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

Date of the Judgment: April 12, 2023

Citation: 2023 INSC 362

Judges: B.R. Gavai, J., Sanjay Karol, J.

Can individuals who are compelled to pay money to a terrorist organization be treated the same as those who voluntarily fund such organizations? The Supreme Court of India addressed this critical question in a recent judgment, focusing on the interpretation of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The court examined whether the High Court was right in cancelling the bail granted to government employees who were allegedly forced to make payments to an unlawful organization. The judgment was delivered by a two-judge bench comprising Justice B.R. Gavai and Justice Sanjay Karol. Justice B.R. Gavai authored the judgment.

Case Background

The case involves several government employees who were allegedly compelled to pay money to an unlawful organization. The appellants, Kekhriesatuo Tep and others, were arrested on different dates – some on October 13, 2017, and one on March 25, 2018. They were accused of offenses under the UAPA. The Special Court, National Investigating Agency (NIA), Nagaland, granted them bail on October 17, 2017, and March 28, 2018, respectively. The NIA appealed these orders, and the Gauhati High Court reversed the bail orders. The appellants then approached the Supreme Court.

Timeline

Course of Proceedings

The Special Court, NIA, granted bail to the appellants, noting that they were compelled to make payments and were cooperating with the investigation. The NIA appealed to the Gauhati High Court, which reversed the bail orders. The High Court held that since the appellants had admitted to making payments, their bail should be cancelled under Section 43D(5) of the UAPA. The Supreme Court then stayed the High Court’s orders and heard the appeals.

Legal Framework

The case primarily revolves around the interpretation of Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, which deals with the grant of bail in cases involving offenses under Chapters IV and VI of the Act. This section states that a person accused of such offenses shall not be released on bail if the court believes there are reasonable grounds to believe that the accusation against the person is prima facie true. The court also considered Sections 39 and 40 of the UAPA, which define offenses related to supporting a terrorist organization.

Section 43D(5) of the UAPA states:

“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.”

Section 39 of the UAPA defines the offense of “offence relating to membership of an unlawful association”

Section 40 of the UAPA defines the offense of “offence relating to raising funds for a terrorist organization”

Arguments

Appellants’ Arguments:

• The appellants argued that they were not voluntarily contributing to the unlawful organization but were compelled to pay due to threats.
• They contended that the Special Judge had correctly differentiated between those who voluntarily commit extortion and those who are coerced.
• They highlighted that the investigating agency itself admitted the appellants were cooperating with the investigation.
• They relied on the case of Thwaha Fasal v. Union of India, arguing that the prosecution must establish mens rea (criminal intent) even at the bail stage.
• They argued that they were still employed and not suspended, indicating they were not a flight risk.

Respondent/NIA’s Arguments:

• The NIA argued that the appellants admitted to making payments to the organization.
• They submitted that the documents and supplementary charge-sheet showed that the receipts were signed by the appellants.
• They contended that Section 43D(5) of the UAPA bars bail if a prima facie case is made out, which they claimed was the case here.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the main issue before the court was:

1. Whether the High Court was right in reversing the bail orders granted by the Special Court, considering the provisions of Section 43D(5) of the UAPA and the circumstances of the case.

A sub-issue was whether the appellants had the intention to further the activities of the terrorist organization.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issue:

Authorities

The Supreme Court considered the following cases and legal provisions:

Judgment

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

How each authority was viewed by the Court?

• The Court followed Thwaha Fasal v. Union of India [2021 SCC OnLine SC 1000], emphasizing the need to establish mens rea even at the bail stage.
• The Court distinguished the interpretation of ‘prima facie’ in UAPA from ‘not guilty’ in other statutes, as explained in National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1].
• The Court used Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Another [(2005) 5 SCC 294] to interpret Section 43D(5) of the UAPA.

What weighed in the mind of the Court?

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

• The distinction between voluntary and coerced payments was critical. The Court emphasized that individuals compelled to pay under threat should not be treated the same as those who voluntarily fund terrorist activities.
• The Court noted that the prosecution had not demonstrated that the appellants intended to further the activities of the unlawful organization, which is a crucial element for offenses under Sections 39 and 40 of the UAPA.
• The Court also considered that the appellants were cooperating with the investigation and were not a flight risk.
• The Court stressed that interference by an Appellate Court in matters of personal liberty is warranted only when the Trial Court’s view is perverse or impossible, which was not the case here.

Logical Reasoning:

The Court’s reasoning was based on the principle that the prosecution must establish a prima facie case of intent to further terrorist activities, particularly when considering bail applications under UAPA. The Court rejected the High Court’s interpretation, which focused solely on the fact of payment without considering the circumstances of coercion. The Supreme Court emphasized that the Special Court’s view was not perverse or impossible and therefore, did not warrant interference by the High Court.

The Court quoted the following from the Special Judge’s order in its judgment:

“I have considered this peculiar position which has a marked difference between the extortionist and the tax payers who are under constraint… 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 must be a line drawn which differentiate the likes of accused Victo Swu and the present accused persons. In the present facts the balance is more inclined to show that the accused are victims of circumstances and to hold them on equal footing with the terrorist would be grave injustice.”

“Hence, I derive at the conclusion that 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 making payments to terrorist organizations should not be treated the same as those who voluntarily fund them.
• The prosecution must establish a prima facie case of intent to further terrorist activities, even at the stage of granting bail under UAPA.
• Appellate courts should not interfere with trial court decisions on bail unless the trial court’s view is perverse or impossible.

This judgment has significant implications for cases under the UAPA, particularly those involving allegations of funding terrorist organizations. It clarifies that the courts must consider the circumstances of the alleged offense, including whether the accused acted voluntarily or under coercion.

Directions

The Supreme Court quashed the orders of the Gauhati High Court and restored the bail granted by the Special Court, NIA. The Court also clarified that its observations should not be construed as an expression on the merits of the case.

Development of Law

The ratio decidendi of this case is that individuals who are coerced into making payments to terrorist organizations should not be treated the same as those who voluntarily fund them. This judgment emphasizes the need to establish mens rea (criminal intent) even at the stage of bail in UAPA cases. This case clarifies the interpretation of Section 43D(5) of the UAPA, highlighting the need to consider not only the fact of payment but also the circumstances under which the payment was made. This is a significant clarification in the context of UAPA, where stringent bail provisions exist. This judgment reinforces the principle that criminal intent is a crucial element for offenses under UAPA.

Conclusion

The Supreme Court’s judgment in Kekhriesatuo Tep vs. National Investigation Agency is a significant ruling that upholds the principle of personal liberty and emphasizes the importance of considering the circumstances of an alleged offense under the UAPA. The court’s decision to restore the bail granted by the Special Court underscores the need to differentiate between voluntary and coerced actions, and to establish mens rea even at the bail stage. This judgment provides crucial guidance for future cases involving similar issues.