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Law Relating To Terrorism Cases

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19 views58 pages

Law Relating To Terrorism Cases

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Saumya Chawla
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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LAWS RELATING

TO TERRORISM
CASES
JUSTICE N. KOTISWAR SINGH
Judge, Gauhati High Court
• Important facets of Indian law (substantive and
procedural), concerning terrorism related cases.

• Insight into differences between ordinary criminal laws


(substantive and procedure) and laws specifically governing
terrorism and terrorism -related cases; peculiarities and the
significance of the latter.
International Response To Terrorism
UN General Assembly :
● Resolution 60/288 of 8 September, 2006
● Resolution 72/284 of 26 June, 2018
● Reaffirmed by Resolution on 75/291 of 30 June, 2021

Global Counter Terrorism Forum


● Founded in 2011 with 30 country members including India
● Rabat Memorandum on Good Practices for Effective Counterterrorism
Practice in the Criminal Justice Sector
● The Hague Memorandum on Good Practices for the Judiciary in
Adjudicating Terrorism Offences
The Hague Memorandum
Good Practices for the Judiciary in
Adjudicating Terrorism Offences:

1 Identify and Assign Specially Trained Judges.

6: Support the Development of a Legal


2: Support the Use of Continuous Trials in
Framework or Guidelines for the Use and
Terrorism and other National Security Cases.
Protection of Evidence from Intelligence
Sources/Methods.
3: Develop Effective Trial Management Standards.

4: Support Special Measures to Protect Victims 7: Contribute to the Development of Enhanced


and Witnesses in the Trial Process. Courthouse and Judicial Security Protocols
and Effective Courtroom Security.
5: Supporting the Right of the Accused to a Fair
Trial with Adequate Legal Representation. 8: Develop and Articulate Media Guidelines
for the Court and Parties.
Cr.P.C, Indian Penal Code and Evidence Act
Trinity of the Criminal Justice System in India
• The Code of Criminal Procedure, 1973 provides the procedural backbone of the criminal justice system in
this country. In it one finds the consolidated law relating to procedures to be followed by the authorities
including the courts whenever the criminal justice system is activated, right from the stage of filing of
complaint till its culmination with trial and conviction and imposition of punishment and all the incidental
matters.
• Section 4 (1) of the Code provides that all offences under the Indian Penal Code shall be investigated,
inquired into, tried, and otherwise dealt with according to the provisions of the Code.
• Section 4(2) of the Code further provides that all offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or face of investigating, inquiring into, trying
or otherwise dealing with such offence.
• Section 5 of the Code also provides that nothing contained in the Code shall, in absence of a specific
provision to the contrary, affect any special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time
being in force.
Central Acts:

TADA X • Lapsed [1985-1995]

POTA X • Repealed [2002 – 2004]

• Unlawful Activities (Prevention) Act, 1967


UA (P) Act • Amendments in the years - 2004, 2008
and 2013

NIA Act • National Investigating Agency Act, 2008


STATE ACTS :

• Maharashtra Control of Organised Crime Act,


MCOCA 1999

• Chhattisgarh Vishesh Jan Suraksha Adhiniyam,


CVJSA 2005 (Chhattisgarh Special Public Safety Act)

• Karnataka Control of Organised Crime Act


KCOKA 2000

• Gujarat Control of Terrorism and Organized Crime


GCTOCA Act 2015

State Acts addresses a broader range of criminal activities or organised


crimes, as unlawful activities.
1. Unlawful Activities (Prevention) Act, 1967
Domestic laws
:: Terrorism 2. Prevention of Money Laundering Act, 2002

cases 3. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
4. The Narcotic Drugs and Psychotropic Substances Act, 1985
5. Maharashtra Control of Organised Crime Act, 1999
6. National Investigation Agency Act, 2008
7. Information Technology Act 2000
8. Passports Act, 1967
9. Arms Act, 1959
10. Explosive Substances Act, 1908
11. Extradition Act, 1962
12. Prevention of Seditious Meetings Act, 1911
13. Foreigners Act 1946
14. National Security Act, 1980
15. The Preventive Detention Act (PDA), 1950
Schedule to the NIA Act
• 1. The Atomic Energy Act, 1962
• 2. The Unlawful Activities (Prevention) Act, 1967
• 3. The Anti-Hijacking Act, 1982
• 4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982
• 5. The SAARC Convention (Suppression of Terrorism) Act, 1993
• 6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002
• 7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of
Unlawful Activities) Act, 2005
• 8. Offences under—(a) Chapter VI of the Indian Penal Code (45 of 1860)
[sections 121 to 130 (both inclusive)]
--- (b) Sections 489-A to 489-E (both inclusive) of the
Indian Penal Code(45 of 1860).
Terrorist Act :: Definition
15. Terrorist act (UAP Act) -- Whoever does any act with intent to threaten or
likely to threaten the unity, integrity, security, economic security, or
sovereignty of India or with intent to strike terror or likely to strike terror in
the people or any section of the people in India or in any foreign country,
(a) by using bombs, dynamite or other explosive substances or inflammable substances
or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or
by any other substances (whether biological radioactive, nuclear or otherwise) of a
hazardous nature or by any other means of whatever nature to cause or likely to cause—
(i) death of, or injuries to, any person or persons;
or
(ii) loss of, or damage to, or destruction of, property;
or
(iii) disruption of any supplies or services essential to the life of the community in India or
in any foreign country;
or
(iii-a) damage to, the monetary stability of India by way of production or smuggling or
circulation of high-quality counterfeit Indian paper currency, coin or of any other
material;
or
(iv) damage or destruction of any property in India or in a foreign country used or
intended to be used for the defense of India or in connection with any other purposes
of the Government of India, any State Government or any of their agencies;
or

