SC sends 8 PFI men back to jail, points to ‘manifest error’ in Madras HC order granting them bail

SC sends 8 PFI men back to jail, points to ‘manifest error’ in Madras HC order granting them bail

New Delhi: The Supreme Court Wednesday faulted the “lenient view” taken by the Madras High Court in granting bail to eight members of the banned outfit Popular Front of India (PFI) and set aside its seven-month-old decision to set them free.

A bench led by Justice Bela Trivedi ordered the eight to surrender to the National Investigation Agency (NIA), after accepting the federal anti-terror agency’s argument that the accused were “pursuing a covert agenda to radicalise particular section of the society and to work towards undermining the concept of democracy and integrity of India”.

Based on statements recorded by witnesses in the case, the bench opined that in the garb of fighting for the rights of minorities, Dalits and marginalised communities, the PFI pursued “strong communal and anti-national agenda to establish an Islamic rule in India by radicalisation of Muslims and communalisation of issues”.

NIA’s investigation, it said, showed that after recruitment by the PFI, the accused were initially given training through a beginner’s course and then advanced priming, and motivated to take up violent terrorist activities.

The bench held that based on the evidence before it, including witnesses’ statements and their past criminal record — a prima facie case was established against the eight accused. Therefore, as mentioned under sub-section (5) of Section 43(D) of UAPA, they were not entitled to bail.

Section 43(D) of UAPA lays down a stringent twin-test rule for bail in anti-terror cases. This provision reverses the jurisprudence and shifts the burden of proving innocence on the accused. The court can reject the grant of bail if it concludes that a prima facie case is made out against the accused.

On the case, the Supreme Court said: “Having regard to the seriousness and gravity of the alleged offences, previous criminal history of the respondents as mentioned in the charge-sheet, the period of custody undergone by the respondents being hardly one and half years, the severity of punishment prescribed for the alleged offences and prima facie material collected during the course of investigation, the impugned order passed by the High Court cannot be sustained.”

‘Manifest error on Madras HC’s part’

With its order the top court allowed NIA’s appeal filed against the Madras High Court decision that granted them bail in October 2023. The bail was given even though the NIA had filed its chargesheet in the case.

Arrested in September 2022 and booked under various sections of the Indian Penal Code (IPC), apart from the UAPA, the eight were accused of imparting training to hurl bombs in water-filled beer bottles, and also using weapons like knives and swords to “strike terror in the mind of people”.

The sections of UAPA imposed on them include committing a terrorist act, involvement in conspiracy to carry out a terror attack, raising funds for the said purpose and recruiting people for the same.

Advocate Rajat Nair, who appeared for the NIA, questioned the high court’s decision for its failure to comprehend the correct import of UAPA sections, particularly Section 18 which contains punishment for organising a terrorist camp. He said there was a manifest error on the high court’s part in not appreciating the overt acts and commission of alleged offences by the accused.

He relied heavily on statements of witnesses, who, he said, were protected and had recorded their version about the accused before a magistrate. Nair took strong exception to the high court’s remarks on the NIA charges, which in his view “trivialised” the seriousness of the case.

Nair submitted the accused organised weapon training for using knives and swords and tossing beer bottles filled with water on targets, which were part of the preparation for committing terrorist acts.

According to the high court, these activities do not fall under Section 15 of the UAPA, which defines the term “terrorist act” and is punishable with a minimum jail term of five years.

Defending the high court order, the counsel for the accused doubted the veracity of witnesses’ statements on the ground that they were themselves participants in the alleged act described as a terror act by the NIA.

The allegations made in these statements were vague and were not substantiated by any evidence that could make out a prima facie case against them.

SC rejects defence reasoning

The top court, however, rejected the defence’s argument. It observed that “statement of witnesses and other incriminating evidence in the form of digital devices, books, photographs etc. collected during the course of investigation and relied upon by the appellant (NIA) as recorded in the chargesheet” were sufficient for it to believe that the accusations against the accused were “prima-facie true”.

It pointed out that NIA’s appeal did not seek cancellation of bail but challenged the grant of bail to the eight. Hence the consideration applicable to hear such an appeal would require the court to find out whether the high court order was improper or an arbitrary exercise of discretion.

If the application sought cancellation of the bail, then the Supreme Court would have looked for supervening circumstances such as whether the accused was involved in tampering with evidence either during investigation or trial or threatened the witnesses, among others.

The witnesses, Supreme Court said, elaborated on the role of the eight PFI members. They were working towards “creating an Islamic state by the year 2047 through an armed struggle against the Government of India,” the court observed.

Based on broad probabilities regarding material or evidence, it is apparent that the accused had conspired or attempted to commit a terrorist act, the court held.

“Such material evidence would be sufficient to invoke Section 18. For attracting Section 18, the involvement of the accused in the actual commission of terrorist act as defined in Section 15 need not be shown,” the court added.

National security, it held, was always of paramount importance and any move to aid any terrorist act – violent or non-violent – was liable to be restricted by laws that aimed to counter terrorism. Courts, however, have to often strike a balance between the civil liberties of the accused, human rights of the victims and compelling state interest, the apex court said.

“The UAPA is one of such Acts which has been enacted to provide for effective prevention of certain unlawful activities of individuals and associations, and to deal with terrorist activities, as also to impose reasonable restrictions on the civil liberties of the persons in the interest of sovereignty and integrity of India,” the bench observed while ordering the surrender.

(Edited by Tikli Basu)