UAPA accused can be granted bail if Police fail to explain how he poses “clear danger” to society: J&K High Court

The Jammu & Kashmir and Ladakh High Court recently held that in matters concerning bail of accused under the Unlawful Activities (Prevention) Act (UAPA), the investigating agency making the arrest under the Act would have to justify the arrest on the ground of “clear and present danger” which the accused person poses to the society [Peerzada Shah Fahad v. UT of J&K and Anr]. .The Court observed that existence of prima facie evidence against the accused would be of no avail if there was no justification for the arrest on the doctrine of clear and present danger to the society."We hold, that the investigating agency, investigating a case under the UAPA, has the unbridled authority to arrest or not to arrest under the provisions of the UAPA. However, upon arrest, the investigating agency would have to justify the arrest on the anvil of “clear and present danger” of the accused to the society at large, if enlarged on bail," the Court ruled. The division bench of Justice Atul Sreedharan and Justice Mohan Lal (who retired last week) added that if the investigating agency does not satisfy the Court in this regard and is unable to justify the arrest, the same would be violative of the fundamental rights of the accused.It further said that the accused in such a scenario may be released on bail despite the stringent conditions for release of accused under UAPA. However, the Court also clarified that there can be no rule of thumb to assess whether the accused was a clear and present danger.It must be seen in the backdrop of the specific facts and circumstances of each case, the Court added..The bench made the observations while granting bail to journalist and editor Fahad Shah in a UAPA case against him in relation to the publishing an article on The Kashmir Walla news portal in 2011. The Court also in the same order decided his petition against framing of charges by the trial court..The ruling means that an accused, even if there is a prima facie case against him, can be granted bail if there was no need to arrest him because there existed no “no clear and present danger” to society on account of his liberty.On the other hand, Section 43D (5) of the UAPA states that no accused of terrorist activities can be released unless the Public Prosecutor has been granted opportunity to oppose the plea for bail. It also provides that no accused can be released on bail if there are reasonable grounds for believing that the accusation against such person is prima facie true. .The Police has accused Shah of being part of an alleged “operation” to build and propagate the narrative of secessionist movement in Jammu & Kashmir and receiving foreign funds in violation of Foreign Contribution (Regulation) Act..While dealing with Shah's bail plea, the Court opined that the legislative intent behind the stringent conditions for bail under Section 43D (5) of the UAPA was to ensure that those who are “clear and present danger” to the society and whose relationship with the offence is proximate and direct, do not get bail during the pendency of trial.“It was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time,” the bench said.The Court further said that an arrest under the provisions of the UAPA without any legal justification would be an arbitrary exercise of discretion granted to the Police.It further opined that such an arrest would also be violative of Articles 14 and 21 of the Constitution of India.Thus, the Court opined that the bar of the proviso to Section 43D (5) of the UAPA would be of no consequence and the accused would be entitled to bail.On merits, the Court said the article was allegedly published eleven years back and no evidence has been brought on record that it was responsible for provoking persons to take to militancy.“Not a single witness says this,” it noted..While deciding the petitioner’s revision against the charges framed against him by the trial court, the Court prima facie opined that the offence of conspiracy under Section 18 of the UAPA was not made out since the alleged act attributed to him does not come within the definition of terrorist act.“Prima facie there is no material to suggest that the article hosted by the Appellant has any content that provokes people to take to arms and resort to violence,” the Court observed.However, the Court also said there was sufficient material to prima facie hold that the petitioner can be tried for the offence of unlawful activities under Section 13.With regard to the accusation of waging war or or abetting waging of war against the Government of India, the Court found there was no material on record to back it. “As regards the offence under Section 153B IPC is concerned, the offending article does not attempt to bring about disaffection on the basis on caste or religion,” the Court said further.However, the Court also said there was sufficient material prima facie view that Shah had received remittances from overseas without intimating the authorities, for him to stand trial under Foreign Contribution Regulation Act..Senior Advocate PN Raina and Advocate JA Hamal represented the petitionerSenior Additional Advocates General Monika Kohli and Mohsin Qadri represented the State[Read Judgment]