(b) overawes by means of criminal force or the show of criminal force or attempts to
do so or causes death of any public functionary or attempts to cause death of any
public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person
or does any other act in order to compel the Government of India, any State
Government or the Government of a foreign country or 6[an international or inter-
governmental organization or any other person to do or abstain from doing any act;
or], commits a terrorist act.
General Assembly Resolution 49/60:

▪ “Acts intended or calculated to provoke a state


of terror in the general public, a group of
persons or particular persons for political
purposes are in any circumstance unjustifiable,
whatever the considerations of a political,
philosophical, ideological, racial, ethnic,
religious or any other nature that may be
invoked to justify them.”

Unlawful Activities (Prevention) Act, 1967
 Presently, the Principal Statute dealing with terrorist related cases.
 Amendments in UA(P)A in the years - 2004, 2008 and 2013.
 Important facets –
• Defines : Terrorist act: Amendment Act 2013- Added : “intent to threaten
Sec 15 economic security of India”

• Generating & raising funds for terrorist act and terrorist organisations.
Sec 17 &
Sec 40 • Any person who is a “member” of a terrorist gang or terrorist organisation is liable for
imprisonment. Arup Bhuyan Vs. State (2011)3 SCC 377; India Das Vs State (2011)3 SCC
Sec 20 & 380. This issue has been referred to a larger bench in 2015.
Sec 38 • Thwaha Fasal Vs UOI, Crl Appeal No. 1302 of 2021 : intention to further activities of a
terrorist organization is essential ingredient for offences under Sec 38 and 39.
Sec 35
& Sec • By 2019 Amendment Act- Central Govt. conferred power to designate “individual” as
terrorist. [Constitutional validity challenged in the Supreme Court]
36
Unlawful Activities (Prevention) Act, 1967
 Presently, the Principal Statute dealing with terrorist related cases.
 Amendments in UA(P)A in the years - 2004, 2008 and 2013.
 Important facets –
• S. 43C: Application of provisions of the Code
Sec 43C, 43 (D) • S. 43D: Modified application of certain provisions of the Code [Bail &
Remand]
• Protection of Witnesses: Sect. 17 of the NIA Act [For reasons to be recorded in
Sec 44 writing]

Sec 45 • Cognizance of Offences/Prosecution Sanction


Sec 43E, • Presumption as to offences under Section 15
46 • Admissibility of evidence collected through interception of communications

Sec 48 • Effect of the Act & rules etc. inconsistent with other enactments.
Terrorist Act :: Meaning :: Sec. 15 UAP Act
Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602
 7. …………“Terrorism” has not been defined under TADA nor is it possible to give a precise definition of “terrorism” or lay
down what constitutes “terrorism”. It may be possible to describe it as use of violence when its most important result is not
merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the
potential of producing on the society as a whole. …. the extent and reach of the intended terrorist activity travels beyond
the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is
to overawe the Government or disturb harmony of the society or “terrorise” people and the society and not only those
directly assaulted, with a view to disturb even tempo, peace and tranquility of the society and create a sense of fear and
insecurity.
 …………What distinguishes “terrorism” from other forms of violence, therefore, appears to be the deliberate and systematic
use of coercive intimidation.
 …………Every “terrorist” may be a criminal but every criminal cannot be given the label of a “terrorist” only to set in motion
the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite
intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated.

Seeni Nainar Mohammed v. State, (2017) 13 SCC 685


 20. We would, therefore, make it abundantly clear that these relied upon cases do not help the respondent to make a case
under the provisions of TADA in the absence of intention to cause terror in the minds of the people or strike on them with
terror.
Membership of Terrorist Organisation :: Sec. 38 UAP Act

Thwaha Fasal v. Union of India; 2021 SCC OnLine SC 1000

 Para 13. ....The person committing an offence under Section 38 may be a


member of a terrorist organization or he may not be a member. If the accused is a
member of terrorist organisation which indulges in terrorist act covered by
Section 15, stringent offence under Section 20 may be attracted.
 …………….....If the accused is associated with a terrorist organisation, the offence
punishable under Section 38 relating to membership of a terrorist organisation is
attracted only if he associates with terrorist organisation or professes to be
associated with a terrorist organisation with intention to further its activities.
 ……………..…The association must be with intention to further the activities of a
terrorist organisation. The activity has to be in connection with terrorist act as
defined in Section 15.
Section 48 of UAP Act

Section 48 of UAP Act:


The provisions of this Act or any rule or order made thereunder shall have effect notwithstanding
anything inconsistent therewith contained in any enactment other than this Act or any
instrument having effect by virtue of any enactment other than this Act.

