Holding

The appellant is entitled to bail as the statutory test under Section 43‑D(5) of the UAPA is not satisfied and his continued detention violates the constitutional right to a speedy trial.

Summary

The appellant, alleged active member of the Popular Front of India (PFI), was arrested in July 2022 for allegedly planning disturbances during the Prime Minister's visit to Patna. He was charged under several sections of the IPC and the Unlawful Activities (Prevention) Act (UAPA), but the chargesheet had not been framed and the trial involved 40 accused and 354 witnesses, making a speedy trial unlikely. The Supreme Court examined whether the PFI was a terrorist organization under UAPA, found it was not listed in the first schedule, and noted that the protected witnesses' statements did not specifically implicate the appellant in UAPA offences. Applying the test under Section 43‑D(5) of UAPA and emphasizing the constitutional right to a speedy trial under Article 21, the Court held that continued detention would violate the appellant's liberty. Consequently, the Court set aside the High Court’s denial of bail and ordered the appellant to be released on bail with conditions to be fixed by the Special Court.

Issues considered

The applicability of Section 43-D(5) of the UAPA to the appellant's bail application
Whether the Popular Front of India qualifies as a terrorist organization under Section 2(m) of the UAPA
If the protected witnesses' statements establish a prima facie case under the UAPA
The impact of prolonged pre‑trial detention on the right to speedy trial under Article 21

Legislation cited

Constitution of Indias. Article 21
Indian Penal Code, 1860s. 120, s. 120-B, s. 121, s. 121A, s. 122, s. 153A, s. 153B, s. 34
Unlawful Activities (Prevention) Act, 1967s. 13, s. 17, s. 18, s. 18A, s. 18B, s. 20, s. 43-D(5)

Headnote

Issue for Consideration Appellant alleged to be an active member of the Popular Front of India (PFI) involved in planning to cause disturbance during the proposed visit of Prime Minister of India to Patna in 2022. Chargesheet filed against the appellant under Sections 121, 121A, 122, 153A & 18, 18A, 18B & 20, Unlawful Activities (Prevention) Act, 1967. Charges not framed yet. Appellant has undergone long incarceration, no likelihood of trial being completed in near future. High Court whether justified in denying bail. Headnotes† Unlawful Activities (Prevention) Act, 1967

Subjects

BailSection 43-D(5) of the UAPAPopular Front of IndiaDisturbancePrime Minister visitLong incarcerationTerrorist organisationArticle 21Co‑accusedDelay in trialRight to speedy trialPeriod of incarcerationIslamic ruleReligious disharmonyNupur SharmaCommunal sloganeeringStudent Islamic Movement of India (SIMI)

Judgment

[2024] 12 S.C.R. 1093 : 2024 INSC 995

Athar Parwez
v.
Union of India
(Criminal Appeal No. 5387 of 2024)
17 December 2024
[Abhay S. Oka and Augustine George Masih,* JJ.]

Issue for Consideration
Appellant alleged to be an active member of the Popular Front
of India (PFI) involved in planning to cause disturbance during
the proposed visit of Prime Minister of India to Patna in 2022.
Chargesheet filed against the appellant under Sections 121, 121A,
122, 153A & 153B of the IPC and Sections 13, 17, 18, 18A, 18B &
20, Unlawful Activities (Prevention) Act, 1967. Charges not framed
yet. Appellant has undergone long incarceration, no likelihood of
trial being completed in near future. High Court whether justified
in denying bail.

Headnotes†
Unlawful Activities (Prevention) Act, 1967 – s.43-D(5) –
Constitution of India – Article 21 – Denial of bail to the
appellant – Challenge to:
Held: Impugned judgment set aside – The PFI of which the appellant
was a member has not been declared a terrorist organisation within
the meaning of Section 2(m), UAPA, 1967 – It is not mentioned
as a terrorist organisation in the first schedule thereof – The
chargesheet and the statement of witness ‘Z’ when seen as it is, it
would not be possible to record prima facie finding that commission
of offence under the UAPA, 1967 would be attracted as there are
no reasonable grounds for believing that the accusations are prima
facie correct – Statement of the protected witnesses does not
mention anything specific that would be attributed to the appellant
which could prima facie attract charges under UAPA – Test relating
to Section 43-D(5) of the UAPA, 1967 satisfied – Further, the
appellant was arrested on 12.07.2022 and has undergone custody
for more than two years and four months– Chargesheet was filed
on 07.01.2023 but till date charges have not been framed – There

* Author
1094 [2024] 12 S.C.R.

