Successfully Crossed Hurdle Of Sec.43-D(5) Of UAPA: Jammu & Kashmir and Ladakh High Court Grants Bail To Accused Booked On Co-Accused’s Statement
The Jammu & Kashmir and Ladakh High Court was considering an appeal filed against the judgment rejecting a bail application.
Chief Justice Arun Palli, Justice Rajnesh Oswal, Jammu & Kashmir and Ladakh High Court
The Jammu & Kashmir and Ladakh High Court has granted bail to an accused who was arrested over the statement made by his co-accused. The High Court noted that the accused had successfully crossed the hurdle of Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967, which provides a stringent condition for granting bail.
The High Court was considering an appeal filed against the judgment rendered by the Court of the Special Judge (UAPA) (Trial Court) rejecting the application filed by the appellant for grant of bail in a charge sheet arising out of an FIR for offences punishable under Sections 307 IPC, 7/25 of the Arms Act and Sections 13, 18-B, 20, 23, 33 and 39 Unlawful Activities (Prevention) Act, 1967.
The Division Bench of Chief Justice Arun Palli and Justice Rajnesh Oswal stated, “Though Section 43-D (5) of the Act provides stringent condition for granting bail where the accused is arrested for the commission of offences punishable under Chapters IV and VI of the Act, but in view of the only material against the appellant in the form of disclosure statement made by the accused Hafiz Abdullah Malik, we are of the considered view that the appellant has successfully crossed the hurdle of 43-D(5) of the Act. No material has been brought to our notice that the release of the appellant will hamper the trial or the appellant would indulge in influencing the witnesses.”
Advocate Parvaiz Amin Wani represented the Appellant while Senior Additional Advocate General Mohsin Qadiri represented the Respondent.
Factual Background
The appellant was arrayed as the second accused in a criminal case only on the basis of the statement made by the first accused wherein he had stated that the appellant was working as Over Ground Worker. There was no recovery of any incriminating material from the appellant. The appellant was arrested on November 17, 2021, on the basis of the disclosure statement made by the accused and he had been in custody ever since.
Reasoning
On a perusal of the statement on record, the Bench noted that over the course of more than four years, the prosecution had produced only 13 out of 30 cited witnesses, thereby highlighting the slow progress of the trial.
Reference was made to the judgment of the Apex Court in Union of India v. K. A. Najeeb, (2021) wherein it has been observed that the prolonged incarceration and the unlikelihood of an early conclusion of trial are relevant considerations in appropriate cases.
The Bench further noted that Section 43-D (5) of the Act provides stringent conditions for granting bail where the accused is arrested for the commission of offences punishable under Chapters IV and VI of the Act. However, considering that the only material against the appellant was in the form of a disclosure statement made by the co-accused, the Bench stated that the appellant had successfully crossed the hurdle of 43-D(5) of the Act.
Thus, considering such facts and circumstances, the Bench allowed the appeal and directed the release of the appellant on bail.
Cause Title: Burhan Ahmad Mattoo v. Union Territory of Jammu and Kashmir (Neutral Citation: 2026:JKLHC-SGR:94-DB)
Appellant: Advocates Parvaiz Amin Wani, Rayees Ahmad Dar
Respondent: Senior Additional Advocate General Mohsin Qadiri, Advocate Maha Majeed