Section 1 (4) of the JJ (C & P C) Act, 2015:


“(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of
this Act shall apply to all matters concerning children in need of care and protection and children
in conflict with law, including --
(i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-
integration of children in conflict with law;
(ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and
restoration of children in need of care and protection.
Section 48 of UAP Act

Question: Does it have the effect of overriding the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015, if a juvenile is charged under the UAP Act?

Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1

1555. Thus, we do not think that the JJ Act would have an overriding effect on TADA which was not
in existence on the date of commencement of the provisions of Section 1(4) of the JJ Act.
1556. TADA, being a special Act, meant to curb the menace of terrorist and disruptive activities will
have effect notwithstanding the fact that the JJ Act is general and beneficial legislation. On perusal
of aims and objects of TADA, it is clear that the act is brought into the statute books to deal with a
special category of persons viz. terrorists.
Waging War :: Section 121 IPC
Nazir Khan v. State of Delhi, (2003) 8 SCC 461 : 2003 SCC (Cri) 2033 :
… in order to support a conviction on such a charge it is not enough to show that the persons charged have
contrived to obtain possession of an armoury and have…….. used the rifles and ammunition so obtained against
the government troops. It must also be shown that the seizure of the armoury was part and parcel of a planned
operation and that their intention in resisting the troops of the Government was to overwhelm and defeat these
troops and then to go on and crush any further opposition……

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 :


▪ (1) The most important is the intention or purpose behind the defiance or rising against the Government
▪ (2) If the object and purpose is to strike at the sovereign authority of the Ruler or the Government to achieve a
public and general purpose in contradistinction to a private and a particular purpose, that is an important indicia
of waging war.
▪ (3) Even a stealthy operation to overwhelm the armed or other personnel deployed by the Government and to
attain a commanding position by which terms could be dictated to the Government might very well be an act of
waging war.
Waging War :: Section 121 IPC

(5) The court must be cautious in adopting an approach which has the effect of bringing within the
fold of Section 121 all acts of lawless and violent acts resulting in destruction of public properties,
etc., and all acts of violent resistance to the armed personnel to achieve certain political
objectives.
(6) The expression “waging war” should not be stretched too far to hold that all the acts of
disrupting public order and peace irrespective of their magnitude and repercussions could be
reckoned as acts of waging war against the Government. A balanced and realistic approach is
called for in construing the expression “waging war” irrespective of how it was viewed in the long
long past.
(7) The single most important factor which impels us to think that this is a case of waging or
attempting to wage war against the Government of India is the target of attack chosen by the slain
terrorists and conspirators and the immediate objective sought to be achieved thereby. ..The
target chosen was Parliament - a symbol of the sovereignty of the Indian republic.
Waging War :: Section 121 IPC
Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1
 (1) The expression “Government of India” is surely not used in this narrow and restricted sense in Section 121. It implies
the Indian State, the juristic embodiment of the sovereignty of the country that derives its legitimacy from the collective
will and consent of its people.
 (2) Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of
waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war. According
to the learned Senior Counsel for the State, terrorist acts prompted by an intention to strike at the sovereign authority of
the State/Government, tantamount to waging war irrespective of the number involved or the force employed.
 Terrorist acts and the acts of waging war have overlapping features. However, the degree of animus or intent and the
magnitude of the acts done or attempted to be done would assume some relevance in order to consider whether the
terrorist acts give rise to a state of war. Yet, the demarcating line is by no means clear, much less transparent. It is often a
difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with the acts aimed at overawing
the Government by means of criminal force. Conspiracy to commit the latter offence is covered by Section 121-A.”
 What matters is that the attack was aimed at India and Indians. It was by foreign nationals. People were killed for no other
reason than they were Indians; in case of foreigners, they were killed because their killing on Indian soil would embarrass
India. The conspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its financial
centre; to try to give rise to communal tensions and create internal strife and insurgency; to demand that India should
withdraw from Kashmir; and to dictate its relations with other countries. It was in furtherance of those objectives that the
attack was made, causing the loss of a large number of people and injury to an even greater number of people. Nothing
could have been more “in like manner and by like means as a foreign enemy would do”.
Sedition :: Section 124A IPC
Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769 : AIR 1962 SC 955
 ………………………..The ratio decidendi in that case, in our opinion, applied to the case in hand insofar as we propose to limit its
operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities
involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177


 Notice issued for reconsideration of the Kedar Nath Singh v. State of Bihar [Supra]

Nazir Khan v. State of Delhi, (2003) 8 SCC 461 :


 37. ……Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short
interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing,
which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the
Government and laws of the country. The objects of sedition generally are to induce discontent and insurrection, and stir up
opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to
incite the people to insurrection and rebellion. “Sedition” has been described as disloyalty in action, and the law considers as
sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or
to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm,
and generally all endeavours to promote public disorder.