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are 40 accused and 354 witnesses to be examined – Trial is not
likely to be completed soon – Appellant cannot be allowed to
languish in jail indefinitely and that too without a trial in violation
of Article 21 – Co-accused of the Appellant has been granted bail
on similar grounds – Appellant granted bail on the conditions to
be fixed by the Special Court. [Paras 28, 31-34]

Criminal Law – Bail – Bar/strict statutory provisions –
Constitution of India – Article 21 – Right of speedy trial – Grant
of bail in cases of long incarceration, delay in conclusion of
the trial – Discussed:
Held: Keeping the statutory provisions in mind but with the passage
of time the effect of that statutory provision would in fact have to
be diluted giving way to the mandate of Part III of the Constitution
where the accused as of now is not a convict and is facing the
charges – Constitutional right of speedy trial in such circumstances
will have precedence over the bar/strict provisions of the statute
and cannot be made the sole reason for denial of bail – Therefore,
the period of incarceration of an accused could also be a relevant
factor to be considered by the constitutional courts not to be merely
governed by the statutory provisions. [Para 20]

Case Law Cited
Union of India v. K.A. Najeeb [2021] 1 SCR 443 : (2021) 3 SCC
713; Thwaha Fasal v. Union of India [2021] 8 SCR 797 : (2022)
14 SCC 766; Javed Gulam Nabi Shaikh v. State of Maharashtra
and Anr. [2024] 7 SCR 992 : 2024 SCC OnLine SC 1693 – held
applicable.
National Investigation Agency v. Zahoor Ahmad Shah Watali [2019]
5 SCR 1060 : (2019) 5 SCC 1; Jalaluddin Khan v. Union of India
[2024] 8 SCR 633 : 2024 SCC OnLine SC 1945 – referred to.

List of Acts
Unlawful Activities (Prevention) Act, 1967; Penal Code, 1860;
Constitution of India.

List of Keywords
Bail; Section 43-D(5) of the Unlawful Activities (Prevention) Act,
1967; Popular Front of India (PFI); Disturbance; Proposed visit of
[2024] 12 S.C.R. 1095

Athar Parwez v. Union of India

Prime Minister of India; Charges under UAPA; Long incarceration;
Terrorist organisation; Languish in jail indefinitely; Article 21 of
the Constitution of India; Co-accused; Delay in conclusion of the
trial; Right of speedy trial; Period of incarceration; Islamic rule;
Recoveries; Religious disharmony; Religious hatred; Terrorist
organisation; Islamic rule; Nupur Sharma; Prophet Mohammad;
Communal sloganeering; Objectionable activities; Student Islamic
Movement of India (SIMI).

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 5387
of 2024
From the Judgment and Order dated 28.11.2023 of the High Court
of Judicature at Patna in CRADB No. 516 of 2023

Appearances for Parties
Dr. Aditya Sondhi, Sr. Adv., Divyesh Pratap Singh, Adil Sharfuddin,
Shashank Singh, Akash Alex, Ms. Aishwarya Sm, Ms. Meghana
Tm, Anubhav Kumar, Advs. for the Appellant.
Ms. Aishwarya Bhati, A.S.G., Ms. Poornima Singh, Ms. Shagun
Thakur, Vasu Vats, Ms. Shivika Mehra, Ms. Bani Dikshit, Ms. Seema
Bengani, Parantap Singh, Ms. Rajeshwari Shankar, Arvind Kumar
Sharma, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Augustine George Masih, J.

