Jalaluddin Khan arrested under the Unlawful Activities (Prevention) Act (UAPA) was granted bail by the Supreme Court on 13th August. It claimed that the legal principle “bail is the rule, jail is an exception” applies even to offences under special statutes and it would be a breach of the fundamental rights to deny bail in deserving circumstances. Notably, Jalaluddin Khan was booked under the UAPA and other sections of the Indian Penal Code which has now been replaced by Bharatiya Nyaya Sanhita (BNS) after he rented out the top floor of his house to the outlawed Islamist outfit Popular Front of India (PFI).
A bench of Abhay S Oka and Augustine George Masih pronounced the order while pointing out the significance of evaluating bail requests in compliance with the law, even in cases involving grave accusations. “Allegations of the prosecution may be very serious, but it is the court’s duty to consider the case for bail in accordance with the law. Bail is the rule and jail is the exception that applies even to special statutes. If courts start denying bail in deserving cases, it will be a violation of rights guaranteed under Article 21,” the court conveyed as it didn’t regard PFI as a terrorist organisation.
The National Investigation Agency (NIA) earlier stated that the investigation revealed the formation of a criminal conspiracy to carry out violent and terror acts which would foster fear and jeopardize the country’s integrity and unity. The accused set up rented accommodation in Ahmad Palace, Phulwarisharif (Patna), as part of this scheme and the spaces were used for criminal conspiracy meetings and training people on how to commit violent crimes.
The accused reportedly intended to cause disruptions during Prime Minister Narendra Modi’s anticipated visit in 2022, according to information provided to the Bihar Police. On 11th July 2022, the Phulwarisharif Police raided the residence of Jalaluddin Khan who is a retired police constable in response to a tip-off and arrested him the next day.
Shocking details in the chargesheet
Meanwhile, the statements of the protected witnesses were brought to the bench’s attention by Aishwarya Bhati, Additional Solicitor General of India. She also referred to the CCTV footage that the Investigating Agency had taken from the Ahmad Palace building, which indicated that Khan and another accused person were seen removing certain items from the building’s first floor on 6th and 7th June 2022. Khan tampered with the evidence since the objects were found missing during the police raid carried out on 11th July 2022. She based her submission on the charge sheet, which stated that a protected witness revealed that Khan and many other accused connected to PFI attended a meeting and training session on 29th May 2022, on the first floor of the Ahmad Palace building to discuss the group’s growth, basic as well as advanced training of PFI members, Muslim empowerment and PFI’s future plans.
She quoted a statement from a protected witness that trained PFI members were given orders to attack and murder was given to the trained PFI members to attack and murder the designated targets who were engaged in making comments against Islam following former Bharatiya Janata Party (BJP) spokesperson Nupur Sharma’s remarks on Prophet Muhammad. A total of Rs. 25,000 was moved from an absconding accused to the account of Amir Jalal Khan, his elder son. She mentioned that Khan had intentionally permitted the first floor to be occupied by the PFI for its operations and the rent agreement was fabricated to deceive the police.
She argued that the charge sheet and the supporting documentation contained sufficient evidence to establish a strong prima facie case regarding his involvement in the offences covered by Sections 13, 18, 18A, and 20 of the UAPA. She drew attention to the fact that the accused, under whose name the first-floor lease was displayed, had actively participated in the Student Islamic Movement of India (SIMI), another outlawed terrorist organization.
However, the court stated that the building was in the name of Khan’s wife. Information concerning a plot by certain suspected individuals who had gathered in the Phulwarisharif area to obstruct PM Modi’s planned visit to Bihar was reported to the Bihar Police after which a raid was conducted based on this secret information. The authorities retrieved five sets of documents titled “India 2047 Towards Rule of Islamic India, Internal Document: Not for circulation,” pamphlets titled “Popular front of India 20 February 2021” (of which twenty-five were in Hindi and thirty in Urdu), 49 cloth flags, two magazines titled “Mulk ke liye Popular front ke saath (With PFI, for the sake of India)” and one copy of a rent agreement on non-judicial stamp. Seized items also included the recovered articles and a Samsung phone that had the accused Mohammed Jalaluddin’s SIM card (A-2). They were associated with anti-Indian operations.
A protected witness confirmed that a meeting cum training was organized in Ahmad Palace, Phulwarisharif on 29th May 2022 to discuss the aforementioned plans of PFI’s expansion and its targetted killings. A gathering of about forty to forty-five people, including accused Mahboob Alam Nadvi, accused Sanaullah, accused Riyaz Mourif, accused Mehboob-Ur-Rehman, accused Ehsan Parvez, accused Ansarul Huque, accused Riyaz Ahmed, accused Perwez Alam, accused Tausif Alam, accused Athar Parvej, accused Jalaluddin Khan, and others connected to PFI, was presided over by accused Riyaz Firangipet of Karnataka.