Sedition :: Section 124A IPC

Vinod Dua v. Union of India 2021 SCC OnLine SC 414,

 decided on June 3, 2021


 [Para 69]. In our view, the statements by the petitioner ………., if read in the light
of the principles emanating from the decision in Kedar Nath Singh and against
the backdrop of the circumstances when they were made,
 can at best be termed as expression of disapprobation of actions of the
Government and its functionaries so that prevailing situation could be addressed
quickly and efficiently.
 They were certainly not made with the intent to incite people or showed
tendency to create disorder or disturbance of public peace by resort to violence.
National Investigation Agency Act, 2008

 The Act empowers the Central Government to constitute a special agency to be


called the National Investigation Agency for investigation and prosecution of
offences specified in the schedule to the Act.

 The Schedule to the Act includes offences under the UAPA Act, Chapter VI of the
Indian Penal Code.

 Unique feature – The Central Govt. u/s 6(4) and 6(5) of the Act , if is of the
opinion that a Schedule offence is required to be investigated under this Act, it
may, suo motto, direct the Agency to investigate the same and, whereafter, the
State u/s 6(6) is to transmit the records to the NIA and not proceed with
investigation.

*[Constitutional validity of the provisions of the Act challenged in the Supreme


Court of India by the State of Chhattisgarh]
 The Full Bench of Patna High Court in Bahadur Kora vs. State of Bihar, 2015 Cri LJ 2134 (FB) after delineating the
purpose and the objective of the law and interpreting Section 22 in the light of the procedures to be followed under
Sections 6 and 7 of the Act, rejected the opinion held in Aasif, P.K. Vs. State of Bihar, 2015(1)PLJR 1017 case.
 The Court observed that the objective of the NIA Act is not to make the Scheduled Offences triable “invariably and
exclusively” under the NIA Act or the Special Courts constituted under it. It is only when the offences are entrusted
for an investigation to the NIA that they become triable by the Special Courts. The role and purpose of Section 22 of
the Act stems from Section 7 of the Act. Section 7(b) gives discretion to the NIA to transfer the case to the state
government for investigation and trial of the offence, with the previous approval of the Central Government.
 Therefore, the state government can conduct the investigation and trial of the case under the NIA Act only if Section
7(b) is invoked. Otherwise, the state government or its investigating agency does not have any authority or discretion
to choose or pick up cases, in which the Scheduled Offences have been alleged, for investigation under the NIA Act.
 The judgment in Bahadur Kora was not challenged before the Supreme Court of India.
 In an appeal under Section 21(4) before the Division Bench of the Rajasthan High Court, Jagdish Singh Vs. State of
Rajasthan, 2016 SCC OnLine Raj 5312, NIA submitted that the NIA had accepted the Bahadur Kora judgment as the
correct position of law.
 Thus, the NIA accepted that unless the investigation of a matter was entrusted to the NIA or the NIA transferred the
same to the state investigating agency, the state investigating agency did not get the power to investigate or try the
matter in accordance with the provisions of the NIA Act.
Court’s Role :: Important areas

1. Pretrial (i) Investigation

(ii) Bail/Remand

2. Trial Appreciation of Evidence


Confession : Retraction : Use against
co -accused : Admissibility : Discovery

3. Sentencing
INVESTIGATION

Sec 154 – Sec 173 CrPC Role and Duties of Magistrates during investigation.

Vinubhai Haribhai Malaviya v. State of Gujarat


(2019) 17 SCC 1

Judicial Pronouncement * Sec 156(3) & Sec 173(8) CrPC : Magistrate has supervisory power to ensure
proper and fair investigation. Such power flows from Article 21 of the
Constitution of India.
* Such power can be exercised at a stage prior to commencement of trial. Trial
means after framing of charge. [Para 27]
* Magistrate has the power to suo motu direct further investigation.
Pre-trial stages
ARREST
43A of the UAP Act, inserted in 2008.

ARREST/SUMMONS TO A PERSON/ACCUSED IN A FOREIGN COUNTRY

Section 105 Cr.P.C.

Sections 105A to 105L Cr.P.C.

Guidelines on Mutual Legal Assistance in Criminal Matters

43C: Provisions of the CrPC shall apply unless inconsistent with the
provisions of the UAP Act to all arrests, searches and seizures under
the Act.
ANTICIPATORY BAIL

• When any person has reason to believe that he may be


arrested on an accusation of having committed a non-
bailable offence, he may apply to the High Court or the
Sec 438 (1) CrPC Court of Session for a direction under this section; and that
Court may, if it thinks fit, direct that in the event of such
arrest, he shall be released on bail.

Sec 43 D – UA (P) Act • No Anticipatory Bail for offences under the UA (P) Act.
BAIL
Sec 439 CrPC • A High Court or Court of Session may direct that any person
accused of an offence and in custody be released on bail.