1. Leave granted.
2. The Appellant herein has approached this Court seeking bail during
the pendency of trial after dismissal of his bail application by the High
Court of Patna vide impugned Order dated 28.11.2023 in Criminal
Appeal (DB) No.516 of 2023. The Appellant is booked as Accused
No.01 in FIR No. 827 of 2022, which was registered at Police Station
Phulwari Sharif, Patna under Sections 120, 120-B, 121, 121A, 153A,
153B, & 34 of the Indian Penal Code, 1860 (hereinafter referred to
as the “IPC”).
1096 [2024] 12 S.C.R.

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3. The Appellant along with a co-accused Jalaluddin Khan alias Md.
Jalaluddin was arrested on 12.07.2022. Allegations against the
Appellant are that he is an active member of the Popular Front of
India (hereinafter referred to as the “PFI”), and he along with his
associates were planning to cause disturbance during the proposed
visit of Prime Minister of India to Patna, this led to the raid being
conducted on 11.07.2022 at first floor Ahmad Palace, Phulwari Sharif,
Patna which was taken on rent by the Appellant from co-accused
Md. Jalaluddin.
4. During the raid certain recoveries were carried out, prominent
amongst them was a document titled “India 2047 towards rule of
Islam in India, internal Document not for circulation”. Assertions
have been made in the complaint on the basis of the documents
seized that the Appellant along with the other members of the PFI
aimed at disrupting the sovereignty of India and cause disaffection
against the country.
5. Keeping in view the seriousness of the allegations and the offences
involved, Government of India vide Official Order dated 22.07.2022
directed the National Investigating Agency (hereinafter referred to
as the “NIA”) to take up the investigation. Accordingly, the NIA re-
registered a case as R.C- 31/2022/NIA/DLI dated 22.07.2022 under
Sections 120, 120B, 121, 121A, 153A, and Section 13 of the of the
Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as
the “UAPA 1967”) and took up the investigation. After investigation,
chargesheet against the Appellant was filed on 07.01.2023 under
Sections 121, 121A, 122, 153A & 153B of the IPC and Sections 13,
17, 18, 18A, 18B & 20 of UAPA, 1967. However, charges till date
have not been framed.
6. The learned Senior Counsel for the Appellant has asserted that
the seizure of documents as has been alleged from the rented
accommodation of the Appellant is highly suspicious and doubtful
rather it is concocted and manufactured. As per the seizure memo/list,
the recovery has been made from the second floor of Ahmad Palace
which according to the prosecution itself was never in possession
of the Appellant rather it is the first floor which was on rent with the
Appellant. Even the rent deed on which reliance has been placed
mentions explicitly about the first floor.
[2024] 12 S.C.R. 1097

Athar Parwez v. Union of India

7. It is contended that going by the allegations against the Appellant,
no offence under the UAPA, 1967 or even the predicate offence is
made out. He submits that primary allegations are with regard to the
alleged recovery seven-page document titled “India 2047 towards
rule of Islam in India, internal document, not for circulation” which
contained various recitals relatable to an Islamic rule which is to be
established in India. It is contended that there are no independent
witnesses to the alleged recovery seizure memo/list. As also the said
document does not in any manner talk about any terrorist activities
or overt act to be carried out which would create disharmony or
religious hatred.
8. The learned Senior Counsel for the Appellant further submits that
PFI has been banned vide a Gazette Notification dated 28.09.2022
issued by the Government of India for a period of five years. On the
date when the raid was conducted i.e. 11.07.2022 and on the date
of the Appellant’s arrest i.e. 12.07.2022, PFI was legally constituted
organisation. Till date, this organisation has not been declared a
terrorist organisation. He asserted that the chargesheet as has been
filed by the prosecution would not indicate any active role played by
the Appellant except that he had participated in some demonstrations
and protests against the policies of the State or rather in the backdrop
of remarks made by one Nupur Sharma against Prophet Mohammad.
9. Another allegation is with regard to having organized a meeting on
6th and 7th of July 2022 in the rented first floor premises of Ahmad
Palace. The statements of the witnesses also according to the
allegations do not indicate that the Appellant had actively participated
in any discussions or had instigated any of the persons present there
to commit any of the offence which would fall within the purview of
the offences mentioned in the chargesheet.
10. The learned Senior Counsel has further asserted that the co-accused
of the Appellant (Jalaluddin Khan) whose application was also
considered for grant of bail by the High Court along with that of the
Appellant, had been granted bail by this Court in Criminal Appeal
No. 3173 of 2024.1 His role is similar to that of the Appellant except
that he was said to be the person who was the owner of the building
and had rented the accommodation to the Appellant. As regards his

