Updated: June 16, 2021 10:27:17 am
The Delhi High Court, in its order granting bail to student activists Natasha Narwal and Devanagana Kalita in a UAPA case, has pulled up a Special Court which had earlier denied their bail applications and noted that it “proceeded essentially on an uncritical acceptance of the allegations contained in the subject chargesheet”.
The HC bench of Justices Siddharth Mridul and Anup Jairam Bhambani in their order said that the Special Court has to apply its own independent mind and form its own independent judicial review as to whether an offence under UAPA is disclosed in the police chargesheet and in the material placed along with it.
The High Court said that offences under the UAPA are “treated as extremely serious, inviting very severe punishment; and therefore, the formation of an independent judicial view by the court at every step of the way is imperative”.
The Special Court had, while rejecting their bail applications, noted that under section 45 of the UAPA, sanction of the Central Government is required for a court to take cognizance. Before the Central Government gives such sanction, it should consider an independent authority’s report, which will make an independent review of the evidence gathered in the course of investigation. This independent authority is appointed by the Central Government.
Following this review, the Special Court said that since such ‘independent review’ by an ‘independent authority’ must already have been undertaken in respect of the evidence gathered during the investigation, on the basis of which the Central Government has granted sanction for prosecution for offences under Chapters IV and VI of UAPA, this lends credence to the allegations.
On this, the High Court said that the Special Court accepted the allegations “without any analysis or appreciation of the gravamen of the offences alleged”.
The High Court said, “In our reading of the impugned order, the learned Special Court appears to believe that the grant of sanction by the Central Government all but obviates the need for the court to apply its own mind or to consider whether any offence under Chapters IV and VI of the UAPA is made out”.
“Special Court has also proceeded on the basis that the appellant was a member of Pinjra Tod, DPSG, Warriors, and ‘Auraton ka Inquilab’ and was ‘part of a multi-layered conspiracy and in regular touch and reporting to the higher conspirators’, which, the learned Special Court concludes, makes her actions culpable,” the High Court order read.
The bench said: “We would wish to immediately debunk this misconception that merely because section 45 of the UAPA mandates an independent review of the evidence gathered by an independent authority appointed by the Central Government; that legal requirement in itself, in any manner, obviates the need for the court to apply its own independent mind and to form its own independent judicial view as to whether any offence under the UAPA is disclosed in the chargesheet and in the material placed along with it. It does not.”
The High Court said it was of the view that “the purported independent review of evidence by a purported independent authority; and the fact that the Central Government has, based thereupon, granted sanction of prosecution for offences under Chapters IV or VI of the UAPA, must never enter the consideration of the court when deciding whether the ingredients of any offence under the UAPA are disclosed in the chargesheet.”
Additional Sessions Judge Amitabh Rawat had rejected Kalita’s and Narwal’s bail applications on January 28 this year in two separate but almost verbatim orders. ASJ Rawat, in his order, had observed that in a “conspiracy of such a large scale, not having a video was not so vital as generally conspiracy, by its very nature, is hatched in secrecy and not having videos of such a conspiracy was obvious rather than doubtful”.
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