India's Anti-Terror Legal Framework: A Comparative Analysis of UAPA and BNS

 In the evolving landscape of India's counter-terrorism legal architecture, two significant legislations stand at the forefront: the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the recently enacted Bharatiya Nyaya Sanhita, 2023 (BNS). This article provides a comprehensive analysis of these laws, examining their provisions, procedural frameworks, and the complex interplay between them in addressing terrorism and national security concerns.

Historical Evolution of UAPA

The Unlawful Activities (Prevention) Act was first enacted in 1967 to address anti-national activities and secessionist movements in India, particularly following the peasants' uprising in Naxalbari. Originally designed to prevent unlawful activities threatening India's sovereignty and integrity, the Act has undergone significant transformations through amendments in 2004, 2008, 2013, and 2019.

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Whether court should release the accused prosecuted under the Unlawful Activities (Prevention) Act for paying extortion money to a terrorist organization on bail?

  While considering the grant of bail under Section 43

(5) D, it is the bounden duty of the Court to apply its

mind to examine the entire material on record for the

purpose of satisfying itself, whether a prima facie case is

made out against the accused or not. We have gone

through the material on record and are satisfied that the

Appellant is entitled for bail and that the Special Court

and High Court erred in not granting bail to the Appellant

for the following reasons:

(A) A close scrutiny of the material placed before the

Court would clearly shows that the main

accusation against the Appellant is that he paid

levy / extortion amount to the terrorist

organization. Payment of extortion money does

not amount to terror funding. It is clear from the

supplementary charge-sheet and the other

material on record that other accused who are

members of the terrorist organization have been

systematically collecting extortion amounts from

businessmen in Amrapali and Magadh areas. The

Appellant is carrying on transport business in the

area of operation of the organization. It is

alleged in the second supplementary chargesheet

that the Appellant paid money to the

members of the TPC for smooth running of his

business. Prima facie, it cannot be said that the

Appellant conspired with the other members of

the TPC and raised funds to promote the

organization.

(B) Another factor taken into account by the Special

Court and the High Court relates to the allegation

of the Appellant meeting the members of the

terror organization. It has been held by the High

Court that the Appellant has been in constant

touch with the other accused. The Appellant has

revealed in his statement recorded under Section

164 Cr.PC that he was summoned to meet A-14

and the other members of the organization in

connection with the payments made by him.

Prima facie, we are not satisfied that a case of

conspiracy has been made out at this stage only

on the ground that the Appellant met the

members of the organization.

(C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh

and Ninety-Five Thousand only) was seized from

the house of the Appellant which was accounted

for by the Appellant who stated that the amount

was withdrawn from the bank to pay salaries to

his employees and other expenses. We do not

agree with the prosecution that the amount is

terror fund. At this stage, it cannot be said that

the amount seized from the Appellant is

proceeds from terrorist activity. There is no

allegation that Appellant was receiving any

money. On the other hand, the Appellant is

accused of providing money to the members of

TPC. {Para 11}

12. After a detailed examination of the contentions of

the parties and scrutiny of the material on record, we are

not satisfied that a prima facie case has been made out

against the Appellant relating to the offences alleged

against him. We make it clear that these findings are

restricted only for the purpose of grant of bail to the

Appellant and the trial court shall not be influenced by

these observations during trial.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos . 314-315 of 2021

Sudesh Kedia Vs  Union of India 

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What are the parameters for the grant of bail Under the Unlawful Activities (Prevention) Act?

 In National Investigation Agency v. Zahoor

Ahmad Shah Watali (supra), this Court considered the

parameters for exercise of the power under Section 43

(5) D, held as follows:

“23. By virtue of the proviso to sub-section (5), it

is the duty of the Court to be satisfied that there

are reasonable grounds for believing that the

accusation against the accused is prima facie

true or otherwise. Our attention was invited to

the decisions of this Court, which has had an

occasion to deal with similar special provisions in

TADA and MCOCA. The principle underlying those

decisions may have some bearing while

considering the prayer for bail in relation to the

offences under the 1967 Act as well. Notably,

under the special enactments such as

TADA, MCOCA and the Narcotic Drugs and

Psychotropic Substances Act, 1985, the Court is

required to record its opinion that there are

reasonable grounds for believing that the

accused is “not guilty” of the alleged offence.

There is a degree of difference between the

satisfaction to be recorded by the Court that

there are reasonable grounds for believing that

the accused is “not guilty” of such offence and

the satisfaction to be recorded for the purposes

of the 1967 Act that there are reasonable

grounds for believing that the accusation against

such person is “prima facie” true. By its very

nature, the expression “prima facie true” would

mean that the materials/evidence collated by the

investigating agency in reference to the

accusation against the accused concerned in the

first information report, must prevail until

contradicted and overcome or disproved by other

evidence, and on the face of it, shows the

complicity of such accused in the commission of

the stated offence. It must be good and sufficient

on its face to establish a given fact or the chain

of facts constituting the stated offence, unless

rebutted or contradicted. In one sense, the

degree of satisfaction is lighter when the Court

has to opine that the accusation is “prima

facie true”, as compared to the opinion of the

accused “not guilty” of such offence as required

under the other special enactments. In any case,

the degree of satisfaction to be recorded by the

Court for opining that there are reasonable

grounds for believing that the accusation against

the accused is prima facie true, is lighter than

the degree of satisfaction to be recorded for

considering a discharge application or framing of

charges in relation to offences under the 1967

Act….”