1 2024 SCC OnLine SC 1945/ Criminal Appeal No. 3173 of 2024 decided on 13.08.2024.
1098 [2024] 12 S.C.R.

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participation in the meeting on 6th and 7th July 2022 is concerned,
he is in a same position with the co-accused already granted bail by
this Court. Mere participation in the meeting would not be enough.
The other co-accused against whom similar allegations of being
a member of the PFI and participating in protests where alleged
communal slogans were raised have been enlarged on bail by the
High Court. Even the testimony of the protected witnesses does not
implicate the Appellant in the alleged crime as per the chargesheet.
11. Learned Senior Counsel has also drawn attention of this Court to the
statement made by prosecution witness Saiyed Abu Monawwar to
submit that as per this witness, there are commercial establishments
such as shops and pathology labs on the ground floor of the building
where the raid was conducted. CCTV cameras would not have been
permitted to be installed in the said premises or on the first floor also
had some objectionable activities being carried out by the PFI. This
also reflects that it does not stand to logic. It is not therefore logical
and does not make sense where such objectionable activities were
to be carried out as has been alleged the same would be in such
an area as has been described by the prosecution.
12. Another submission which has been put forth is that there are 354
witnesses cited by the prosecution and the Appellant is in custody
since 12.07.2022 for more than two years and four months with the
trial not likely to conclude in the near future. The Appellant deserves
to be released on bail as this would amount to violation of Article 21
of the Constitution of India.
13. On the other hand, the learned Additional Solicitor General for the
Respondent has asserted that during the raid conducted by the Bihar
Police, not only the incriminating material/documents were recovered
from the premises in question, but other electronic items have also
been recovered which clearly establishes that the Appellant was
an active member of the PFI and had not only participated in the
protests but has actively organized the same. She contends that
training and meeting was conducted in the rented premises of the
Appellant in furtherance and establishment of the Islamic rule in
India. In these meetings, the participants who were from different
States joined and directions were given in the said meeting to kill
and attack those who make derogatory statements about Prophet
Mohammad and Islam.
[2024] 12 S.C.R. 1099

Athar Parwez v. Union of India

14. It is further submitted that the Appellant had been working to create
a secret group of ex-Student Islamic Movement of India (hereinafter
referred to as the “SIMI”) members, which is the banned organisation,
in order to take revenge against the persons who made or make
derogatory statements against Islam. The Appellant and other
co-accused had participated in protest and videos were recovered
where communal sloganeering was recorded and circulated which
not only was intended to create disturbance but religious disharmony
and discord within the society. The CDR records established that the
Appellant was in touch with other co-accused and had conspired to
expand the unlawful ideology of the PFI. About the participation of the
Appellant and the other co-accused named in the First Information
Report, she states that CCTV footage of 6th and 7th July installed at
the Ahmad Palace depicts the same which establishes the involvement
of the Appellant in conspiracy for carrying out unlawful activities with
an intention to disturb the security, integrity and sovereignty of the
country and promote feeling of enmity and hatred between different
groups. The Courts below and especially the Special Judge, NIA
Patna has taken cognizance of the chargesheet on 28.04.2023.
15. Learned Additional Solicitor General, however could not dispute
the stage of the trial as no charges have been framed. Emphasis
has been laid by the Learned Additional Solicitor General upon
the statements of the protected witnesses, with special emphasis
upon that of Z, Y & X. Reliance has also been placed upon the
statement of witness Murtuj Ali. Reference has also been made to
the chargesheet paragraph 15.2 with regard to the protest march and
sloganeering on 09.06.2022 in the area of Police Station, Pirbahor,
Patna. Paragraph 15.5 relating to electronic evidence where the hard
disk/DVR of the CCTV installed in Ahmad Palace were recovered
showing the presence of the Appellant in meeting held on 6th and
7th of July 2022. Paragraph 17.2 again refers to the details with
regard to the training conducted in the rented premises as also the
Appellant’s connection with the SIMI. Paragraphs 17.3 and 17.4
are with regard to the document titled ‘India 2047 towards rule of
Islam in India, internal document, not for circulation’, the contents
thereof have been mentioned therein. Paragraph 17.13 highlights
the call data records of the mobile numbers used by the accused
persons revealing their location and connection with each other in
the meeting dated 6th and 7th of July 2022. Paragraphs 17.15 and
1100 [2024] 12 S.C.R.

