The Telegraph
Since 1st March, 1999
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SC toughens terror bail terms

New Delhi, Oct. 3: The Supreme Court’s first order on bail under the Prevention of Terrorism Act has made stringent the conditions to grant bail under the law.

A division bench of Justices S.. Variava and H.K. Sema, in an eight-page order on September 26, set aside a Madras High Court order granting bail to R.R. Gopal, editor of Tamil biweekly Nakkeeran.

Gopal’s case was the first under the anti-terror law to come up for bail. The high court had granted him bail on the grounds that there were discrepancies in the prosecution version about his possession of arms.

On an appeal by Tamil Nadu, the apex court said the high court “does not seem to have applied its mind” while granting bail.

The state government has charged Gopal with “possession of arms” and “aiding and abetting” the activities of forest brigand Veerappan and the Tamil separatist movement gaining momentum around him in his hideout of Sathyamangalam forests on the Tamil Nadu-Karnataka border.

The apex court upheld the trial court order refusing bail to Gopal because the “respondent (Gopal) was accused of a serious offence and that he had not been able to discharge the burden of showing that there were grounds for believing that he was not guilty of committing an offence”.

This is one aspect of the anti-terror law — criticised for its stringent bail provisions as those of its predecessor Tada — that is under severe criticism in legal circles. Unlike in normal criminal law, the terror-law accused “has the onus of proving grounds to show that the accused is not guilty of committing an offence”.

The apex court also said there was no “discrepancy” in the police version over Gopal’s possession of arms. Tamil Nadu police had said he possessed a “gun”, which was also described as a “revolver” and a “pistol”.

The police told the apex court that thuppaakki was the only word in Tamil for a gun or a revolver or a pistol. As a result, the English translation had used all three words.

The apex court then said under section 4 of the anti-terror law, “possession not just of an arm, but also of an ammunition is sufficient. Ammunition has also been allegedly recovered (from Gopal). There is no discrepancy in the description of the ammunition”.

The apex court also clarified that to grant bail under the anti-terror law, courts “should ensure that the accused would not abscond and/or that he would not tamper with the evidence or witnesses”.

The apex court explained the methods to be adopted by courts in granting bail under the law.

“It is to be seen that at the stage of granting bail, the court does not decide the merits of the matter. Of course, a prima facie view has to be formed in the court in order to satisfy itself that there are grounds for believing that the accused is not guilty of committing the offence he is charged with,” it said.

This means that even for bail, the merits of the offence might have to be argued.

The order has come when another bench has reserved its verdict on the validity of the anti-terror law itself, after a batch of petitions contended that the law was draconian and, hence, unconstitutional.

The apex court pointed out that the high court had accepted Gopal’s contention that as “an investigating journalist”, he had “exposed” the chief minister (Jayalalithaa) and senior police officials which “has not been liked by the people in power”.

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