11. While considering the grant of bail under Section 43

(5) D, it is the bounden duty of the Court to apply its

mind to examine the entire material on record for the

purpose of satisfying itself, whether a prima facie case is

made out against the accused or not.

 Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos . 314-315 of 2021

Sudesh Kedia Vs  Union of India 

Author: L. NAGESWARA RAO, J.

Dated: April 09, 2021.

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Whether all UAPA Offences Investigated By NIA Or State Police Are Exclusively Triable By 'Special Courts?

 It will be seen that the aforesaid notification has been issued under

Section 22(1) of the NIA Act. What is important to note is that under

Section 22(2)(ii), reference to the Central Agency in Section 13(1) is to

be construed as a reference to the investigation agency of the State Government – namely, the State police in this case. Thereafter, what is

important to note is that notwithstanding anything contained in the

Code, the jurisdiction conferred on a Special Court shall, until a

Special Court is designated by the State Government, be exercised

only by the Court of Sessions of the Division in which such offence has

been committed vide sub-section (3) of Section 22; and by sub-section

(4) of Section 22, on and from the date on which the Special Court is

designated by the State Government, the trial of any offence

investigated by the State Government under the provisions of the NIA Act shall stand transferred to that Court on and from the date on which it is designated.

19.Section 13(1) of the NIA Act, which again begins with a non-obstante

clause which is notwithstanding anything contained in the Code, read

with Section 22(2)(ii), states that every scheduled offence that is

investigated by the investigation agency of the State Government is to

be tried exclusively by the Special Court within whose local jurisdiction

it was committed. 

“The Court”,  when read with the extended definition contained in Section 2(1)(d) of the UAPA, now speaks of the Special Court constituted under Section 22 of the NIA Act. What becomes clear, therefore, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences. This becomes even clearer on a reading of Section 16 of the NIA Act which

makes it clear that the Special Court may take cognizance of an

offence without the accused being committed to it for trial upon receipt

of a complaint of facts or upon a police report of such facts. What is

equally clear from a reading of Section 16(2) of the NIA Act is that

even though offences may be punishable with imprisonment for a term not exceeding 3 years, the Special Court alone is to try such offence –

albeit in a summary way if it thinks it fit to do so. On a conspectus of

the abovementioned provisions, Section 13 read with Section 22(2)(ii)

of the NIA Act, in particular, the argument of the learned counsel

appearing on behalf of the State of Punjab based on Section 10 of the

said Act has no legs to stand on since the Special Court has exclusive

jurisdiction over every Scheduled Offence investigated by the

investigating agency of the State.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 667 OF 2020

BIKRAMJIT SINGH  Vs THE STATE OF PUNJAB 

Author: R.F. Nariman, J.

Dated: October 12, 2020.

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Whether Session Judge can remand accused to custody prosecuted under UAPA if the central government has not entrusted the investigation to the National Investigation Agency?

As we have noticed hereinabove, the NIA Act primarily is an Act to constitute the National Investigation Agency, and to provide for trial of cases entrusted to and investigated by the NIA in respect of scheduled offences, by a Special Court. In the present case, it is not even the petitioner's submission that the Central Government has entrusted the investigation of the case registered against the detenue Gulfisha Fatima under UAPA to the NIA. The UAPA does not state that all cases under the said act necessarily have to be investigated by the NIA.

35. It is clear that apart from NIA, the other police establishments are equally competent to investigate cases under the UAPA. This position is also clear from Section 6(7) of NIA Act, which clears doubts, if any, by declaring that till the NIA takes over the investigation of the case, it shall be the duty of the officer-in-charge of the police station where the case is registered, to continue to investigate.

36. The UAPA does not state that offences under the said Act can be tried only by a Special Court. Section 45 only lays down the restriction of grant of prior sanction by the Central Government, or the State Government, as the case may be. It does not state that only a Special Court constituted under the NIA Act would have jurisdiction to try offences under the UAPA. Just because UAPA is one of the enlisted enactments in the Schedule to the NIA Act, it does not follow that every offence under the UAPA has necessarily to be investigated by the NIA, and that the trial of such case necessarily has to proceed before the Special Court.

38. There is no dispute about the fact that Shri Dharmender Rana, ASJ-02, is a court of Sessions. He had been entrusted by the District and Sessions Judge, New Delhi District, New Delhi with the task of hearing and disposing of fresh bail applications and pending bail applications, and also authorised to deal with the entire remand work pertaining to, inter alia, UAPA. The learned District and Sessions Judge acted completely within the scope of the authority vested in him under Section 10(3) of the Code, to assign work to the Additional District and Session Judges serving in the New Delhi District, and this position has been squarely settled by the decision in Rambeer Shokeen (supra), which has been affirmed by the Supreme Court.

IN THE HIGH COURT OF DELHI

W.P. (Crl.) 824/2020

Decided On: 22.06.2020

 Aqil Hussain Vs.  State of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Vipin Sanghi and Rajnish Bhatnagar, JJ.

Citation: MANU/DE/1276/2020

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