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17.16 - statement of protected witness ‘Z’. Paragraph 17.33 relates
to the collection of funds for Zakat and donations by the Appellant
and others on directions of the senior members of the PFI. Paragraph
17.34 relates to the statement of the protected witness ‘Y’ with
reference to these allegations in the chargesheet.
16. The learned Additional Solicitor General has thus asserted that there
are serious allegations against the Appellant and therefore the Orders
as has been passed by the Courts below are fully justified and the
prayer made in the present Appeal deserves to be rejected.
17. We have considered the submissions made by the Counsel for
the parties and with their able assistance have gone through the
chargesheet. Before we proceed in the matter, the principles which
have to be kept in mind while considering the prayer for grant of
bail under Section 43-D (5) of UAPA, 1967 have to be looked into.
18. This Court had an occasion to deal with the case of an accused
charged under Chapters IV and VI of the UAPA, 1967, who sought bail
during the pendency of the trial in the case of National Investigation
Agency v. Zahoor Ahmad Shah Watali.2 In that case, this Court
had gone to the extent of stating that the statutory bar on grant
of bail could not be an impediment if the court on appreciation of
totality of evidence is satisfied that the accusations are prima facie
not true. The court is required to consider and examine not only
the FIR but the case diary and chargesheet and to examine them
on broad probabilities regarding involvement of the accused in the
crime to determine whether the accusations are prima facie true
as compared to holding the accused not guilty, which would entitle
the provisions of Section 43-D(5) of UAPA, 1967, being not an
impediment in grant of bail.
The Court further concluded that if on perusal of the case diary and
chargesheet, an opinion is formed that there are no reasonable
grounds for believing that the accusations against such person are
prima facie true, the accused can be released on bail. It may be
added here that while forming an opinion as to whether there are
reasonable grounds for believing that the accusation against the
accused is prima facie true or otherwise the said documents have

2 [2019] 5 SCR 1060 : (2019) 5 SCC 1
[2024] 12 S.C.R. 1101

Athar Parwez v. Union of India

to be accepted as it is. The Court is merely expected to record a
finding on the basis of broad probabilities regarding the involvement
of the accused in the commission of the stated offence or otherwise.
19. Long incarceration and unlikely likelihood of trial being completed
in near future has also been taken as a ground for exercising its
constitutional role by the Constitutional Courts to grant bail on violation
of Article 21 of the Constitution of India which guarantees trial to
be concluded within a reasonable time. Gross delay in conclusion
of the trial would justify such invocation leading to a conclusion of
violation of Part III the Constitution of India, which may be taken as
a ground to release an undertrial on bail. A reference in this regard
may be made to the judgment of this Court in Union of India v. K.A.
Najeeb.3 It requires mention that in that case this Court considered
the factum that there were 276 witnesses left to be examined which
would lead to a prolong trial resulting in no possibility of the trial coming
to an end at an early date resulting in suffering of incarceration for
a significant period of time by an accused, making it an obligation
on the Court on such consideration to enlarge such an accused on
bail. It may be mentioned here that the Court was cautious enough to
mention that the restrictions under the statute as in this case, Section
43-D (5) of UAPA, 1967 as well as the powers exercisable under
the Constitutional jurisdiction by the Court need to be harmonized.
20. At the initial stage, the legislative policy needs to be appreciated
and followed by the Courts. Keeping the statutory provisions in mind
but with the passage of time the effect of that statutory provision
would in fact have to be diluted giving way to the mandate of Part
III of the Constitution where the accused as of now is not a convict
and is facing the charges. Constitutional right of speedy trial in such
circumstances will have precedence over the bar/strict provisions of
the statute and cannot be made the sole reason for denial of bail.
Therefore, the period of incarceration of an accused could also be
a relevant factor to be considered by the constitutional courts not
to be merely governed by the statutory provisions.
21. Reference can also be made to the judgments of this Court in Thwaha
Fasal v. Union of India4 as also Javed Gulam Nabi Shaikh v.

