The Allahabad High Court has granted bail to K.A. Rauf Sherif, Campus Front of India (CFI) leader, who was arrested under the Unlawful Activities (Prevention) Act, 1967, in the case related to the Hathras conspiracy.
The Division Bench of Justice Attau Rahman Masoodi and Justice Ajai Kumar Srivastava-I passed this order while hearing a Criminal Appeal filed by K.A. Rauf Sherif.
The appeal under Section 21 of the National Investigation Agency Act, 2008, has been filed by the appellant, K.A Rauf Sherif challenging the order dated 06.12.2022 passed by Special Judge, NIA/ATS, Additional District and Sessions Judge, Lucknow in Bail Application, arising out of Case under Sections 153-A, 295-A, 124- A, 120B I.P.C, Sections 17 and 18 of UAPA and Sections 65 and 72 of the IT Act, 2000, Police Station Manth, District Mathura, whereby bail application of the appellant was rejected.
Counsel for the appellant has submitted that initially the first information report came to be lodged against four accused persons. The appellant was not named in the first information report.
His further submission is that there is no allegation against the appellant that he was associated with any terrorist organization or was soliciting any donation or funding or had any linkage with either PFI or CFI.
His further submission is that no incriminating article was recovered from the possession of appellant or on his pointing out. The appellant is neither engaged in any unlawful activity as defined under Section 2(o) of the UAPA nor is a part of any unlawful association as defined under Section 2 (p) of UAPA. The investigating agency has already filed a charge-sheet against the appellant and the trial is yet to commence.
Counsel for the appellant next argued that the offences under Sections mentioned in the chargesheet are not made out against the appellant even if the story of the prosecution is believed on its face value. Sections 17 and 18 of the UAPA which relates to raising funds for terrorist activities and punishment thereof and conspiracy for committing any terrorist act and punishment thereof are not even remotely attracted to the facts of the case.
Counsel for the appellant has also argued that the Special Court has completely failed to appreciate that the perusal of the allegations made in the F.I.R and the contents of the case diary including the charge-sheet and material collated by the investigating agency clearly evince that accusation made against the appellant is, prima facie, false.
It is further argued that in view of the provisions of Section 43-D (5) of the UAPA, it is the duty of the court dealing with the bail application of the accused to satisfy itself with regard to there being reasonable grounds for believing that the accusation against the accused is, prima facie, true. This provision has been inserted with a view to ensure that the stringent provisions of the U.A.P.A are not misused against innocent persons.
In the matter, the Special Court has completely failed to satisfy itself about the applicability of Section 43-D (5) of the UAPA and has merely rejected bail application of the appellant merely because a charge-sheet has been filed against him and the bail application of the co accused was rejected.
There was neither any occasion nor any motive for the appellant to commit the offence in question. The appellant is languishing in jail for about two years even though there is no prima facie case against him and no active role has been attributed to him by the investigating agency.
It is a settled position of law that presence of statutory restrictions like Section 43-D (5) of UAPA, per se does not oust the jurisdiction of the Constitutional Courts to grant bail on grounds of violation of Part-III of the Constitution of India. Indeed, both the restrictions under the statutes as well as the powers exercisable under constitutional jurisdiction may be well harmonized.
There are about 55 witnesses of the prosecution as per the charge-sheet. The trial is yet to commence. The appellant has been languishing in jail since 14.02.2021.
Counsel for the appellant has vehemently submitted that the named co-accused, namely, Sidhique Kappan, who has been assigned the lead role, has been granted bail by the Apex Court vide order dated 09.09.2022.
On the basis of aforesaid submissions, counsel for the appellant prays that the appeal deserves to be allowed and the appellant deserves to be released on bail.
Per contra, A.G.A countered the arguments of the counsel for the appellant and argued that the Special Court has rejected the bail application of the appellant giving valid reasons.
His further submission is that the chargesheet has been filed against the appellant after collecting sufficient evidence against him. The appellant is associated with the PFI organization which is involved in terrorist activities in the country and is trying to create unrest in the country by spreading caste and religious animosity. The bail application of the accused appellant was rejected by the Special Court on the basis of sufficient grounds as ample evidence is there against the appellant, hence the appeal should be dismissed.
“Having heard counsel for parties and upon perusal of the records it transpires that initially the first information report came to be lodged against four accused persons. The appellant was not named in the first information report. No incriminating article was recovered from the possession of appellant or on his pointing out. The investigating agency has already filed a charge-sheet against the appellant and the trial is yet to commence. The named co-accused, namely, Sidhique Kappan, who has been assigned the lead role, has been granted bail by the Apex Court vide order dated 09.09.2022. The other co-accused, namely, Alam @ Mohammad Alam, who was named in the F.I.R and Atikur Rahman have been granted bail by a Division Bench of the Court vide orders dated 23.08.2022 and 15.03.2023. The appellant has been languishing in jail since 14.02.2021.
Considering the facts and circumstance of the case, without expressing any opinion on the merits of the case, we are of the considered view that the court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside”, the Court observed while allowing the appeal.
The Court ordered that,
Consequently, the order dated 06.12.2022 passed by Special Judge, NIA/ATS, Additional District and Sessions Judge, Lucknow in Bail Application, arising out of Case under Sections 153-A, 295-A, 124-A, 120B I.P.C, Sections 17 and 18 of Unlawful Activities (Prevention) Act, 1967 and Sections 65 and 72 of IT Act, 2000, Police Station Manth is hereby set-aside.
Let the appellant, K.A Rauf Sherif be released on bail in the aforesaid case crime number with the following conditions:-
a) The appellant shall furnish a personal bond and two sureties of the like amount, to the satisfaction of the trial court.
b) The appellant shall furnish to the investigating officer/S.H.O a cellphone number on which the appellant may be contacted at any time and shall ensure that the number is kept active and switched-on at all times.
c) The appellant shall ordinarily reside at his place of residence and shall inform the investigating officer if he changes his usual place of residence.
d) If the appellant has a passport, he shall surrender the same to the Trial Court and shall not travel out of the country without prior permission of the Trial Court.
e) The appellant shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of the case. The appellant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial.