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Activists stay in jail despite bail, police go to SC: ‘Mini trial’ by Delhi HC, remarks ‘perverse’

Police seek stay, say HC ‘watered down’ UAPA; tell city court need time to verify accused address

Student activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha.

Objecting to the Delhi High Court order granting bail to three student activists booked under the UAPA anti-terror law in a Northeast Delhi riots case, the Delhi Police approached the Supreme Court Wednesday, urging it to immediately stay the order.

In Special Leave Petitions, the Special Cell of Delhi Police said the High Court conducted a “mini trial” in a bail matter and “watered down” provisions of the UAPA “which will have wide ramifications and will affect all the cases registered by the National Investigation Agency (NIA)” under the Act.

The Delhi Police filed the SLPs even as it sought time until June 21 to conduct verification of the addresses and sureties of student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha who were granted bail Tuesday by the High Court. They remained in custody Wednesday – they were arrested in May 2020 and later booked under the UAPA.

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Following the HC order, the three students moved applications in a city court for their immediate release on bail. But on Wednesday, police told the court of Additional Sessions Judge Ravinder Bedi that they would be able to file the verification report only by June 22.

ASJ Bedi adjourned the matter for Thursday. The media was not allowed to attend proceedings.

In its application, police urged the court to direct the UIDAI to submit a report on the verification of the Aadhaar cards of the accused. The application stated that the three accused are residents of places outside Delhi. “The outstation permanent address verification of all accused persons is pending due to paucity of time,” it stated.

In its SLPs in the Supreme Court, police have challenged the grant of bail by the High Court bench of Justices Siddharth Mridul and Anup Jairam Bhambhani, saying it “decided the case in hand on a pre-conceived and a completely erroneous illusion, as if, the present case was a simpliciter case of protest by students” and “appears to be based more on the social media narrative than the evidence gathered and elaborated in the chargesheet”.

Police took strong objection to the bench’s remark “that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred”. It said this “is an insinuation, albeit unfounded and perverse, that the present case was registered by the Government to suppress dissent. A fortiori, that it was a false case” and that this “was beyond the preview of the bail petition”.

The HC, police said, “has not only conducted a mini-trial but has also recorded perverse finding which are contrary to record and the arguments made during the hearing of the case to arrive at a finding that case under Sections 15, 17 and 18 of UAPA was prima facie not made out against the respondent”.

“Unfortunately, contrary to the evidence on record and the detailed oral and written submission made/filed”, the High Court, it said, “completely lost sight of the evidences and statements which were produced before it and had arrived at the impugned judgment discarding the evidences which clearly made out a sinister plot of mass-scale riots being hatched by the respondent along with other co-conspirators”.

The HC, police said in the SLPs, “has not even adverted or analysed the cogent evidence on record of the case and has applied irrelevant considerations while granting the bail to the respondent and other co-conspirators.”

It said “there was a cause and evidence of terrorist activity against the respondent; there was corroborative evidence, however, while applying the legislative mandate the… High Court misdirected itself and gave ex-facie perverse findings to arrive a conclusion that no case of UAPA was made out”.

The SLPs said “furthermore, in pursuit of establishing that the present case was mere case of protest and an attempt by the Government to suppress the dissent… High Court has in the judgment… also read down the provision of UAPA, specially that of the definition of terrorism contemplated in Section 15 of the Act”.

The order, it said, “has held that provisions of UAPA can only be applied to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less” and contended that “this… was firstly, an irrelevant consideration to grant bail to the respondent, and secondly, will have far reaching consequences for cases investigated by NIA and other investigating agencies” and is “thus unsustainable in law and deserves to be stayed” immediately.

The SLPs submitted that the HC “has misinterpreted” the law laid down by the Supreme Court in the case of Union of India vs K A Najeeb “which will open a floodgate affecting almost every case under UAPA” and “therefore it is essential that such observations made by the High Court are stayed immediately”.

In the K A Najeeb case, the Supreme Court had said that the restriction against grant of bail in a stringent law UAPA “per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of” a fundamental right like the right to speedy trial.

However, the top court sought to draw a distinction between its application at the “commencement” of a case and later stages where the trial drags. “Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial,” it had said.

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