3 [2021] 1 SCR 443 : (2021) 3 SCC 713
4 [2021] 8 SCR 797 : (2022) 14 SCC 766
1102 [2024] 12 S.C.R.

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State of Maharashtra and Anr.5 where again, the Court was dealing
with the provisions of UAPA, 1967 and had reiterated the abovesaid
principles. Giving precedence to the protection of Fundamental Rights
and emphasising upon their primacy over the statutory provisions in
case of delayed trial. In the above judgments, this Court had even
gone to the extent of asserting that the seriousness of the crime for
which the accused is facing the trial would not be material as an
accused is presumed to be innocent until proven guilty.
22. With these basic principles in mind, we now proceed to consider the
position with regard to the present Appeal. The allegations against
the Appellant as has been stated above primarily are that he is an
active member of the PFI, which according to the prosecution is an
organisation committed to bringing about Islamic rule in India. For
the said purpose, disharmony and internal conflicts are sought to
be brought about within the society so that there is discontentment
and the peace and calm within the society gets disturbed. Resort to
violence and violent means has also been alleged to be preached and
practiced by the said organisation in which the Appellant had been
taking an active role. He is the person who participated in the protest
held on 09.06.2022 against the remarks made by Nupur Sharma
against Prophet Mohammad and Islam. In the said protest, not only
was he a participant but an organizer and had been encouraging
the protesters to use provocative slogans. Apart from this, there are
allegations that he had taken first floor of Ahmad Palace on rent
where activities of PFI were being carried out. Specific reference
has been made to the meeting/training program of the PFI held on
29th May 2022 and 6th and 7th July 2022.
23. In these meetings, not only was there participation on the part of
the Appellant but 30-40 other members of the PFI. The allegation
against the Appellant is that he had organized the said meetings,
used his own premises and had also stored and kept documents
and material relatable to PFI which were objectionable. In the said
meetings, discussions to fulfil the agenda of India 2047 rule of Islam
in India was planned and steps to be taken for giving it effect were
being worked upon. The members present were called upon to
target and neutralize persons who make remarks against Prophet
Mohammad and Islam.

5 [2024] 7 SCR 992 : 2024 SCC OnLine SC 1693
[2024] 12 S.C.R. 1103

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24. Reliance has been placed with regard to the statements of the
protected witnesses especially X, Y and Z to substantiate the said
allegations as also the recovered documents from the premises. The
factual aspect with regard to the number of witnesses, the period of
incarceration and that there are 40 accused in the case has not been
disputed. Reference at this stage is to be made to the judgment of
this Court in Jalaluddin Khan v. Union of India6 which related to the
co-accused of the Appellant whose appeal for grant of bail under the
UAPA, 1967 along with that of the present Appellant was rejected by
a common impugned judgment of the High Court. The only distinction
between the case of the present Appellant and Md. Jalaluddin was
that he was the owner of the premises whereas the Appellant is a
tenant thereof. Participation of the Appellant, as well as co-accused
Md. Jalaluddin along with the other accused in the meeting of 6th
and 7th July 2022 had not been disputed. The evidence against the
Appellant as also the co-accused Md. Jalaluddin is almost the same.
25. The most prominent evidence is the testimony of the protected witness
‘Z’ who was alleged to be inducted into the PFI for providing physical
training to its members. In his statement, there is no mention of the
Appellant taking part in or leading any of those meetings/trainings
where physical training was imparted teaching attack and defensive
techniques using sticks, knives or other weapons. As regards the
meeting held on 29th May 2022 at Ahmad Palace what has been
stated by him is merely that the Appellant along with 40-45 persons
participated in the meeting which was presided over by one Riyaz
Firnagipet. In this meeting, issues like expansion of organisation,
strengthening of Muslims on political, educational and administrative
fronts were discussed. Nothing incriminating is alleged to have
been mentioned which would attract charges under the UAPA, 1967
especially the ones which have been alleged to have been committed
by the Appellant. Reference has also been made with regard to the
meeting held on 6th and 7th of July 2022 at Ahmad Palace. In the
said meeting, no active role is attributed to the Appellant except for
he being present and that the premises where this meeting was
held was in his possession being a tenant. Again, there is nothing
incriminating against the Appellant in the statement given by witness
“Z” with regard to the present meeting. The witness has merely stated

