Title: GURWINDER SINGH VERSUS STATE OF PUNJAB & ANOTHER
CRIMINAL APPEAL NO.704 of 2024
Date of Judgment: February 07, 2024
CORAM: Justice M.M. Sundresh & Justice Aravind Kumar
Facts of the Case:
The case began on October 19, 2018, when Sh. Varinder Kumar, Inspector, CIA Staff, received secret information about two individuals hanging cloth banners advocating for “Khalistan Jindabad” and “Khalistan Referendum 2020” at Pillars Kot Mit Singh Flyover, Amritsar. The police apprehended Sukhraj Singh and Malkeet Singh on the spot and registered a case against them under various sections of the Indian Penal Code (IPC). Subsequent investigation led to the arrest of several other individuals allegedly involved in a module of the banned terrorist organization “Sikh for Justice.”
The investigation uncovered the receipt of funds through illegal means from the banned organization “Sikhs for Justice,” which were intended for furthering the separatist ideology of Khalistan and carrying out terrorist activities. The National Investigation Agency (NIA) took over the investigation due to the severity of the charges involved.
The involvement of the present appellant, Gurwinder Singh, emerged from the disclosure statement of a co-accused, Bikramjit Singh, recorded while in NIA custody. According to this statement, Gurwinder Singh accompanied Bikramjit Singh and another individual to Srinagar with the intention of purchasing a pistol. However, they were unable to obtain one and were offered RDX instead, which they declined.
Gurwinder Singh’s own disclosure statement corroborated this narrative, stating that he initially refused to accompany his childhood friend Harpreet Singh to Srinagar but eventually agreed after continuous insistence.
Gurwinder Singh’s bail application was dismissed by the trial court, citing reasonable grounds to believe the accusations against him. This decision was upheld by the High Court of Punjab and Haryana, which also noted the seriousness of the offense and the non-examination of protected witnesses.
The present appeal challenges the orders of both the trial court and the High Court, seeking bail for Gurwinder Singh in the NIA case. The appellant contends that the refusal of bail is unjustified given the circumstances of the case.
Laws Involved:
- Section 439 of the Code of Criminal Procedure, 1973
- Sections 124A, 153A, 153B, 120-B of the Indian Penal Code, 1860
- Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act, 1967
- Sections 25 and 54 of the Arms Act, 1959
Issues raised by the Court:
Whether or not lower court’s decision for rejection of bail justified under Section 43D of UAP Act?
Courts Judgment and Analysis:
The court’s analysis of the bail application in the present case involved a thorough examination of legal provisions, judicial precedents, and the material available on record. The court began its analysis by highlighting the significance of Section 43D (5) of the Unlawful Activities Prevention (UAPA) Act, which imposes stringent restrictions on granting bail for offenses under Chapters IV and VI of the Act. This section mandates that a person accused of such offenses cannot be released on bail unless the Public Prosecutor has been heard, and if the court finds reasonable grounds to believe that the accusations are prima facie true based on the case diary or the report under Section 173 of the Code of Criminal Procedure (CrPC).
The court emphasized that bail under the UAP Act is not governed by the conventional principle that “bail is the rule, jail is the exception.” Instead, bail is considered an exception, with the legislative intention being to prioritize detention over release. This is evident from the language of Section 43D(5), which uses mandatory language (“shall not be released”) as opposed to discretionary language found in other bail provisions.
They elucidated a twin-prong test for deciding bail applications under the UAP Act. Firstly, the court must assess whether there are reasonable grounds to believe that the accusations are prima facie true, based on an examination of the case diary and final report. Secondly, even if the first test is satisfied, the court must consider general principles of bail under Section 439 of the CrPC, including flight risk, tampering with evidence, and influencing witnesses.
Drawing from judicial precedents such as Zahoor Ali Watali’s case, the court outlined guidelines for assessing the prima facie truth of accusations. It stressed that at the pre-charge sheet stage, the court’s satisfaction is lighter than at subsequent stages, such as post-charge sheet or post-charges. The court emphasized that the assessment should be based on broad probabilities, without detailed evaluation of evidence.
Moreover, the court emphasized the importance of considering the material on record as a whole, rather than analyzing individual pieces of evidence piecemeal. It highlighted that the contents of documents must be presumed true at this stage, and the admissibility of documents relied upon by the prosecution cannot be questioned.
Applying these principles to the present case, the court analyzed the material on record, including communication patterns, disclosure statements, and the nature of charges. Ultimately, the court concluded that the material prima facie indicated the accused’s complicity in conspiracy under Section 18 of the UAP Act. Consequently, the court rejected the bail application and upheld the lower courts’ decisions.
In conclusion, the court’s analysis underscored the stringent bail provisions under the UAP Act and provided a comprehensive framework for assessing bail applications in terrorism-related cases. The court’s ultimate holding was to reject the appellant’s bail application, affirming the lower courts’ decisions.
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Written by- Aditi