Sec 43-D of UA (P) • Power substantially circumscribed.


Act
• Notwithstanding anything contained in the Code………….
• Bail can be denied if the Court believes that the accusation made against
the accused is prima facie true.
• The court must take care that the power of the court to grant bail should
not be stretched too far.
• Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5
Sec 43-D (5) of UA (P) SCC 294
Act • NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1. [Not to hold a mini
trial, examine totality of the report under Sec 173 CrPC and
accompanying documents and evidences before the court wether the
accusations are prima facie true or not]
• Union of India v. K.A. Najeeb, (2021) 3 SCC 713. [Long incarceration and
unlikelihood of trial being completed in near future can be a ground of
bail]
Release on bail under UA (P) Act has been made more difficult

• Period under Sec. 167 Cr.P.C. increased to 90 days –


Sec 43 D (2) then to 180 days.
• Police custody of an accused already under judicial
Sec 43 D (2) 2nd Proviso custody is permissible on application supported by
affidavit.

Sec 43 D (4) • No anticipatory bail.

• No bail for non Indian citizen entering the country


Sec 43 D (7) unauthorizedly or illegally.
BAIL
Judicial Pronouncements
Shaheen Welfare Association versus Union of India, (1996) 2 SCC 616.

Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC

NIA versus Zahoor Ahmed Shah Watali, (2019) 5 SCC 1.

Union of India v. K.A. Najeeb, (2021) 3 SCC 713:

Thwaha Fasal v. Union of India, 2021 SCC Online SC 1000

Iqbal Ahmed Kabir Ahmed vs. The State of Maharashtra (Cril Appeal
No.355 OF 20210 : Bombay High Court: DOJ 13 August 2021.
[Under TADA]
Shaheen Welfare Association versus Union of India (1996) 2 SCC 616.
[Para 13, 14, 16]
--- Classification of undertrials into 3 categories:
(a) hardcore undertrials
(b) acts/involvement Section 3 and/or 4 of the TADA Act :
(c) roped in, not directly attracting Section 3 and/or 4 of the TADA Act
(d) who are in position of incriminating articles in notified areas and
booked under Section 5 of TADA

Bail can be grated to (b) if in detention for 5 yrs or more + Rs.50000


(c) if in detention for 3 yrs + Rs3000
(d) if in detention for 2 yrs + Rs3000
• Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 [Under MCOCA]

• “35. Presumption of innocence is a human right…… Sub-section (4) of Section 21 must be interpreted keeping in view the
aforementioned salutary principles. ……
• 36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion
that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery
available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
• 37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials
on record only for grant of bail and for no other purpose.
• 38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too
far. …... The court at the time of considering the application for grant of bail shall consider the question from the angle as to
whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not
lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA.
• 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive
finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court
intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will
be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the
legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to
maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before
commencement of trial. …….
• 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad
probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-
section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding
that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings
recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any
bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at
the trial, without in any manner being prejudiced thereby.
NIA versus Zahoor Ahmed Shah Watali, (2019) 5 SCC 1. [Under UAP Act]
• 23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for
believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this
Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those
decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well.
Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the
Court is required to record its opinion that there are reasonable grounds for believing that the accused is “not guilty” of the
alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable
grounds for believing that the accused is “not guilty” of such offence and the satisfaction to be recorded for the purposes of the
1967 Act that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. By its very
nature, the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference
to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or
disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence.
It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless
rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is
“prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special
enactments. In any case, 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 to be recorded for
considering a discharge application or framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take
guidance from the exposition in Ranjitsing Brahmajeetsing Sharma12, wherein a three-Judge Bench of this Court was called upon
to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus: (SCC pp. 316-17)…..
• 24. A priori, 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. 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.
• 32. Accordingly, we have analysed the matter not only in light of the accusations in the FIR and the charge-sheet or the police
report made under Section 173, but also the documentary evidence and statements of the prospective witnesses recorded under
Sections 161 and 164, including the redacted statements of the protected witnesses, for considering the prayer for bail.
Union of India v. K.A. Najeeb, (2021) 3 SCC 713: [Under UAP Act]
[On speedy trial: Sec 43D less stringent: Constitutional power]

15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover
within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court
Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India15, it was held that undertrials cannot indefinitely be
detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established
before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the
risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an
individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the
accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on
bail.
17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the
ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the
restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised.
Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail
but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable
time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an
approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric
for denial of bail or for wholesale breach of constitutional right to speedy trial.
• 19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is
comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be
satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no
such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the
competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of
tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc.
Thwaha Fasal v. Union of India, 2021 SCC Online SC 1000 [Under UAP Act]

