Case Note & Summary
The National Investigation Agency (NIA) appealed against an order dated 17/03/2020 passed by the Additional Sessions Judge and Special Judge under the NIA Court, Greater Mumbai, granting bail to the respondent, Areeb Ejaz Majeed. The respondent was arrested in connection with FIR No. RC-01/2014/NIA/MUM dated 28/11/2014 for offences under Section 125 of the Indian Penal Code (IPC) and Sections 16, 18, and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The case of the prosecution was that the respondent, along with three absconding accused, traveled to Iraq in May 2014 ostensibly for pilgrimage but instead joined the Islamic State of Iraq and Syria (ISIS), a proscribed terrorist organization. The respondent was allegedly involved in terrorist activities in Iraq and later returned to India in November 2014, where he was arrested. The NIA Court granted bail on the ground that there was no prima facie case against the respondent for the offences charged, and the bar under Section 43D(5) of UAPA was not attracted. The NIA challenged this order, arguing that the respondent's association with ISIS and his activities in Iraq constituted a terrorist act and conspiracy to wage war against India. The Bombay High Court, after hearing the parties, dismissed the appeal and upheld the bail order. The court held that the material on record did not establish a prima facie case of a terrorist act under Section 16 UAPA, as the respondent's alleged actions were not directed against India or its allies. The court also noted that the respondent had been in custody for over six years and that the trial was not likely to commence soon. The court imposed stringent conditions on the respondent's bail, including surrendering his passport, reporting to the police station weekly, and not leaving the country without permission.
Headnote
A) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Section 43D(5) - Prima Facie Case - The court examined whether the bar on bail under Section 43D(5) UAPA was attracted. Held that the bar applies only if there are reasonable grounds to believe the accusation is prima facie true. In this case, the court found that the material on record did not establish a prima facie case of a terrorist act under Section 16 UAPA, as the respondent's alleged association with ISIS and travel to Iraq did not amount to conspiracy to commit a terrorist act in India. (Paras 1-38) B) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Section 16 - Terrorist Act - The court interpreted the definition of 'terrorist act' under Section 15 UAPA and held that mere membership or association with a terrorist organization, without evidence of preparation, conspiracy, or commission of a terrorist act, does not constitute an offence under Section 16. The respondent's actions of traveling to Iraq and joining ISIS were not shown to be part of a conspiracy to commit a terrorist act in India. (Paras 15-30) C) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Section 18 - Conspiracy - The court held that for an offence under Section 18 UAPA (conspiracy, etc.), there must be evidence of a meeting of minds to commit a terrorist act. The prosecution failed to provide such evidence, as the respondent's alleged conspiracy was with persons who were not charged and the acts were not directed against India. (Paras 20-35) D) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Section 20 - Being Member of Terrorist Gang/Organisation - The court noted that Section 20 UAPA requires the accused to be a member of a terrorist gang or organization. While ISIS is a proscribed organization, the court found that the respondent's membership was not established beyond doubt, and even if it were, the bar under Section 43D(5) would not automatically apply without a prima facie case of a terrorist act. (Paras 25-38) E) Criminal Law - Bail - Indian Penal Code, 1860 - Section 125 - Waging War Against Any Asiatic Power in Alliance with Government - The court observed that the offence under Section 125 IPC requires waging war against a power in alliance with the Government of India. The respondent's actions in Iraq did not constitute waging war against India or its allies, as the alleged acts were against the Iraqi government, not an ally of India. (Paras 10-15)
Issue of Consideration
Whether the NIA Court erred in granting bail to the respondent-accused under the stringent provisions of the Unlawful Activities (Prevention) Act, 1967, particularly in light of Section 43D(5) which imposes a bar on bail if the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
Final Decision
The Bombay High Court dismissed the appeal and upheld the bail order dated 17/03/2020 passed by the NIA Court, subject to stringent conditions including surrendering passport, reporting to police station weekly, and not leaving the country without permission.
Law Points
- Bail under UAPA
- Section 43D(5) UAPA
- Prima facie case
- Terrorist act
- Conspiracy
- Section 16 UAPA
- Section 18 UAPA
- Section 20 UAPA
- Section 125 IPC
- Bail conditions
- Right to speedy trial