The CCTV footage verified that on 6th and 7th July 2022, at the Ahmad Palace in Phulwarisharif, which was attended by the accused (from multiple states) named in the First Information Report (FIR) including Athar Parvej. The CCTV footage additionally corroborated that on 11th July 2022, at approximately 7 pm, the Police of PS Phulwarisharif conducted a raid on the first floor of Ahmad Palace with Athar Parvej and Jalaluddin Khan present there. Additionally, it also proved that before the search, Khan tampered with the evidence by moving objects from the first floor of Ahmad Palace. After investigation, it was also determined that Rs 25,000 had been deposited into the account of Khan’s son
The contents of the document titled “India 2047 Towards Rule of Islamic India” are thoroughly explained in the charge sheet which highlighted that after the aforementioned texts were examined closely, it became clear that their purpose was to impose Islamic law in India. However, the court countered that the charge sheet does not refer to the type of items that Khan previously moved from the first-floor premises and declared that he would have moved the items listed in the charge sheet if he had wanted to change the incriminating materials that PFI had distributed while mentioning that the floor was home to commercial premises. The bench added, “If the appellant intended to allow the conduct of the objectionable activities of PFI by giving first-floor premises on rent, he would not have installed CCTV cameras.”
Court demands explanation from NIA
The apex court also considered the testimony of the prosecution witness, asserting that the witness failed to explicitly indicate that Khan attended the meeting on 29th May 2022. The names of several attendees have been listed by him which does not contain Khan’s name who was identified as the building’s owner after the meeting. The court declared that the protected witness had in fact testified that the discussion focused on elevating the position of Muslims, providing them with both basic and advanced training, and elevating their standing in terms of administration, politics, and education along with Muslim empowerment.
“Going by the witness’s version, we find that there was no discussion about the activities of PFI in the meeting held on 29th May 2022,” the bench expressed. The court contended that the charge sheet contained a significant distortion of the genuine statement of the witness and multiple statements that the protected witness did not utter have been included. This court then demanded an explanation from the National Investigation Agency (NIA) and announced that the investigative apparatus must be impartial.
Subsequently, many earlier rulings were examined and debated to determine the conditions under which bail may or may not be granted under such strict provisions, particularly the UAPA. However, the Supreme Court eventually ruled in favour of Khan. It stated that nothing in the charge sheet indicated that he indulged in or completed any illegal activity as defined under the UAPA and proclaimed that there isn’t any concrete evidence to suggest he encouraged, assisted, or facilitated the performance of any unlawful actions. “Assuming that the co-accused were indulging in terrorist acts or were making any act preparatory to the commission of terrorist acts, there is absolutely no material on record to show that there was any conspiracy to commit any terrorist act to which the appellant was a party. There is no material produced on record to show that the appellant advocated, abetted, advised, or incited the commission of terrorist acts or any preparatory activity,” the court observed.
The negotiations to rent out the first floor were handled by Khan’s son, according to the court which pointed out that if the charge sheet is accurate, then it is impossible to establish, even based on a preliminary inquiry, that Khan intentionally enabled the commission or planning of terrorist actions by renting out the first floor of the building. The charge sheet against him made no mention of any camps he established to provide terrorist training.
The court noted that the charge sheet made no mention of Khan’s membership in any terrorist organization. “As regards the second part of being a member of a terrorist organisation, as per Section 2(m), a terrorist organisation means an organisation listed in the first schedule or an organisation operating under the same name as the organisation was listed. The charge sheet does not mention the name of the terrorist organisation within the meaning of Section 2(m) of which the appellant was a member,” it stated while clarifying that PFI is not a terrorist group.
Supreme Court announces the verdict
The Supreme Court ruled that, in light of the development, it is not conceivable to conclude from a plain reading of the charge sheet that there are reasonable reasons to suspect that Khan committed crimes that are punishable by the UAPA. The court declared, “We have taken the charge sheet and the statement of witness Z as they are without conducting a mini-trial. Looking at what we have held earlier, it is impossible to record a prima facie finding that there were reasonable grounds for believing that the accusation against the appellant of commission of offences under the UAPA was prima facie true. No antecedents of the appellant have been brought on record.” The court then concluded, “The upshot of the above discussion is that there was no reason to reject the bail application filed by the appellant.”
The Supreme Court communicated that the evidence in the charge sheet had not been sufficiently taken into account by the special court and high court. “Perhaps the focus was more on the activities of PFI, and therefore, the appellant’s case could not be properly appreciated. When a case is made out for a grant of bail, the courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious.” It termed “Bail is the rule and jail is an exception” as “a settled law” and added, “Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the court cannot decline to grant bail.”
The court pronounced, “Hence, the impugned orders are set aside. The appeal is allowed. The appellant is directed to be enlarged on bail on the terms and conditions as may be fixed by the special court,” and further ordered that Khan should appear before the special judge no later than seven days after the judgement was produced and will receive bail from the special court, subject to suitable terms and conditions, until the trial’s conclusion. The respondent’s attorney must be heard by the special court before the terms and conditions are decided. The court also explained that the judgment’s provisional conclusions are solely intended to be taken into account when evaluating the bail request. “The reasons are confined to the case of the appellant. The same will have no bearing on the trial and cases of the co-accused,” it highlighted.
Jalaluddin Khan was booked under sections 121, 121A and 122 of the Indian Penal Code and sections 13, 18, 18A and 20 of the Unlawful Activities (Prevention) Act. A charge sheet was filed on 7th January of last year. He made an application for bail under the UAPA before the special court but was denied. As a result, he and the other accused petitioned the High Court for bail. However, his plea was again rejected by the impugned judgment while his co-accused obtained bail.