34. Now the question is whether on the basis of the materials forming part of the charge sheet, there are
reasonable grounds for believing that accusation of commission of offences under Sections 38 and 39 against
the accused nos.1 and 2 is true. As held earlier, mere association with a terrorist organisation is not sufficient
to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39.
The association and the support have to be with intention of furthering the activities of a terrorist
organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation
of the accused in the activities of a terrorist organization which are borne out from the materials forming a
part of charge sheet. At formative young age, the accused nos.1 and 2 might have been fascinated by what is
propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI
(Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused
participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie
there is no material in the charge sheet to project active participation of the accused nos.1 and 2 in the
activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part
of furthering the activities or terrorist acts of the terrorist organisation. An allegation is made that they were
found in the company of the accused no.3 on 30th November, 2019. That itself may not be sufficient to infer
the presence of intention. But that is not sufficient at this stage to draw an inference of presence of intention
on their part which is an ingredient of Sections 38 and 39 of the 1967 Act. Apart from the fact that overt acts
on their part for showing the presence of the required intention or state of mind are not borne out from the
charge sheet, prima facie, their constant association or support of the organization for a long period of time is
not borne out from the charge sheet.
36. …………………..By applying the law laid down in the case of Watali (supra), there were no reasonable grounds
for believing that the accusations against the accused nos.1 and 2 of commission of offences under Sections
38 and 39 were prima facie true.
Iqbal Ahmed Kabir Ahmed vs. The State of Maharashtra (Cril Appeal No.355 OF 20210 : Bombay High Court:
DOJ 13 August 2021. [Under UAP Act]

28. In our considered opinion, if the expression, “reasonable grounds to believe that the accusation is prima
facie true” and “reasonable grounds for believing that the accused is not guilty” are compared and
contrasted, a greater degree of satisfaction is required to record an opinion that there are reasonable
grounds to believe that the accused is not guilty of the alleged offence, albeit prima facie. The restriction on
grant of bail under the special enactments which provide for recording a satisfaction that there are
reasonable grounds to believe that the accused is not guilty of the offences charged under those
enactments, appears to be more stringent.
34. This takes us to the submission on behalf of the respondent that the fact that electric switch board in the
house of the accused No. 3 was used to solder the material to prepare a bomb leads to no other inference
than that of accused No. 3 being a confederate in the conspiracy to commit terrorist acts. Two factors are of
critical signifcance. One, nothing incriminating has been recovered from the possession of the accused No. 3
in the context of charge of preparing IED. Two, the accused No. 3 has not been charged with the offence
punishable under the Explosives Substances Act, 1908. The fact that the co-accused has pointed the switch
board in the house of the accused, where the material was allegedly soldered, without seizure of any article
or material therefrom, prima facie, may not amount to the discovery of a fact which distinctly relates to the
said disclosure statement. Nor the said statement can be admitted against the accused No. 3, under sec.10
of the Evidence Act, as with the arrest of accused No. 1, the conspiracy came to an end. For these reasons, at
this juncture, in our view, the alleged discovery can not be, prima facie, fastened against the appellant.
35. The upshot of aforesaid consideration is that the material which is pressed into service against the
appellant, prima facie, does not appear to be of such quality as to sustain a reasonable belief that the
accusation against the appellant is true. In the totality of the circumstances, the bar envisaged by section 43-
D(5) may not operate with full force and vigor.
What is the difference between:

UAP Act MCOC Act NDPS Act POTA TADA Act


Section 43-D: Section 21 (4): Section 49: Section 37: Section 20 (8):

………… no person accused


….accused person shall …… no person accused ….. shall be released ………… no person accused
……. shall, ……. be released
not be released on bail of an offence …..the court is ……. shall, ……. be released
……if Court, on a perusal on bail …….. unless…….. punishable under this satisfied that there are on bail …….. unless……..
the of the case diary or the Court is satisfied that Act or any rule made reasonable grounds the Court is satisfied that
the report made under there are reasonable there under shall be for believing that he is there are reasonable
Section 173 of the Code is grounds for believing that released on bail until not guilty of such grounds for believing that
of the opinion that there he is not guilty of such the court is satisfied offence and that he is he is not guilty of such
are reasonable grounds offence and that he is not that there are grounds not likely to commit
for believing that the for believing that he is any offence while on offence and that he is not
likely to commit any
accusation against such not guilty of bail likely to commit any
offence while on bail.
person is prima facie committing such offence while on bail.
true. offence
Appreciation of evidence
Though the actual execution of the terrorist act may leave a
heap of evidences, yet it is extremely difficult to get evidences
about the plotting and conspiracy of such terrorist act, as
these are done in utter secrecy.

The prosecution has to rely mostly on confessional


statements, witnesses who turn approver as well as scientific
and electronic evidence.

It is in this context that the trial court judges have to deal


carefully with confessional statements.
Appreciation of evidence

Confession before police –

MCOCA – Section 18 - Confession before police not below


the rank of Superintendent of Police is admissible.
[Guidelines :: Prakash Kumar v. State of Gujarat 2005 (2) SCC 409 ]

UAP Act – No such provision available.


Appreciation of evidence
LAW ON A confession must either admit in terms the offence, or at any rate
CONFESSION substantially all the facts which constitute the offence.

