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Report No. 268

B. Terrorism and Bail

8.5 Under the 'social contract' theory, the most important role of any State is to secure its borders and protect its subjects and their property.195The crime of terrorism has peculiarities, as it raises issues of national security, peace and unity. Terrorist and Disruptive Activities Act, 1985 (TADA) and Prevention of Terrorism Act, 2002 (POTA) were enacted in order to prevent terrorism and other such disruptive activities. Section 20 (7) of TADA has prohibited the designated court or any other court from granting anticipatory bail. Further, it has been held by the Supreme Court in the case of Usman Bhai Dawood Bhai Menon v. State of Gujarat196 that, where a person accused of an offence under sections 4 and 5 of TADA is taken into custody, the High Court has no jurisdiction to entertain a bail petition either under section 439 or s. 482 of Cr.P.C.

8.6 However, it has been clarified that the High Court may entertain a petition under Article 227 of the Constitution against the order rejecting bail by the designated court on being satisfied that there is no material to show that the petitioner is involved in any offence under TADA and is eligible to set aside the order rejecting bail.197

8.7 In the case of State of Maharashtra v. Abdul Hamid198, the High Court quashed the proceedings and granted bail, but the Supreme Court set aside the order of the High Court observing that only in extreme cases, if ex facie the person accused of an offence cannot commit an offence under TADA, only then the High Court is justified in using its powers under Article 226 of the Constitution, and held that the case at hand was not of such extreme nature and hence the bail was revoked.

8.8 Under TADA, the designated court has the power to grant bail under section 20 (4) of TADA by default when the investigation is not completed within 180 days of the arrest. Bail cannot be objected on the ground that the nature of the offence alleged under TADA is grave and serious. Any request for further remand was to be made under s. 20 (4)(bb) of TADA, which would be granted if the conditions therein are satisfied. While considering an application of bail for an offence alleged under TADA, the court must apply its mind to decide whether the allegations of guilt were made on reasonable grounds.

8.9 TADA under trials are divided into four classes, as a result severe cases of terrorism could be dealt with more stringently compared to other cases. The Review Committee appointed, was directed by the Supreme Court to examine the cases against the accused person bearing in mind the direction issued by the court regarding the grant of bail.199 For the purposes of granting bail, TADA detainees may be divided into the following classes, namely-

(i) hardened under-trials whose release would be prejudicial to the case of the prosecution and whose liberty would prove a menace to the society and the complainant or prosecution witness in particular;

(ii) other under-trials whose overt cause or involvement directly attracts sections 3 and 4 of TADA;

(iii) under-trials who are roped in, exclusively by virtue of sections 120B or 149 IPC, and

(iv) those under-trials who were found possessing incriminating articles in notified areas and are booked under s. 5 of TADA. In 1996 the Supreme Court found that, out of 9,203 cases reviewed by Review Committee under the Act, 7,968 persons had been wrongly accused of TADA offences.200

8.10 Section 34 of POTA provides that the person accused of an offence may apply for bail before the special court and if the bail is refused, then an appeal may be filed before the High Court for the grant of bail invoking s. 439 Cr.P.C. In order to grant bail under POTA a prima facie case has to be established by the Court on the basis of cogent material. The Supreme Court in the case of State of T.N. v. R.R. Gopal alias Nakkeeran Gopal201, set aside the bail granted by the High Court.

It held that when there was a mere discrepancy in the description of firearms in the records during the recovery of arms and ammunition from the accused person or if there exist allegations that such accused was forced to make confession, it would not establish sufficient grounds for bail. However, the Supreme Court has held that even in respect of offences under POTA, after the period of one year of detention, the person accused of an offence would be eligible to seek bail under both the Cr.P.C and sections 49 (6) and (7) of POTA.202

8.11 In the case of Moulvi Hussain Ibrahim Umarji v. State of Gujarat 203, the petitioner was arrested in connection with the offence related to the Godhra incident which resulted in the death of 59 people and injuries to a significant number of people. The petitioner-accused was charged under various sections of IPC, POTA and the Prevention of Damage to Public Property Act, 1984, the bail was denied by the Special Judge of High Court and also the Supreme Court.

8.12 Since POTA was repealed, the Unlawful Activities (Prevention) Act, 1967 (hereinafter UAPA) was amended to include offences on terrorism. The law provides that in a bail application the public prosecutor shall have a right to be heard, and the person accused of an offence shall not be released on bail if the records show that there are reasonable grounds to believe that the accusations are prima facie true.204 In Jayanta Kumar Ghosh v. State of Assam,205 the Guwahati High Court discussed what 'prima facie true' means. It held that the Court should determine whether the accusations were 'inherently improbable or wholly unbelievable'.

Only in such circumstances the person can be released on bail. The approach to bail under UAPA is liberal than what was under POTA and TADA. Under POTA and TADA there was a virtual prohibition on bail for offences under these legislations. These laws provided enormous power to the police, as by registering a case under these legislations, they could ensure that a person would remain in jail at least for the period of the trial.206 In light of the rampant misuse of these legislations, they were repealed by Parliament.

8.13 In cases under special legislations, the period on expiry of which the right to statutory bail becomes available, is generally extended. For example, s. 20(4) TADA provided investigating authorities hundred and eighty days to file a charge-sheet before statutory bail became available. The section further stated that if the investigation is not completed, the Special Court shall extend the period up to one year on the basis of a report submitted by the public prosecutor indicating the progress of the investigation and the specific reasons for detention of the person accused of an offence beyond the said period of one hundred and eighty days.207 Similarly s. 49(2) of POTA permitted detention up to ninety days for all cases under POTA.

It also stated that if the investigation is not complete, the Special Court shall extend the period up to one hundred and eighty days on the basis of a report submitted by the public prosecutor indicating the progress of the investigation and the specific reasons for detention of such accused beyond the said ninety days.208 Similarly, under UAPA the period of detention without bail is ninety days. It likewise provides that the Special Court may extend the said period up to one hundred and eighty days based on the report submitted by the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the person accused of an offence beyond the said period of ninety days.209

The global outlook on terrorism has radically changed to reflect the need to ensure that there is a comprehensive legislative framework that takes into consideration the more dangerous era of international terrorism.210 A contextual construction of the provisions in the laws and the Constitution of India shows that the sovereign function of maintenance of national security vested with the State is its paramount function211. However, mere classification of an act as an act of terrorism should not result in the automatic denial of bail or reversal of the burden of proof. Denial of bail should not be used as a potential tool of manipulation to legitimizing actions of the State.

Amendments to Criminal Procedure Code, 1973 - Provisions relating to Bail Back

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