6 [2024] 8 SCR 633 : 2024 SCC OnLine SC 1945/ Criminal Appeal No. 317 of 2024 decided on 13.08.2024.
1104 [2024] 12 S.C.R.

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that the meeting was convened in view of the derogatory statements
made by one Nupur Sharma against Prophet Mohammad.
26. This Court in the case dealing with the bail application of Md.
Jalaluddin, the co-accused of the Appellant and the owner of the
premises had an occasion to deal with the paragraphs of the
chargesheet where reference to the meetings held on 29th May 2022
and 6th and 7th of July, 2022 were made. The said paragraphs had
been reproduced herein under. On consideration of the allegations
made therein, when seen in the context of the statement of the
protected witness ‘Z’ as has been supplied to the Court for perusal
it was stated in Paragraph 11 of the said judgment (relevant part)
reads as follows:
“11. xxx xxx xxx xxx
Paragraph 17.16 alleges that protected witness Z stated
that in the meeting, subjects such as the expansion of the
organisation, basic and advanced training of PFI members
and future PFI plans were discussed, and a direction was
given to trained PFI cadre to eliminate one Nupur Sharma.
In the statement of protected witness Z, all that is not
found. In fact, protected witness Z stated that during the
meeting, emphasis was given on strengthening the status
of Muslims, imparting them basic and advanced training
and strengthening the status of education, politics and
administration of Muslims and 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 29 th May 2022. We are not reproducing the
statement of the protected witness Z as it has been kept
in a sealed cover. Suffice it to say that what is reproduced
in paragraph 17.16 is not correct. The material portion of
witness Z’s actual statement has been completely distorted
in paragraph of the charge sheet. Several things which
protected witness Z did not state have been incorporated in
paragraph 17.16. Unfortunately, paragraph 17.16 attributes
certain statements to protected witness Z, which he did not
make. NIA owes an explanation for that. The investigating
machinery has to be fair. But, in this case, paragraph 17.16
indicates to the contrary.”
[2024] 12 S.C.R. 1105