An admission of a gravely incriminating fact, even a conclusively


incriminating fact is not of itself a confession.

The voluntary nature of the confession depends upon whether


there was any threat, inducement or promise and its truth is
judged in the context of the entire prosecution case.

When the voluntary character of the confession and its truth are
accepted, it is safe to rely on it. Bombay Blast Case: Yakub Abdul
Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 [Para
180-180.5]
Retracted confession
Retracted confession, however, stands on a slightly different footing.
A court may take into account the retracted confession
But it must look for the reasons
(i) for the making of the confession as well as
(ii) for its retraction, and
(iii) must weigh the two to determine whether the retraction affects the voluntary
nature of the confession or not.
If the court is satisfied that it was retracted because of an afterthought or advice, the
retraction may not weigh with the court if the general facts proved in the case and the tenor
of the confession as made and the circumstances of its making and withdrawal warrant its
user.
All the same, the courts do not act upon the retracted confession without finding assurance
from some other sources as to the guilt of the accused.
Therefore, it can be stated that a true confession made voluntarily may be acted upon
with slight evidence to corroborate it, but a retracted confession requires the general
assurance that the retraction was an afterthought and that the earlier statement was true.
[Bharat v. State of U.P., (1971) 3 SCC 950 ]
Retracted confession
 A retracted confession may form the legal basis of a conviction if the
court is satisfied that it was true and was voluntarily made.
 But it has been held that a court shall not base a conviction on such a
confession without corroboration.
 It is not a rule of law, but is only rule of prudence.
 General rule of practice that it is unsafe to rely upon a confession,
much less on a retracted confession, unless the court is satisfied that
the retracted confession is true and voluntarily made and has been
corroborated in material particulars.”
 [Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094]
Corroboration of Retracted confession
There need not be meticulous examination of the entire material particulars.

It is enough that there is broad corroboration in conformity with the general


trend of the confession.

As to the extent of corroboration required, each and every circumstance


mentioned in the retracted confession regarding the complicity of the maker
need not be separately and independently corroborated.

“It would be sufficient, in our opinion, that the general trend of the confession
is substantiated by some evidence which would tally with what is contained in
the confession.” [Subramania Goundan Vs. State of Madras, 1958 SCR 428]
Use of Retracted confession against a co-accused

A confession can only be used to “lend assurance to other


evidence against a co-accused”.

“…In dealing with a case against an accused person, the court


cannot start with the confession of a co-accused person;

it must begin with other evidence adduced by the prosecution


and after it has formed its opinion with regard to the quality and
effect of the said evidence,
then it is permissible to turn to the confession in order to receive
assurance to the conclusion of guilt which the judicial mind is
about to reach on the said other evidence.”
CONFESSION OF CO-ACCUSED
When more persons than one are being tried jointly for the same offence, and a
Indian Evidence Act– confession made by one of such persons affecting himself and some other of such
Sec 30 persons is proved, the Court may take into consideration such confession as against
such other person as well as against the person who makes such confession.

Confession of one accused cannot be treated as substantive evidence against his co-
accused. Keeping excluded the confession of a co-accused, when the evidence, adduced
Evidentiary value on record, otherwise, satisfy the court of the guilt of the accused, the confession of the
co-accused can be used as an aid for strengthening the conclusion.

Surinder Kumar Khanna v IO, DIR of Revenue Intelligence


(2018) 8 SCC 271

[Para 12]: …in dealing with a case against an accused person, the court cannot
Judicial Pronouncement start with the confession of a co-accused person; it must begin with other
evidence adduced by the prosecution and after it has formed its opinion with
regard to the quality and effect of the said evidence, then it is permissible to turn
to the confession in order to receive assurance to the conclusion of guilt which
the judicial mind is about to reach on the said other evidence. That, briefly
stated, is the effect of the provisions contained in Section 30…
CONFESSION OF CO-ACCUSED

Notwithstanding anything in the Code or in the Indian Evidence Act,


1872, but subject to the provisions of this section, a confession made
by a person before a police officer not lower in rank than a
Superintendent of Police and recorded by such police officer either in
writing or on any mechanical device like cassettes, tapes or sound
tracks from out of which sounds or images can be reproduced, shall be
TADA - Sec 15 (1) admissible in the trial of such person [or co-accused, abettor or
conspirator] for an offence under this Act or rules made thereunder

Provided that co-accused, abettor or conspirator is charged


and tried in the same case together with the accused.
CONFESSION OF CO-ACCUSED

Notwithstanding anything in the Code or in the Indian Evidence Act,


1872 (1 of 1872), but subject to the provisions of this section, a
confession made by a person before a police officer not lower in rank
than a Superintendent of Police and recorded by such police officer
either in writing or on any mechanical or electronic device like
cassettes, tapes or sound tracks from out of which sound or images
can be reproduced, shall be admissible in the trial of such person for
an offence under this Act or the rules made thereunder.
POTA - Sec 31 (1)

