Delhi High Court Grants Bail To Human Rights Activist Accused In LeT Network Case, Says Prolonged Custody Cannot Be Ignored
Court’s Decision
The Delhi High Court set aside the order dated 13.12.2024 passed by the Trial Court rejecting bail and granted bail to the appellant in RC No. 30/2021/NIA/DLI, P.S. NIA, arising out of NIA/4/2022.
The Court granted bail primarily considering:
- The appellant had been in custody since 22.11.2021, amounting to almost 4½ years of incarceration.
- The trial was still at the stage of arguments on framing of charge.
- The prosecution intended to examine 197 witnesses if charge was framed.
- There was no likelihood of the trial ending soon.
- The appellant’s rights under Article 21 of the Constitution had to be balanced against the restriction under Section 43D(5) of the UAPA.
- The appellant was also considered infirm, having lost his leg in 2004 and using a prosthetic leg.
The Court clarified that the observations made in the judgment shall not be treated as findings on the merits of the case.
Facts
The appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008, challenging the Trial Court’s order rejecting regular bail.
The prosecution case arose from information received by the Central Government regarding Lashkar-e-Taiba, a Pakistan-based proscribed terrorist organisation, allegedly establishing a network of operatives/over-ground workers in India for assisting terrorist activities.
On 05.11.2021, the Ministry of Home Affairs directed the NIA to investigate. Pursuant to this, FIR RC-30/2021/NIA/DLI was registered on 06.11.2021 under Sections 120B, 121 and 121A of IPC and Sections 17, 18, 18B, 38 and 40 of the UAPA.
The appellant’s name was not mentioned in the FIR. During investigation, several persons including the appellant were arrested. The appellant was arrested on 22.11.2021.
The NIA filed its first charge-sheet on 13.05.2022 against seven accused persons. The appellant was charge-sheeted under Sections 120B and 121A IPC, Section 8 of the Prevention of Corruption Act, and Sections 13, 18, 18B, 38 and 39 of UAPA.
Specific Allegations Against The Appellant
The prosecution alleged that the appellant was the Program Coordinator of Jammu and Kashmir Coalition of Civil Society and Chairperson of Asian Federation Against Involuntary Disappearances, and that in the guise of human rights activism he was part of a larger conspiracy.
The main allegations were:
- He allegedly recruited Muneer Ahmad Kataria as an over-ground worker for LeT.
- He allegedly facilitated contact between Muneer Ahmad Kataria and Pakistan-based handler Hyder @ Ali @ Yusuf.
- He allegedly collected information regarding Army vehicle movement near the Line of Control, road conditions, army camps, security structures, and officers involved in militancy operations.
- The prosecution alleged that a dossier titled “High-Ranking Perpetrators” was maintained.
- Visiting cards including those of spokespersons of Hizb-ul-Mujahideen were allegedly found at the JKCCS office.
- The appellant had allegedly visited Pakistan in 2007 and 2015 and met Syed Salauddin, Amir of Hizb-ul-Mujahideen.
- He was alleged to have participated in and supported protests after the Burhan Wani encounter in 2016.
- He was alleged to have negotiated illegal gratification through Muneer Ahmad Kataria to Arvind Digvijay Negi, then Superintendent of Police, for release of digital devices seized in another NIA case.
Issues
- Whether the appellant was entitled to bail despite the statutory restriction under Section 43D(5) of the UAPA.
- Whether prolonged incarceration and delay in trial could justify grant of bail in a UAPA case.
- Whether the appellant’s Article 21 right to liberty and speedy trial could override or dilute the embargo under Section 43D(5) of the UAPA in the facts of the case.
- Whether the prosecution material, including the approver’s statement and seized documents, justified continued incarceration pending trial.
- Whether the appellant’s infirmity was a relevant factor for grant of bail.
Appellant’s Arguments
The appellant argued that he had already spent more than four years in custody, while the trial had not even moved beyond the stage of framing of charge. It was argued that the prosecution intended to examine more than 190 witnesses, making early conclusion of trial unlikely.
