National Investigation Agency v. Zahoor Ahmad Shah Watali
Supreme Court of India, 2 April 2019, 2 judges
Under the proviso to Section 43D(5) UAPA, a court deciding bail must look at the totality of the prosecution material on broad probabilities, without testing admissibility; the High Court's grant of bail was set aside.
Facts
The respondent was Accused No. 10 in an NIA case registered on 30 May 2017 for offences under Sections 120B, 121 and 121A IPC and several sections of the Unlawful Activities (Prevention) Act, 1967, alleging that he acted as a conduit for funds from abroad, including from Accused No. 1, described as chief of a proscribed organisation, and the Pakistan High Commission, to separatists in Jammu and Kashmir. The Special Court (NIA) refused bail on 8 June 2018. The Delhi High Court granted bail on 13 September 2018, treating witness statements and documents filed with the charge-sheet as inadmissible. The NIA appealed.
Questions before the Court
- What does the court have to be satisfied about under the proviso to Section 43D(5) of the UAPA before granting bail, and what does 'prima facie true' mean?
- Can a court considering bail under Section 43D(5) discard material in the charge-sheet as inadmissible in evidence?
- Was the High Court right to grant bail to the respondent?
What the Court held
- Under the proviso to Section 43D(5), bail can be granted only if the court, on the case diary or the police report, finds no reasonable grounds for believing the accusation to be prima facie true; if there are such grounds, the bar on bail applies.
- 'Prima facie true' means the material collected must, on its face, show the accused's complicity and prevail unless contradicted or disproved. This satisfaction is lighter than the 'not guilty' finding required under TADA, MCOCA and the NDPS Act, and lighter than that needed for discharge or framing charges.
- At the bail stage the court must not dissect the evidence or weigh its merits. It records a finding on broad probabilities, taking the totality of the material with the report under Section 173 CrPC and the case diary.
- Admissibility is a matter for trial. Documents and statements cannot be discarded at the bail stage as inadmissible; the court must take them into account as they are.
- The High Court erred in discarding the material; the Designated Court rightly found reasonable grounds for believing the accusation prima facie true, so its order refusing bail was restored.
Why it matters
The judgment explains the bail bar in Section 43D(5) of the UAPA. It defines 'prima facie true', contrasts it with the 'not guilty' standard of other special statutes, and directs courts to assess the prosecution material as a whole on broad probabilities without testing admissibility. It notes that Section 43D applies from the registration of the FIR until the conclusion of the trial for offences under Chapters IV and VI of the Act.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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 concerned accused 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.”
“However, the Court may release such accused on bail only if it is of the opinion, on perusal of the case diary and/or the report made under Section 173 of Cr.P.C. that there are “no reasonable grounds” for believing that the accusation against such person is prima facie true. Conversely, if in the opinion of the Court, there are reasonable grounds for believing that the accusation against such person is prima facie true, the question of granting bail would not arise as the bar under the first part of the proviso of no bail in such cases would operate.”
“Be it noted that the special provision, Section 43D of the 1967 Act, applies right from the stage of registration of FIR for offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof.”
“For that, 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. In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. For, the issue of admissibility of the document/evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is.”
Provisions interpreted
- Section 43D(5), Unlawful Activities (Prevention) Act, 1967
- Section 173, Code of Criminal Procedure, 1973Now: BNSS 193(8) (NCRB correspondence table)
Case and bench
- Parties
- National Investigation Agency v. Zahoor Ahmad Shah Watali
- Case
- Criminal Appeal No. 578 of 2019 (arising out of SLP (Crl.) No. 7857 of 2018)
- Decided
- 2 April 2019
- Bench
- A.M. Khanwilkar, Ajay Rastogi
- Opinions
- Unanimous judgment written by A.M. Khanwilkar, J., with Ajay Rastogi, J.
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