Saquib Abdul Hameed Nachan v. State of Maharashtra – 2010 (3) SCC


Crl 1146 - reiterated the decision in Navjot Sandhu’s case [2005 (11)
SCC 600] that confession /statement made u/s 32 of POTA by an
accused person cannot be used as a piece of evidence for any purpose
against the other co-accused.
Presumption

• Section 111 A –Indian Evidence Act - Applicable to disturbed


areas.
• Section 43 E of UAP Act - Presumption unless the contrary is
shown that the accused has committed terrorist act defined
under section 15.
• Section 17 of Maharashtra Control of Organized Crime Act,
1999 – Once possession is established, the burden is on the
accused to show that he was not in conscious possession.
• Where it is proves that the accused has kidnapped or abducted
any person, the Special Court under the MCOCA Act shall
presume that it was for ransom.
REVERSE BURDEN OF PROOF
TADA
Under section 21 of the Act, the person who is accused of
Sec 21 committing a terrorist act where arms and explosives were
recovered or provided financial assistance for the commission of
the terrorist act, then the person shall be presumed to be guilty
unless contrary is proved.

POTA
Sec 53 Presumption as to offences under
section 3.—Similar as in TADA

UA (P)
Act Presumption as to offences under section 15. — Similar provision, with
Sec 43 E addition of the following : ….. (b) that by the evidence of the expert, the
finger-prints of the accused or any other definitive evidence suggesting
the involvement of the accused in the offence were found at the site of the
offence or on anything including arms and vehicles used in connection
with the commission of such offence, the Court shall presume, unless the
contrary is shown, that the accused has committed such offence.
Judicial Pronouncement

Noor Aga v State of Punjab & Anr 42. The presumption raised in a case of this nature is one for shifting the
burden subject to fulfilment of the conditions precedent therefor.
(2008) 16 SCC 417 52. Sections 35 and 54 of the Act, no doubt, raise presumptions with
regard to the culpable mental state on the part of the accused as also
place the burden of proof in this behalf on the accused; but a bare perusal
[Judgment delivered in context of the said provision would clearly show that presumption would operate
of Sec 35 and 54 of the NDPS in the trial of the accused only in the event the circumstances contained
Act, which also provides for therein are fully satisfied. An initial burden exists upon the prosecution
presumption & reverse burden and only when it stands satisfied, would the legal burden shift. Even then,
of proof] the standard of proof required for the accused to prove his innocence is
not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of the accused
on the prosecution is “beyond all reasonable doubt” but it is
“preponderance of probability” on the accused. If the prosecution fails to
prove the foundational facts so as to attract the rigours of Section 35 of
the Act, the actus reus which is possession of contraband by the accused
cannot be said to have been established.
54…..Provisions imposing reverse burden, however, must not only be
required to be strictly complied with but also may be subject to proof of
some basic facts as envisaged under the statute in question.
Evidence of Accomplice

Section 133 Indian Evidence Act, Section 114 (b) Indian Evidence Act,
Section 306 to 308 CrPC)

• Requires strict scrutiny.

Corroboration as Rule of Prudence is statutorily ordained

• Bhiva Doulu Patil v State of Maharashtra – AIR 1963 SC 599


[Para 7 at Page 601]
Leading to Discovery
Section 27 of Indian Evidence Act:

Discovery of fact is distinguishable from material object/


things

• State of Maharashtra v Damu, (2000) 6 SCC 269

Accused must be in direct or indirect custody of police at the


time of making the statement

• Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828


Conspiracy
Section 10 – Indian Evidence Act:

Reasonable ground to believe that the conspirators have conspired.

Conspiracy must be to commit an offence or actionable wrong.

Standard of proof to hold that there is a conspiracy has to be beyond


reasonable doubt.

Conspiracies are proved mostly by circumstantial evidence.

Section 120-A IPC – Defines Conspiracy

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 [Para 69]
PROTECTION OF WITNESSES
Sec 17 of the National Investigation Act, 2008

Sec 44 of UAP Act.

On 5th Dec, 2018, Hon’ble Supreme Court of India in Mahendra Chawla
and Others vs. Union of India and Others, (2019) 14 SCC 615, approved
the Centre’s draft witness protection scheme and directed all the states
to implement it until parliament comes out with a legislation.
WITNESS PROTECTION SCHEME:

During the course of investigation or trial or any offence, an


application for seeking identity protection can be filed in the
Protection of prescribed form before the competent authority , whereupon
the threat analysis report will be called for, witness/family
Identity members/or any other person will be examined to ascertain
whether there is necessity to pass an Identity Protection
order.

In appropriate case where there is a request from the witness


Relocation of and based on the Threat Analysis Report, a decision can be
taken for relocation of the witness to a safer place, keeping in
Witness view the safety, welfare and wellbeing of the witness. The
expenses will be borne from the Witness Protection Fund.

Once protection order is passed, its implementation is to


Monitoring and be monitored and reviewed in terms of the follow up
Review report received from Witness Protection Cell.

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