The appellant submitted that prolonged incarceration itself was a ground for bail and that in such cases, constitutional courts may grant bail even in UAPA matters.
It was further argued that bail is the rule and jail is the exception, including in UAPA cases.
On facts, the appellant argued that he was a human rights activist and had documented issues such as disappearances, alleged fake encounters, militarisation of Kashmir, and human rights violations. He contended that reports such as “Structures of Violence Report” and “Alleged Perpetrators 2012” were publicly available and formed part of legitimate human rights documentation.
Regarding the Pakistan visits, it was argued that the visits were made on valid visa and were in the public domain.
Regarding the allegation of inciting protests after Burhan Wani’s killing, it was argued that political dissent, criticism of State policy, or advocacy of self-determination cannot attract UAPA unless it crosses the threshold of incitement or active involvement in violence.
Regarding the allegation of recruiting Muneer Ahmad Kataria as an OGW, the appellant argued that the prosecution was relying substantially on the statement of a co-accused who had turned approver and who himself claimed to be an NIA informer.
The appellant also relied on his infirmity, stating that he had lost his leg in a landmine blast in 2004 and had been using a prosthetic leg since then.
Respondent/NIA’s Arguments
The NIA opposed bail and argued that even in cases of prolonged incarceration, the statutory context of UAPA and the nature of allegations must be considered.
The NIA submitted that Section 43D(5) creates a statutory bar against bail where the accusations appear prima facie true.
The prosecution argued that the appellant was a flight risk, had international sympathisers, and had a record of attempting to tamper with evidence and influence investigation.
The NIA relied on the statement of Muneer Ahmad Kataria, who had turned approver, and submitted that his statement was corroborated by other witnesses.
The NIA alleged that the appellant was not merely associated with co-accused persons but had committed overt acts, including recruitment of OGWs, transmission of intelligence to a Pakistan-based handler, orchestration of public violence, possession of targeting lists of Indian Army personnel, and corrupt engagement with a former NIA officer.
The NIA further argued that the appellant could not claim parity with co-accused who were not charged under UAPA. It also pointed out that bail to co-accused Zafar Abbas had been rejected and the rejection was upheld by the Supreme Court.
The NIA disputed the appellant’s claim of infirmity as a ground for bail, arguing that despite losing his leg, the appellant had actively worked, travelled, and participated in field activities.
Analysis
The Court first examined Section 43D(5) of the UAPA, which restricts bail where the Court finds reasonable grounds for believing that the accusation is prima facie true.
The Court relied on the principle that statutory restrictions under UAPA do not completely oust the power of constitutional courts to grant bail where continued detention violates Article 21.
The Court considered Union of India v. K.A. Najeeb, where the Supreme Court held that the rigours of UAPA bail restrictions may melt down where there is no likelihood of trial being completed within a reasonable time and the accused has undergone substantial incarceration.
The Court also examined Gulfisha Fatima, where the Supreme Court explained that delay alone is not a mechanical ground for bail and that the Court must conduct a contextual inquiry, considering the nature of allegations, stage of proceedings, causes of delay, role of accused, risks upon release, and statutory framework.
The Court noted that the correctness of Gulfisha Fatima on the interplay between Article 21 and Section 43D(5) had been doubted in Syed Iftikhar Andrabi. The Court also noted that the issue had been referred to a larger Bench in Tasleem Ahmed.
However, relying on Union Territory of Ladakh v. Jammu and Kashmir National Conference, the Court held that merely because an issue is referred to a larger Bench, High Courts must continue to decide cases on the basis of the law as it stands.
The Court then considered the appellant’s case on bail.
Reasoning
The Court noted that the appellant had been in custody since 22.11.2021 and had undergone prolonged incarceration of almost 4½ years.
The Court further noted that the trial was still at the stage of arguments on framing of charge and that the prosecution intended to examine 197 witnesses if charge was framed. Therefore, there was no likelihood of the trial ending soon.
The Court conducted a surface evaluation of the prosecution case.
It noted that the prosecution case was primarily based on the statement of Muneer Ahmad Kataria, who had turned approver and who himself claimed to be an NIA informer. The Court observed that although the statement raised serious allegations, the evidence was yet to be tested at trial.
