Alleged ISIS returnee granted Bail by Supreme Court in view of Changed Circumstances [Read Judgment]
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Alleged ISIS returnee granted Bail by Supreme Court in view of Changed Circumstances [Read Judgment]

Meera Emmanuel

The Supreme Court on Tuesday granted bail to a man accused of having attempted to join the ISIS terror group, after taking note of the changed circumstances since the day of his initial arrest in September 2017.

The Bench of Justices AM Khanwilkar and Ajay Rastogi was dealing with an appeal filed against a Madras High Court judgment by the State. The High Court in 2018 had set aside a Special Court order extending the detention of the accused-respondent under Section 43D of the Unlawful Activities Prevention Act (UAPA), 1967.

The accused-respondent was one of several others who had been arrested for having attempted to join the ISIS. The initial statutory 90-day period for permissible detention under the UAPA in the respondent’s case was due to expire on December 16, 2017.

The National Investigating Agency (NIA) had, therefore, requested for extension of remand, through the Special Public Prosecutor (SPP), on December 10, 2017. After examining the SPP’s report and hearing the accused-respondent, the Special Court had allowed the remand extension on December 12, 2017. This also led the dismissal of a bail application filed by the accused-respondent under Section 167 (2) of the Code of Criminal Procedure (CrPC) as infructuous in January 2018.

An appeal filed by the accused against these orders before the Madras High Court, however, met with success. The High Court opined that the SPP’s report seeking an extension of detention did not meet the requirements of law under Section 43D of the UAPA. Therefore, it enlarged the accused-respondent on bail in September 2018.

The State’s appeal against this High Court verdict led to an odd consequence where the High Court’s order was effectively confirmed, although the Supreme Court disagreed with its reasoning.

The Supreme Court Bench disagreed with the High Court on the aspect of whether the requirements of Section 43D, UAPA had been met for the extension of remand when the NIA made its request. Section 43D basically calls for the satisfaction of the following ingredients to allow a remand extension i.e.

  • It has not been possible to complete the investigation within the statutory period of 90 days.
  • A report to be submitted by the Public Prosecutor.
  • Said report indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of 90 days.
  • The satisfaction of the Court in respect of the report of the Public Prosecutor.

On an appraisal of the Prosecution’s report in this case, the Supreme Court opined that there were satisfactory reasons for extending the remand of the accused at the time of making the request. However, the Court then proceeded to take note of the changed circumstances in the matter, observing that,

We cannot be oblivious of the changed circumstances which has been brought to our notice regarding the present FIR dated 26th January, 2017.”

For one, the Court was informed that the other persons accused in the case (ie. those similarly situated as the respondent-accused), had been enlarged on bail. The chargesheet in the case had been filed and the matter, was at the stage of framing of charge, the Court noted. The accused-respondent also argued that he has not breached any of the Bail conditions set by the Madras High Court.

In view of the same, the Supreme Court proceeded to dispose of the appeals in favour of the respondent-accused, stating,

To conclude, we are not in agreement with the conclusions arrived at by the High Court in the impugned judgment dated 12th September, 2018 but taking note of the later developments and the supporting facts brought to our notice, we are not inclined to interfere with the final relief to the extent of granting default bail to the accused-respondent in the circumstances of the case on hand.”

State-v-Shakul-Hameed-SC-May-2019.pdf
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