UAPA | Punjab & Haryana High Court Grants Bail To Man Accused Of Hoisting Khalistani Flag; 5-Year Custody Without Trial Violates Article 21
Safiya Malik
The High Court of Punjab and Haryana, Division Bench of Justice Deepak Sibal and Justice Lapita Banerji set aside the order of the Special NIA Court, Mohali, and directed the release of the appellant on bail in a case under the Unlawful Activities (Prevention) Act and related provisions of the Indian Penal Code. The case arose from an incident in which two individuals allegedly hoisted a flag inscribed with “Khalistan” at the office of the Deputy Commissioner, Moga. The appellant was accused of sheltering the co-accused and promoting secessionist propaganda. The Court held that, given the absence of incriminating recovery, prolonged custody exceeding five years, and no likelihood of early conclusion of trial, continued detention was unjustified under Article 21 of the Constitution.
The case arises from an incident reported on 14 August 2020, when two individuals allegedly entered the administrative complex of the Deputy Commissioner’s Office at Moga, ascended to the top floor, hoisted a saffron-yellow flag bearing the word “KHALISTAN,” and cut the rope of the Indian National Flag, causing it to fall to the ground. An FIR was registered under various provisions of the Indian Penal Code, the Unlawful Activities (Prevention) Act, the Prevention of Insults to National Honours Act, and the Information Technology Act.
During investigation, authorities concluded that the act was carried out at the behest of an individual declared a terrorist by the Government of India, associated with an unlawful organisation. It was alleged that the appellant had viewed videos of the said individual, posted supportive comments, and played a role in influencing one of the accused involved in the hoisting of the flag. The prosecution further stated that a video promising monetary reward for hoisting a separatist flag on government buildings was recovered from the appellant’s mobile phone and that a single telephonic conversation from the day prior constituted link evidence.
The appellant contended that no incriminating recovery was made apart from his mobile phone, and that there was no material connecting him to offences under the UAPA. It was submitted that only 20 of 149 witnesses had been examined, despite his custody spanning more than five years. Reliance was placed on Supreme Court decisions recognising prolonged incarceration and delayed trial as relevant considerations for bail under Article 21 of the Constitution.
The prosecution argued that the appellant had encouraged his co-accused to support an unlawful organisation and had provided shelter to them after the incident. It asserted that the nature of accusations and the apparent involvement in activities linked to terrorist objectives warranted continued detention under Section 43-D(5) UAPA.
The Court recorded that “a perusal of the status report reveals that no incriminatory material was found against the appellant, at this stage.” It noted that allegations rested on the claim that the appellant had “watched video of Gurpatwant Singh Pannu and indoctrinated his cousin… to support the formation of separate State of ‘KHALISTAN’… Apart from one phone call… nothing else has been brought on record to link the appellant.” The Court stated that “no recovery has been made from the appellant, apart from his mobile phone.”
Referring to the right to liberty, the Bench observed that “Article 21 of the Constitution of India enshrines the fundamental right to protection of life and liberty which also includes the right to a speedy trial.” It relied upon judicial precedents to state that “long custody by itself would entitle the accused under UAPA to the grant of bail by invoking Article 21.” The Court remarked that it sought to “prevent a situation where the lengthy and arduous process of trial becomes the punishment in itself.”
The judgment recorded precedent that “serious allegations against accused by itself cannot be a reason to deny bail.” It cited that “nature and seriousness of the offences… circumstances peculiar to the accused… apprehension of witnesses being tampered with… [and] larger interest of the public or the State would be relevant factors.”
The Court quoted decisions holding that pre-conviction detention is ordinarily intended to ensure trial integrity, but “any form of deprival of liberty results in breach of Article 21… and must be justified… following a just and fair procedure.” It further noted that constitutional courts may grant bail even under stringent statutory regimes when “right of the accused-undertrial under Article 21… has been infringed.”
Discussing more recent precedent, the Court recorded that incarceration without timely trial requires urgent judicial scrutiny, observing: “If trials are not concluded in time, the injustice wrecked on the individual is immeasurable… Courts therefore have to be sensitive… and ensure that trials… are taken up and concluded speedily.”
The Bench also reproduced the principle that “criminals are not born but made… the human potential in everyone is good… never write off any criminal as beyond redemption.”
The Court stated that the appellant had “undergone an actual sentence of 05 years and 29 days and the end of the trial is nowhere in sight,” and that no prima facie material had been produced to establish involvement in activities punishable under Chapters IV and VI of the UAPA as required by Section 43-D(5).
In its operative portion, the Division Bench recorded that the prosecution had not been able to give any reasonable estimate for completion of the trial and “the Court is left with no other option but to release the appellant on bail.”
“In view of the aforesaid discussion and the law laid down by the Supreme Court, especially when the appellant is in custody for more than five years and the end of the trial is not in sight, considering only 20 witnesses have been examined, the appeal is allowed and the impugned order dated June 06, 2024, is set aside. “The appellant be released on regular bail subject to the following conditions besides furnishing of requisite bail bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.”
The Court directed that the appellant shall “furnish bond of ₹10 lakh with two sureties of ₹10 lakh each; surrender his passport in the Trial Court if he is holding the same and it is still with him; appear before the Trial Court on each and every date unless exempted by the Court; appear before the Investigating Officer as and when summoned.” The appellant “shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or cited as a witness.”
“He shall not involve himself in any criminal activity and if during the pendency of trial he is found involved in the commission of any offence punishable under UAPA, the prosecuting agency would be free to approach this Court for recalling this order and cancellation of his bail. He shall not sell, transfer or in any other manner create third party rights over his immovable property; and he shall furnish an undertaking that in case of his absence, the Trial Court may proceed with the trial and he shall not claim re-examination of any witness.”
“At the time of release of the appellant, the concerned SHO shall be informed and he shall appear before the SHO on every alternate Monday till the conclusion of the trial. In the event of a breach of any of these conditions, or of any other condition imposed by the Trial Court independently, it would be open to the prosecution to seek cancellation of the bail of the defaulting appellant without any further reference to this Court.”
Advocates Representing The Parties
For the Appellant: Bhanu Pratap Singh, Advocate
For the Respondent: Sukhdeep Singh Sandhu, Special Public Prosecutor
Case Title: Jagwinder Singh @ Jagga v. National Investigating Agency
Neutral Citation: 2025: PHHC:149376-DB
Case Number: CRA-D-938-2024 (O&M)
Bench: Justice Deepak Sibal and Justice Lapita Banerji
