D, the case against the both accused only under ss.38 and 39 is required to be considered – In view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under s.20, a prima facie case of the accused being involved in the said offence is not made out at this stage – Sub-section (5) of s.43D will not apply to s.13, as s.13 has been incorporated in Chapter III of the 1967 Act. Unlawful Activities (Prevention) Act, 1967: s.43D – The restrictions imposed by sub-section (5) of s.43D per se do not prevent a Constitutional Court from granting bail on the ground of violation of Part III of the Constitution. Disposing of the appeals, the Court HELD: 1.1 Clause (m) of Section 2 of the Unlawful Activities (Prevention) Act, 1967 defines “terrorist organisation”. It is A B C D E F G H 799 defined as an organis
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