The Delhi High Court has set aside the Trial Court’s order refusing bail to a Kashmiri human rights activist in an alleged terror funding case registered by the National Investigation Agency (NIA) under the Unlawful Activities (Prevention) Act, 1967 (UAPA) and directed his release. The Court asserted that even in prosecutions under the UAPA, the statutory embargo under Section 43D(5) does not extinguish the constitutional court’s power to grant bail where continued detention becomes constitutionally disproportionate in light of Article 21.
The Court held that the relevant inquiry is accused-specific and contextual, and must take into account the nature of the allegations, the role attributed to the individual accused, the prima facie material, the length of incarceration already undergone, the stage and realistic trajectory of the trial, and the possibility that prolonged detention may effectively become punitive before adjudication. On the facts of the case, the Court found that incarceration of almost four and a half years, the matter still being at the stage of framing of charge, the large number of proposed witnesses, the prosecution case being primarily anchored in the statement of an approver yet to be tested, and the appellant’s infirmity together justified grant of bail, without any expression on the ultimate merits of the case.
The Division Bench comprising Justice Navin Chawla and Justice Ravinder Dudeja first examined the statutory bar under Section 43D(5) UAPA and then considered the constitutional position emerging from decision of Union of India v. K.A. Najeeb [(2021) 3 SCC 713]. The Bench observed that statutory restrictions under Section 43D(5) do not completely exclude the power of constitutional courts to grant bail where prolonged incarceration and the unlikelihood of an early conclusion of trial engage Article 21. At the same time, the Bench recognised that delay cannot be treated mechanically or in isolation and that the inquiry remains contextual, having regard to the nature of allegations, role attributed to the accused, stage of proceedings, likely duration of trial and attendant risks.
Applying these principles, the Bench noted that the appellant had been in custody since Nov 22, 2021 and had undergone incarceration of almost 4½ years, while the matter was still at the stage of arguments on charge and the prosecution proposed to examine 197 witnesses. On a surface evaluation of the material, the Bench recorded that the prosecution case against the appellant was primarily based on the statement of co-accused Muneer Ahmad Kataria, who had turned approver and had himself claimed to be an NIA informer, and whose evidence was yet to be tested in trial.
The Bench also noted that some of the documents relied upon by the prosecution, including the “Structure of Violence Report” and “Alleged Perpetrators 2012”, were asserted by the appellant to be public documents available on the JKCCS website, and that this submission was not disputed by the SPP. It further observed that the allegations concerning Pakistan visits related to open visits in 2007 and 2015, and that the allegations regarding post-Burhan Wani protests also had to be weighed against the long period of incarceration and the absence of any likelihood of early conclusion of trial.
The Bench also distinguished the case of co-accused Zafar Abbas, whose bail had been rejected earlier, by observing that the allegations against him were very different from those against the present appellant. In addition, the Bench accepted that the appellant was infirm and held that this was a factor deserving special consideration, notwithstanding the prosecution’s argument that the appellant had continued his activities despite that condition. Without expressing any final view on the merits of the charges or the defence, the Bench concluded that the appellant’s Article 21 rights had to be balanced against the statutory restriction and that, in the facts of the case, he should be granted bail.
Briefly, appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008 against the order of the Trial Court rejecting the appellant’s bail application in NIA Case. The prosecution case was that a Pakistan-based LeT handler had established an over-ground workers network in India, and that the appellant, though not named in the FIR, was later arrested and charge-sheeted for allegedly participating in that conspiracy. The allegations against him included recruiting Muneer Ahmad Kataria as an OGW, facilitating his contact with a Pakistan-based handler, collecting information regarding army movement, camps and officers under the guise of human rights activism, maintaining dossiers concerning officers, engaging with persons linked to proscribed organisations, participating in and instigating protests in Kashmir after the Burhan Wani encounter, and negotiating payment of illegal gratification to secure release of seized digital devices. He was charge-sheeted under Sections 120B and 121A IPC, Section 8 of the Prevention of Corruption (Amendment) Act, 2018, and Sections 13, 18, 18B, 38 and 39 of the UAPA.
During the appeal, it was noted that a supplementary charge-sheet had been filed and that co-accused Muneer Ahmad Kataria had been granted approver status. In his statement under Section 164 CrPC., he stated that the appellant introduced him to Hyder@Ali@Yusuf, informed him that the said person had links with LeT, and paid him Rs. 1.50 lakhs to be passed to Arvind Digvijay Negi for release of the appellant’s seized digital gadgets. The appellant, on the other hand, argued that he had been in custody for more than four years, the trial was still at the stage of framing of charge with about 190 witnesses, that his activities formed part of public human rights documentation, and that his physical condition as a person with a prosthetic leg was also relevant to bail. The prosecution opposed bail, relying on Section 43D(5) UAPA, the seriousness of the allegations, the risk of flight, alleged capacity to influence witnesses, and material said to corroborate the approver’s statement, including witness statements, chats, social media material and documents recovered from JKCCS.
