Case Note & Summary
The appellant, Asim Shariff, accused No.5, filed a criminal appeal under Section 21 of the National Investigation Agency Act, 2008, challenging the order dated 03.12.2018 passed by the 49th Additional City Civil and Sessions Judge (Special Court for NIA cases) at Bengaluru in Spl.C.C.No.181/2017, which rejected his bail application under Section 439 of the Code of Criminal Procedure, 1973. The case originated from a complaint by Sri Jayaram, leading to the registration of Crime No.124/2016 at Commercial Street Police Station, later re-registered as RC.04/2016-17 by the National Investigation Agency (NIA). The appellant was charged with offences under Sections 120B, 302 read with 34 of the Indian Penal Code, 1860, and Sections 16(1)(a), 18, and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The appellant sought bail on the ground that there was no prima facie evidence linking him to the alleged conspiracy or terrorist act. The respondent, State by NIA Hyderabad, opposed the bail, citing the bar under Section 43D(5) of the UAPA, which restricts bail if the court believes the accusations are prima facie true. The High Court of Karnataka, after hearing arguments and perusing the charge sheet, held that the bar under Section 43D(5) does not apply if there is no reasonable ground to believe the accused is guilty. The court found that the appellant's role was not clearly established in the charge sheet, and there was no specific overt act attributed to him. The court also noted that the appellant had been in custody for a considerable period and that the trial was likely to take time. Consequently, the court allowed the appeal, set aside the impugned order, and granted bail to the appellant subject to conditions.
Headnote
A) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Section 43D(5) - Prima Facie Case - The court considered whether the bar under Section 43D(5) of UAPA applies when there is no prima facie evidence of the accused's involvement in a terrorist act or conspiracy. Held that the bar does not operate if the accusations are not prima facie true, and bail may be granted if there is no reasonable ground to believe the accused is guilty. (Paras 10-15) B) Criminal Law - Bail - National Investigation Agency Act, 2008 - Section 21 - Appeal against rejection of bail - The court examined the scope of appeal under Section 21 of the NIA Act, which allows the High Court to consider the correctness of the lower court's order. Held that the appellate court can re-appreciate evidence to determine if the bail rejection was justified. (Paras 3-5) C) Criminal Law - Conspiracy - Indian Penal Code, 1860 - Section 120B - Murder - Section 302 read with 34 - The court analyzed the role of the appellant in the alleged conspiracy to commit murder. Held that mere presence or association without specific overt acts does not establish conspiracy, and the appellant's role was not clearly defined in the charge sheet. (Paras 16-20)
Issue of Consideration
Whether the appellant is entitled to bail under Section 439 CrPC read with Section 21 of the NIA Act, 2008, given the bar under Section 43D(5) of the UAPA, 1967.
Final Decision
The appeal is allowed. The impugned order dated 03.12.2018 passed in Spl.C.C.No.181/2017 is set aside. The appellant is ordered to be released on bail on executing a personal bond for a sum of Rs.2,00,000/- with two sureties to the satisfaction of the Special Court, subject to conditions including not tampering with evidence and appearing before the court as required.
Law Points
- Bail
- Unlawful Activities (Prevention) Act
- 1967
- Section 43D(5)
- prima facie case
- conspiracy
- murder
- National Investigation Agency Act
- 2008
- Section 21