Regarding the documents seized from JKCCS, the Court noted the appellant’s submission that the material referred to by the prosecution was publicly available in the form of articles and reports, including “Structure of Violence Report” and “Alleged Perpetrators 2012”. The Court recorded that the submission that these materials were public and that one report had even been shared with the Indian Army was not disputed by the learned SPP.
Regarding the allegations of Pakistan visits and Burhan Wani protests, the Court noted both the allegations and the appellant’s defence but did not return any conclusive finding on merits.
The Court held that these allegations and defences had to be tested against the long period of incarceration and the fact that there was no likelihood of the trial ending soon.
The Court expressly observed that the appellant’s rights under Article 21 of the Constitution need to be balanced and may even trump the restriction imposed under Section 43D(5) of UAPA.
The Court also distinguished the case of co-accused Zafar Abbas, whose bail rejection had been upheld, by noting that the allegations against that co-accused were very different from those against the appellant.
The Court further considered the appellant’s infirmity and held that the appellant deserved special consideration.
Precedents Referred
The Court referred to several important decisions on UAPA bail, prolonged incarceration, Article 21 and statutory bail restrictions, including:
- Union of India v. K.A. Najeeb
- Gulfisha Fatima v. State (Govt. of NCT of Delhi)
- Syed Iftikhar Andrabi v. National Investigation Agency
- Tasleem Ahmed v. State Govt. of NCT of Delhi
- Union Territory of Ladakh v. Jammu and Kashmir National Conference
- Kareem @ Sadam v. State by National Investigation Agency
- Alemla Jamir v. National Investigation Agency
- Tapas Kumar Palit v. State of Chhattisgarh
- Zahoor Ahmad Shah Watali
- Gurwinder Singh
- K.A. Najeeb
- Shoma Kanti Sen
- Athar Parwez
- Javed Gulam Nabi Shaikh
- Jalaluddin Khan
Bail Conditions
The appellant was directed to be released on bail subject to several conditions, including:
- Personal bond of Rs. 2,00,000 with two sureties of the like amount.
- Surrender of passport, or affidavit if no passport is held.
- No travel outside the National Capital Territory of Delhi without prior permission of the Trial Court.
- Use of only one mobile phone and/or landline number during trial, to remain switched on.
- Disclosure of residential address, contact number and email to the Investigating Officer and Trial Court.
- No change of residence or contact details without seven days’ prior intimation.
- Appearance before the Trial Court on every date unless exempted.
- No conduct delaying the proceedings.
- No contact, influence, threat or communication with prosecution witnesses, protected witnesses, complainant or persons acquainted with facts of the case.
- No tampering with evidence, electronic material, records, devices or documents.
- No public statement through print, electronic media or social media touching upon the merits of the case, evidence, witnesses or pending trial.
- No participation in activity prejudicing public order or integrity of trial.
- No uploading, sharing, dissemination or circulation of anti-national material on social media or otherwise.
- Reporting to the Investigating Officer once every fortnight or as directed by the Trial Court.
- In case of breach of conditions, prosecution may seek cancellation of bail.
Conclusion
The Delhi High Court allowed the appeal, set aside the Trial Court’s order rejecting bail, and directed the release of the appellant on bail in the NIA case.
The Court made it clear that the release would remain subject to any order passed in any other case where the appellant may be detained or in custody.
The Court also clarified that its observations shall not be construed as findings on the merits of the case.
Implications
This judgment is significant because it reiterates that even in UAPA cases, prolonged incarceration and the right to speedy trial under Article 21 remain important considerations.
The Court did not dilute the seriousness of the allegations but held that continued incarceration must be assessed in the context of the stage of trial, expected delay, number of witnesses, the nature of evidence, and the accused’s individual circumstances.
The judgment reinforces that Section 43D(5) of the UAPA is a serious statutory restriction, but it does not completely override constitutional guarantees of liberty and speedy trial.
This decision will be relevant in bail matters where the accused has spent a long period in custody, charges are yet to be framed, and trial is unlikely to conclude soon.
