'Bail is rule, jail an exception' can be applied in UAPA cases: Supreme Court

A bench of justices Abhay S Oka and Augustine George Masih said if courts start denying bail in deserving cases, it will be a violation of fundamental rights.

New Delhi: The Supreme Court on Tuesday said that when a case is made out, the courts should not have any hesitation in granting bail, even though the allegations of the prosecution may be very serious, since “bail is the rule and jail is an exception” is a settled law.

A bench of Justices Abhay S Oka and Augustine George Masih said the rule can be applied in cases registered under special law like the Unlawful Activities (Prevention) Act.

The court granted bail to a retired police constable, an alleged member of Popular Front of India, arrested under the UAPA, saying there was not even an allegation in the charge sheet that he was a member of any terrorist organisation.

The court opined even in a case like the present one, where there are stringent conditions for the grant of bail in the relevant statutes, the rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied.

It also pointed out the rule also means that once a case is made out for the grant of bail, the court cannot decline to grant bail.

"If the courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution," the bench said.

Appellant Jalaluddin Khan was arrested on July 12, 2022 a day after raid at his house registered in the name of his wife in Patna. The portion of the house was allegedly let out to co accused and certain incriminating materials related to PFI was seized. It was alleged a meeting took place in which directions were issued to the trained PFI members to attack and kill the selected targets, including suspended BJP member Nupur Sharma for making derogatory remarks against the religion.

The court noted the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated, it said.

"The charge sheet does not mention the name of the terrorist organisation within the meaning of Section 2(m) of which the appellant was a member. We find that the PFI is not a terrorist organisation, as is evident from the first schedule," the bench said.

In the case, the court noted the charge sheet does not contain any material to show any connection of the appellant with PFI before letting out first floor premises to the other accused.

The court said the charge sheet described in detail the contents of the document styled “India 2047 Towards Rule of Islamic India”.

However, "If the appellant intended to allow the conduct of the objectionable activities of PFI by giving first floor premises on rent, he would not have installed CCTV cameras," it said.

Going by the statement of protected witness, the bench said, "We find that there was no discussion about the activities of PFI in the meeting held on May 29, 2022. According to the witness, the direction to kill Nupur Sharma was issued in June 2022 and not in the meeting of May 29, 2022."

The court said the charge sheet attributed certain statements to the protected witness, which he did not make. "NIA owes an explanation for that. The investigating machinery has to be fair," it said.

The bench noted there is no material produced on record to show that the appellant advocated, abetted, advised, or incited the commission of terrorist acts or any preparatory activity.

The appellant’s son conducted the negotiations for giving first floor of the house for rent and there is no allegation in the charge sheet against the appellant that he organised any camps to impart training in terrorism, it said.

The court held, "It is impossible to record a prima facie finding that there were reasonable grounds for believing that the accusation against the appellant of commission of offences under the UAPA was prima facie true. No antecedents of the appellant have been brought on record."