22, Aug 2024 | CJP Team

Even as the constitutional courts have started underlining the need to follow due process of law, not only at a trial stage, but even during the investigation, police and investigative agencies continue to override court directives through repetitive filing of cases, opening decades old cases overnight, and booking individuals under stringent laws like Prevention of Money Laundering Act, 2002 (PMLA), Unlawful Activities Prevention Act, 1967 (UAPA), and draconian preventive detention legislations like National Security Act, 1980 and Jammu and Kashmir Public Safety Act, 1978.

Recently, in the case of Jalaluddin Khan vs. Union of India (Cr. A. 3173 of 2024), the apex court bench of Justice Abhay Oka and Augustine George Masih reiterated 8-point prepositions as first identified in NIA v. Zahoor Ahmad Shah Watali judgement [(2019) 5 SCC 1] for considering the bail plea of an accused.

These include:

1. Meaning of “prima facie true”: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.
2. Degree of satisfaction at pre chargesheet, post chargesheet and post-charges — compared: Once charges are framed, it will be safe to assume that a very strong suspicion was found upon the materials before the Court. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet do not make out reasonable grounds for believing that the accusation against him is prima facie true.
3. Reasoning, necessary but no detailed evaluation of evidence: The exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.
4. Record a finding on broad probabilities, not based on proof beyond doubt: The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.
5. Duration of the limitation under Section 43-D (5) of UAPA: Section 43-D of the UAPA applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the Act until the conclusion of the trial.
6. Material on record must be analysed as a “whole”; no piecemeal analysis: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.
7. Contents of documents to be presumed as true: The Court must look at the contents of the document and take such document into account as it is.
8. Admissibility of documents relied upon by prosecution cannot be questioned: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence.

The bench said that through Thwaha Fasal vs. Union of India [(2022) 14 SCC 766] the court clarified that the grounds for believing that the accusation against the accused is prima facie true must be “reasonable grounds.” In the present case, the court granted bail to Jalaluddin, who was accused by the NIA of renting out his property to Popular Front of India member to carry out the activities of the Front and himself participating in their meeting. 

The bench said “There is nothing in the chargesheet which shows that the appellant has taken part in or has committed unlawful activities as defined in the UAPA. There is no specific material to show that the appellant advocated, abetted, or incited commission of any unlawful activities.” It further noted that “Assuming that the co-accused were indulging in terrorist acts or were making any act preparatory to the commission of terrorist acts, there is absolutely no material on record to show that there was any conspiracy to commit any terrorist act to which the appellant was a party.” The court pointed out that even the chargesheet does not mention any allegation as to the affiliation of the accused with a terrorist gang, and further explained that PFI is not a terrorist organisation under the UAPA.

Significantly, the bench highlighted that the NIA had attributed a witness statement in the chargesheet which the witness had not made, and said that the agency owes an explanation. The verdict reads that “The investigating machinery has to be fair. But, in this case, paragraph 17.16 indicates to the contrary.”  The judgement further mentions that “‘Bail is the rule and jail is an exception’ is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good.” While granting the bail to the accused the bench noted that “The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail,” and if the courts start denying bail in deserving case, that would constitute violation of Article 21. 

Bail and then jail again: circumventing due process

In other cases, too, the courts have granted bail to the accused, but the agencies in such cases have bypassed the due process of law and have subverted the judicial outcome. Article 14 reported that Jammu and Kashmir High Court has quashed 4 detention orders against Kashmiri Lawyer Zahid Ali, however, the police rearrested him in a separate UAPA case linked 2019 prison riots incident occurring inside Srinagar Central Jail. 

Notably, while quashing the fourth detention order against Ali, Justice Rahul Bharti of J&K High Court had pulled up the police and magistrate for circumventing previous court orders and ordered the state to pay 5 lakh compensation. In his verdict he remarked that “Read between and behind the lines the dossier and the grounds of detention, the SSP Pulwama and the respondent No.2-District Magistrate Pulwama are literally meaning to debunk the three judgments of this court.”

Similarly, in another order delivered by Justice Bharti, he noted that “A district magistrate acting under the regime of J&K Public Safety Act, 1978, or for that matter even the Government of UT of J&K, is not supposed to parrot the police dictated version in the dossier and serve detention order on a platter,” Indian Express reported. 

The verdict further stated that “In India, which is a democratic country governed by rule of law, it cannot be heard to be said by the police and the district magistracy that a citizen was picked up to be interrogated without any registration of a criminal case against him, and from that purported interrogation, a case for preventive detention was found to be made out against the petitioner”.

In the recent case of Delhi CM Arvind Kejriwal, the CBI arrested Kejriwal on June 25, 2024, even as the ED had already registered the case and taken his custody in the matter pertaining to alleged irregularities in Delhi Excise Policy. The CBI registered another case on the same subject and secured his custody. Thus, while he got interim bail from the apex court in the ED case on July 12, he continues to be behind the bars due to the case registered against him by the CBI. His lawyer Abhishek Manu Singhvi had called his arrest by the CBI as insurance arrest to prevent his release from the jail. 

Related:

Understanding the PMLA & its bail conditions | Legal Insights | CJP

PMLA Bail Conditions: Relaxation for Women, Sick & Infirm | CJP

Bail under PMLA: Part 2 | CJP

Supreme Court grants bail to Manish Sisodia in excise policy case after 17 months of incarceration | SabrangIndia