Trial Court's Difficulty To Form Opinion Doesn't Justify Denial Of Bail, Cannot Abdicate Duty U/S 43-D(5) UAPA: J&K&L High Court

Reaffirming the judicial responsibility under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the Jammu and Kashmir and Ladakh High Court has held that the trial court's observation that it was “difficult to frame an opinion at this stage” could not serve as a ground to deny bail.

The Bench comprising Justices Sanjeev Kumar and Sanjay Parihar, observed that such a stance amounts to “abdicating the statutory duty to arrive at a satisfaction as contemplated under Section 43-D(5)” of the UAPA.

Background:

The appeal before the High Court was filed under Section 21 of the National Investigation Agency Act, 2008, by one Farooq Ahmed, a 30-year-old resident of Poonch, who is presently lodged in Central Jail, Kot Bhalwal, Jammu. He challenged the order passed by the Additional Sessions Judge, Poonch (Special Judge under the NIA Act), which had declined to grant him bail in FIR registered for offences under Sections 17, 18, 20, and 40 of the UAPA read with Sections 120-B, 121, 122, and 123 IPC.

Farooq, represented by Advocate I.H. Bhat, argued that there were no reasonable grounds to believe that the accusations against him were true. He contended that he had been languishing in custody since August 9, 2021, without any substantive evidence, and that the trial court's inability to form an opinion demonstrated non-application of mind to the legal standard under Section 43-D(5) of the UAPA.

On the other hand, Senior Additional Advocate General Monika Kohli, appearing for the Union Territory of J&K, opposed the appeal, asserting that the appellant was involved in grave anti-national activities and was an active member of the proscribed organisation Jammu & Kashmir Ghaznavi Force (JKGF). She contended that incriminating material had been recovered from his possession and that he, along with co-accused, had been raising funds to sustain the terrorist outfit.

Courts Observations:

After hearing both sides and perusing the charge sheet and accompanying documents, the Division Bench made detailed observations on the deficiencies in the trial court's approach and the statutory requirements under the UAPA.

The Court noted that the investigation had revealed a network involving co-accused, who were allegedly in contact with Pakistan's Inter Services Agency (ISI) to promote narco-terror activities. Recoveries in cash and JKGF posters based on disclosures of co-accused persons. Further recoveries were made from Mohd. Rehman, while Mohd. Parvaiz was alleged to have provided ₹1 lakh in cash and Pakistani posters to the appellant and others for recruitment purposes in JKGF.

Despite the serious nature of allegations, the High Court observed that the trial court failed to appreciate the scope of Section 43-D(5), which lays down a statutory embargo on granting bail only when there are reasonable grounds for believing that the accusations are prima facie true.

Delivering the opinion, Justice Sanjay Parihar, speaking for the Bench, remarked,

“By recording that it is 'difficult to frame an opinion at this stage,' the trial court has virtually abdicated its statutory duty to arrive at a satisfaction as contemplated under Section 43-D(5), thereby rendering its reasoning unsustainable in law.”

To underline the legal position, the Court referred to National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, observing that,

“The degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction required for considering a discharge application or framing of charges.”

Further, citing Union of India v. Shri Shiv Shanker Kesari (2007) 7 SCC 798, the Bench explained,

“The expression 'reasonable grounds' connotes substantial probable causes for believing that the accused is not guilty of the offence charged. The word 'reasonable' has in law the prima facie meaning of reasonable concerning those circumstances of which the actor, called on to act reasonably, knows or ought to know.”

The Court emphasised that since the appellant's plea was that there was no sufficient material even to raise suspicion, it was incumbent upon the trial court to frame an opinion one way or the other whether reasonable grounds existed for believing that the accusations were true or otherwise.

Observing that the trial court had not appreciated the import and scope of Section 43-D(5) correctly the court clarified that while the provision restricts bail in terrorism-related cases, it does not empower courts to evade their duty to make a judicial assessment of the available material.

The Bench observed,

“The modified application of the Code of Criminal Procedure in respect of offences under Chapters IV and VI of UAPA mandates that the Court, before granting bail, must necessarily hear the Public Prosecutor and return a finding whether there existed reasonable grounds for believing that the accusation is prima facie true. Conversely, where no such grounds exist, the normal principle governing bail that bail is the rule and jail the exception would apply.”

Accordingly, the Court set aside the impugned order of the trial court and remanded the matter for fresh consideration.

Case Title: Farooq Ahmed Vs UT Of J&K

Citation: 2025 LiveLaw (JKL)

Click Here To Read/Download Judgment