New Delhi, Jun 10: The Delhi High Court on Wednesday granted bail to Kashmiri human rights activist Khuram Parvez in a case under the anti-terror law.
A bench of Justices Navin Chawla and Ravinder Dudeja took note of Parvez’s over-four-year incarceration in the case and the unlikelihood of the trial concluding soon to hold that his rights under Article 21 of the Constitution trumped the restriction on bail under section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA).
The bench further observed that having lost his leg in a landmine blast in 2004, the accused is infirm and deserves “special consideration”.
The court set aside a trial court’s December 2024 order rejecting Parvez’s bail plea and ordered, “We direct that the appellant be released on bail in RC No. 30/2021/NIA/DLI, P.S. NIA, in NIA/4/2022 on conditions.”
The court asked Parvez to surrender his passport, not leave Delhi without the trial court’s permission and regularly report to the investigating officer.
It also directed him not to make any public statement on the case or participate in activities prejudicial to public order or the trial’s integrity, or “upload/share/disseminate or circulate any anti-national material”.
Parvez, the programme coordinator of the Jammu and Kashmir Coalition of Civil Society and the chairperson of the Asian Federation Against Involuntary Disappearances, was arrested by the National Investigation Agency (NIA) on November 22, 2021.
The NIA had alleged that under the guise of human-rights activism, Parvez conspired with a Lashkar-e-Taiba (LeT) operative to run a network of overground workers (OGWs) for furthering the activities of the Pakistan-based terrorist organisation and committing terror acts in India.
It had alleged that Parvez was actively involved in collecting information regarding the movement of Army vehicles near the Line of Control (LoC), road conditions and details of Army camps, structures of the Army, paramilitary and police etc.
The NIA has charge-sheeted Parvez for several offences, including under sections 13 (punishment for unlawful activities), 18 (punishment for conspiracy etc.), 18B (punishment for recruiting of any person or persons for terrorist act), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA and other sections under the Prevention of Corruption Act and the Indian Penal Code.
Opposing the bail plea, the NIA contended in the high court that material shows that the case against the human-rights activist is founded on overt acts, including recruitment of OGWs for the LeT, transmission of intelligence to a Pakistan-based handler, active orchestration of public violence, possession of targeting lists of Indian Army personnel and corrupt engagement with a former NIA officer.
The NIA counsel emphasised that Parvez is a flight risk, instigated protests after the encounter of Burhan Wani and his past antecedents included five other cases involving similar secessionist and terrorist activities.
In the judgment, the court said the allegations against the accused, though serious, were based on the statement of a co-accused-turned-approver, who claimed to be an NIA informer, and were yet to be tested in trial.
It observed that the NIA’s allegations and Parvez’s defence ought to be tested against his long period of incarceration, the unlikelihood of the trial ending soon and the yardstick of “bail being the rule”.
“The appellant’s rights under Article 21 of the Constitution of India need to be balanced and may even trump the restriction imposed under section 43D(5) of the UAPA,” the court said.
“We are also to keep in mind that the appellant is infirm. Though the learned SPP has emphasised that his infirmity has not deterred the appellant from still indulging in activities, which he describes as being anti-national, the fact remains that the appellant is infirm and deserves special consideration,” it added.
The court noted that although the Supreme Court has referred issues arising from the interplay between Article 21 and section 43D(5) of the UAPA to a larger bench, the top court has nonetheless released the accused in that case on interim bail for six months on account of a substantial period of incarceration.
In the present case, it said, the incarceration was for almost four years and a half, and the trial is at the stage of arguments for the framing of charge, with the prosecution intending to examine 197 witnesses.
The court asked Parvez to execute a personal bond of Rs 2 lakh with two sureties in the like amount and clarified that his release is subject to his custody in any other case.
Other conditions included keeping his mobile phone switched on at all times, not changing his residence or contact details without prior intimation to the investigating officer and the trial court, and not tampering with evidence.
Parvez’s counsel contended that mere statements against him without conclusive evidence did not make out a prima-facie case under the UAPA.
The lawyer submitted that the information regarding Army structures etc. was collated and published in 2015 in a report, which was a legitimate human-rights documentation in public interest and most of the information was collected through RTI.
