Introduction:

In the case of UT of J&K Through P/s Chanapora Vs Sameer Ahmad Koka, the High Court of Jammu and Kashmir and Ladakh addressed the applicability of bail provisions under the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Division Bench, comprising Justice Sanjeev Kumar and Justice Sanjay Parihar, examined whether the stringent restrictions on granting bail under Section 43-D(5) of the UAPA applied to offences under Section 13, which pertains to “unlawful activity.”

Case Background:

The respondent, Sameer Ahmad Koka, was implicated in a case registered under Sections 13, 18, 19, and 39 of the UAPA. The prosecution alleged that he was an Over Ground Worker (OGW) affiliated with the banned terrorist outfit The Resistance Front (TRF), providing logistical support to operatives involved in attacks on civilians and off-duty police personnel. Investigations led to the recovery of anti-national materials from co-accused individuals, and it was claimed that Koka had radicalised youth towards anti-national activities. However, the designated NIA Court discharged Koka from serious offences under Sections 18, 18-B, 39, and 40 of the UAPA, framing charges only under Section 13. Subsequently, the trial court granted bail to Koka, which was challenged by the Union Territory of Jammu and Kashmir.

Arguments Presented:

Prosecution’s Perspective:

The prosecution contended that Koka’s involvement with a banned terrorist organisation and his alleged role in facilitating attacks posed a significant threat to national security. They argued that granting bail could potentially allow him to continue such activities, thereby endangering public safety.

Defence’s Perspective:

The defence argued that the stringent bail restrictions under Section 43-D(5) of the UAPA applied only to offences under Chapters IV and VI, which deal with terrorist activities and organisations. Since Koka was charged solely under Section 13, which falls under Chapter III, these restrictions were inapplicable. They emphasised the lack of concrete evidence directly linking Koka to terrorist acts and highlighted that no incriminating materials were recovered from him.

Court’s Analysis and Judgment:

The High Court meticulously examined the provisions of the UAPA and the applicability of Section 43-D(5). Justice Sanjay Parihar, authoring the judgment, clarified that Section 13 falls under Chapter III of the UAPA and is punishable with a maximum term of seven years. Consequently, the stringent restrictions on granting bail under Section 43-D(5), which pertain to offences under Chapters IV and VI, do not apply to Section 13 offences.

The Court emphasised that in the absence of the 43-D(5) embargo, bail considerations should align with the general principles under Sections 437 and 438 of the Code of Criminal Procedure (CrPC). These sections prohibit bail only in offences punishable with life imprisonment or death. The Court also noted that constitutional courts retain the power to grant bail even in UAPA cases, especially when there is prolonged incarceration and no likelihood of early trial completion.

In Koka’s case, the Court observed that despite serious allegations, the prosecution failed to present concrete evidence establishing his direct involvement with TRF militants. No incriminating materials were recovered from him, and there was no past criminal history. The Court concluded that continued detention in the face of a lesser charge would amount to pre-trial punishment, which is impermissible under the law.

Affirming the trial court’s order, the Division Bench held that Koka is presumed innocent until proven guilty and, given that the offence is punishable with a maximum of seven years, he was entitled to bail. Finding no illegality in the trial court’s discretion, the High Court dismissed the appeal filed by the UT Government and upheld the bail order.