Athar Parwez v. Union of India

27. The Court had further gone to the extent of saying and rightly so
that in the chargesheet there is no allegation that the Appellant was
a member of a terrorist gang or organisation. It is worth mentioning
here that the PFI of which the Appellant was a member has not been
declared a terrorist organisation within the meaning of Section 2(m)
of the UAPA, 1967. It was also found that the PFI is not mentioned
as a terrorist organisation in the first schedule of UAPA, 1967. The
chargesheet and the statement of witness ‘Z’ when seen as it is, it
would not be possible to record prima facie finding that commission
of offence under the UAPA, 1967 would be attracted as there are
no reasonable grounds for believing that the accusations are prima
facie correct.
28. Now, moving on to the statement of the protected witness ‘Y’. The
testimony of the protected witness ‘Y’ when perused indicates that
the Appellant is alleged to be a person of staunch religious nature
who used to participate in religious processions and demonstrations
against the policies of the Government. He had been motivating the
people of his locality to join the activities of the PFI. The meetings
held at Ahmad Palace has been acknowledged by him to be so held
where lot of outsiders had come. He is, however, completely silent
with regard to the nature of the activities or the meetings held therein.
29. As regards protected witness ‘X’, although he had identified the
Appellant to be involved in the protest/demonstration held on
09.06.2022 against the remarks made by Nupur Sharma against
Prophet Mohammad where provocative slogans were raised. The
allegation against the Appellant is that he had been encouraging
others to do so. Beyond that, there is nothing which is alleged
against the Appellant which would bring the act or omission of the
Appellant within the ambit of the alleged offences committed by him
under the UAPA, 1967.
30. Allegations against the Appellant with regard to having collected Zakat
from the people for helping the PFI or recruiting members of PFI.
Suffice it to say at this stage, that on the day such activities were
carried out by the Appellant, PFI was not a banned organisation.
None of the witnesses or the protected witnesses stated that the
money so collected in the form of Zakat was ever misappropriated
by the Appellant or was in any manner used for illegal activities. The
statement of the protected witnesses has not mentioned anything
1106 [2024] 12 S.C.R.

Supreme Court Reports

specific that would be attributed to the Appellant which could prima
facie attract charges under the UAPA, 1967.
31. It is thus apparent that the first test as has been laid down by the
various judgments of this Court referred to above, stands satisfied
relating to Section 43-D(5) of the UAPA, 1967. Another aspect which
cannot be ignored is that the material which has been allegedly
recovered from the Appellant especially the documents which
according to the prosecution contained the incriminating contents as
per the seizure memo were from the second floor. As is apparent from
the rent deed, on which the prosecution itself has placed reliance,
only the first floor was rented out of Ahmad Palace to the Appellant,
and he was in exclusive possession thereof. This also raises some
doubt with regard to the recovery of the material.
32. The Appellant was arrested on 12.07.2022. He has undergone custody
for more than two years and four months. Chargesheet was filed on
07.01.2023 but till date charges have not been framed which is an
admitted position. There are 40 accused and 354 witnesses cited
by the prosecution to be examined. There can be no doubt that the
trial is not likely to complete soon, and as has been laid down by
various judgments of this Court as has been referred to above, the
Appellant cannot be allowed to languish in jail indefinitely and that
too without a trial. If such an approach is allowed Article 21 of the
Constitution of India would stand violated. The ratio as laid down by
this Court in Union of India v. K.A. Najeeb (supra) as also the other
judgments in Javed Ghulam Nabi Shaikh v. State of Maharashtra
and Anr. (supra) and Thwaha Fasal v. Union of India (supra) would
be applicable to this case and would squarely apply entitling the
Appellant for grant of bail.
33. The co-accused of the Appellant, Md. Jalaluddin has on similar
grounds been granted the same benefit. In the said case, this Court
in paragraph 21 has held as follows:
“21. Before we part with the Judgment, we must mention
here that the Special Court and the High Court did not
consider the material in the charge sheet objectively.
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
[2024] 12 S.C.R. 1107

Athar Parwez v. Union of India

granting bail. The allegations of the prosecution may
be very serious. But, the duty of the Courts is to
consider the case for grant of bail in accordance with
the law. 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. If the Courts start
denying bail in deserving cases, it will be a violation of
the rights guaranteed under Article 21 of our Constitution.”
(Emphasis Supplied)

34. In the light of the above, the impugned judgment is set aside. The
Appeal is accordingly allowed with a direction that the Appellant be
enlarged on bail on the appropriate terms and conditions to be fixed
by the Special Court.
35. The Appellant for this purpose shall be produced before the Special
Court within a maximum period of 07 days from today. The Special
Court shall enlarge the Appellant on bail until the conclusion of the
trial on appropriate terms and conditions after hearing the Counsel
for the Respondent.
36. It is clarified here that the observations made hereinabove are tentative
in nature, with reference to the prayer made in the present Appeal
confining it to the case of the Appellant. It shall have no bearing on
the trial or on the case of the co-accused.
37. Pending applications if any stand disposed of.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Divya Pandey