Supreme Court Upholds Bail for Government Employees in UAPA Case: Kekhriesatuo Tep vs. NIA (2023)

Introduction

Date of the Judgment: 12 April 2023
Citation: 2023 INSC 338
Judges: Justice B.R. Gavai and Justice Sanjay Karol.

Can individuals who are compelled to pay money to a terrorist organization be treated the same as those who voluntarily fund such groups? The Supreme Court of India recently addressed this critical question in a case involving government employees who were allegedly coerced into making payments to an unlawful organization. The court had to determine whether the High Court was right in cancelling the bail granted to the accused by the Special Court. This judgment clarifies the interpretation of Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) in cases where the accused claim to be victims of extortion rather than voluntary contributors to terrorist activities. The judgment was authored by Justice B.R. Gavai, with Justice Sanjay Karol concurring.

Case Background

The appellants, government employees, were arrested on different dates—October 13, 2017, for some, and March 25, 2018, for another—for allegedly providing funds to a banned organization. They were charged under the Unlawful Activities (Prevention) Act, 1967. The Special Court, National Investigating Agency (NIA), Nagaland, granted them bail on October 17, 2017, and March 28, 2018, respectively, after observing that the payments were not voluntary but made under coercion. The National Investigation Agency (NIA) appealed against the bail orders to the Gauhati High Court, which reversed the Special Court’s decision, leading to the present appeals before the Supreme Court. The appellants sought relief from the High Court’s order cancelling their bail.

Timeline

Legal Framework

The case revolves around the interpretation of the Unlawful Activities (Prevention) Act, 1967 (UAPA), specifically:

• Section 39 of the UAPA: Deals with the offense of associating with a terrorist organization. The provision states:

  “A person, who associates himself, or professes to be associated with a terrorist organisation, with the intention to further its activities, commits an offence relating to membership of a terrorist organisation.”

• Section 40 of the UAPA: Pertains to the offense of raising funds for a terrorist organization. The provision states:

  “A person, who raises funds for a terrorist organisation, commits an offence relating to raising funds for a terrorist organisation.”

• Section 43D(5) of the UAPA: This section outlines the conditions for granting bail to individuals accused of offenses under Chapters IV and VI of the Act. It states that bail cannot be granted if the court believes there are reasonable grounds to believe that the accusation against the person is prima facie true.

  “Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

Arguments

Appellants’ Arguments (Shri R. Basant, learned Senior Counsel):

• The Special Judge correctly granted bail after recognizing that the appellants’ actions were not voluntary but were a result of coercion.
• The investigating agency itself admitted that the appellants were cooperating with the investigation.
• The prosecution must establish a mens rea (guilty mind) to prove offenses under Sections 39 and 40 of the UAPA, as held in Thwaha Fasal v. Union of India.
• The appellants continue to work in their respective jobs, indicating they are not a flight risk or a threat to society.

Respondent’s Arguments (Smt. V. Mohana, learned Senior Counsel):

• The High Court rightly reversed the bail orders as the appellants admitted to making payments to the organization.
• Documents submitted with the supplementary charge-sheet, including signed receipts, prima facie connect the appellants to the crime.
• Section 43D(5) of the UAPA bars bail if a prima facie case is made out, and the High Court correctly applied this provision.

Sub-Submissions of the Parties

Issues Framed by the Supreme Court

The Supreme Court considered the following key issues:

1. Whether the High Court was justified in reversing the orders of the Special Judge, who had granted bail to the appellants.
2. Whether the Special Judge’s finding that the appellants were victims of extortion and not voluntary contributors to the terrorist organization was a valid consideration for granting bail.
3. Whether the requirements of Section 43D(5) of the UAPA were correctly interpreted and applied by the High Court.
4. Whether the prosecution had established a prima facie case against the appellants to deny them bail.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court relied on Thwaha Fasal v. Union of India [2021 SCC OnLine SC 1000]* to emphasize that even at the stage of granting bail, the prosecution must prima facie establish that there was an intention to further the activities of a terrorist organization.
• The Court used National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]* to clarify that the standard for prima facie satisfaction under Section 43D(5) of the UAPA is lower than the standard for establishing “not guilty” in other statutes like TADA, MCOCA, and NDPS Act.
• The Court referred to Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Another [(2005) 5 SCC 294]* to reiterate the principles for granting bail under special statutes.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Distinction between Voluntary and Coerced Payments: The Court emphasized the difference between those who willingly fund terrorist organizations and those who are compelled to do so under threat.
• Lack of Mens Rea: The Court found that the prosecution had not sufficiently demonstrated that the appellants acted with the intention to further the activities of the terrorist organization.
• Cooperation with Investigation: The fact that the appellants were cooperating with the investigation and were not a flight risk was a significant factor in the Court’s decision to uphold the bail.
• Interpretation of Section 43D(5) of UAPA: The Court clarified that the standard for prima facie satisfaction is lower than “not guilty,” and the Special Judge’s assessment was reasonable in the given circumstances.

Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio Table

Logical Reasoning

The court considered the alternative interpretation that any payment to a terrorist organization, regardless of intent, should result in denial of bail. However, it rejected this interpretation, emphasizing that the intention to further the activities of the organization is a critical element for offenses under Sections 39 and 40 of the UAPA. The court reasoned that holding individuals who are victims of extortion on equal footing with terrorists would be a grave injustice.

The decision was reached by considering the specific facts of the case, the legal provisions, and the precedents. The court concluded that the Special Judge’s view was reasonable and that the High Court’s interference was not warranted.

The Supreme Court’s decision was based on the following reasons:

• The Special Judge’s finding that the appellants were victims of extortion was valid.
• The prosecution failed to establish that the appellants had the intention to further the activities of the terrorist organization.
• The appellants were cooperating with the investigation.
• The High Court’s interference was not warranted as the Special Judge’s view was neither perverse nor impossible.

The court quoted the following from the Special Judge’s order:

“…the position of the accused who are compelled to pay tax are precarious and there is no doubt that the law enforcing agencies may not always be there for their protection and penalty for violation which always looms is eminent…there can be no crime when there is no mens rea. It is apparent to see that the accused persons have undoubtedly committed offence but it is an offence which is prompted by element of threat.”

“…the present accused are victims of the extortionists…there is the imperative duty cast upon the court to differentiate between this two individuals – those who commit extortion on their own volition and those who are compelled to pay tax by compulsion…”

“…there is no prima fade true evidences against the accused persons to show that they are sympathizers and they have been voluntarily contributing to the outlawed organizations.”

Key Takeaways

• Individuals who are coerced into paying money to terrorist organizations should not be treated the same as those who voluntarily fund such groups.
• The prosecution must establish mens rea (guilty mind) to prove offenses under Sections 39 and 40 of the UAPA.
• The standard for prima facie satisfaction under Section 43D(5) of the UAPA is lower than the standard for establishing “not guilty.”
• Cooperation with the investigation and the absence of flight risk are important factors to consider while granting bail.
• The courts should differentiate between those who commit extortion voluntarily and those who are compelled to pay under duress.

Potential Future Impact: This judgment sets a precedent for cases involving individuals who claim to be victims of extortion by terrorist organizations. It clarifies that the intention to further the activities of the organization is a crucial element for offenses under the UAPA and that a mere act of payment is not sufficient to deny bail. This decision will likely influence future cases involving similar circumstances, ensuring that the rights of individuals coerced into providing funds are protected.

Directions

The Supreme Court quashed and set aside the impugned orders of the Gauhati High Court and allowed the appeals, thereby restoring the bail granted by the Special Court.

Development of Law

Ratio Decidendi: The ratio decidendi of this case is that for offenses under Sections 39 and 40 of the Unlawful Activities (Prevention) Act, 1967, it is essential to establish that the accused acted with the intention to further the activities of a terrorist organization. Mere payment of funds, without such intention, does not constitute an offense.

Change in Previous Positions of Law: This judgment does not directly overrule any previous positions of law. However, it clarifies the interpretation of Section 43D(5) of the UAPA and emphasizes the importance of considering the intention behind the actions of the accused, particularly in cases of alleged extortion. It reinforces the principle that the prosecution must establish the necessary mens rea for offenses under the UAPA, even at the stage of granting bail.

Conclusion

In conclusion, the Supreme Court allowed the appeals, setting aside the Gauhati High Court’s orders that had cancelled the bail granted to the appellants. The Court emphasized that the appellants, who were government employees coerced into making payments to a terrorist organization, should not be treated the same as voluntary contributors. The judgment highlights the importance of establishing mens rea for offenses under the UAPA and clarifies the interpretation of Section 43D(5), ensuring that individuals who are victims of extortion are not unjustly denied bail.