S.43D UAPA | In Extraordinary Circumstances, High Courts Have Discretion To Grant Bail To A Person Who Is Not An Indian Citizen: Madras HC

“43-D (7) of the UA(P) Act, 1967, stipulates that bail cannot be granted to a person who is not an Indian citizen and has entered the country unauthorisedly or illegally…It is not as if that there is no discretion given to the Court. The Court can grant bail even to a person who is not a citizen under extraordinary circumstances,” the court observed.

The bench of Justice SS Sundar and Justice Sunder Mohan was hearing appeals preferred by persons whose bail was canceled by the Special Court under the National Investigation Agency Act 2008. The court noted that bail was canceled for one of the appellants, Mohamed Rifas, alleging that he had suppressed his nationality and had obtained bail.

Rifas had challenged the cancellation of bail by contending that the prosecution had relied on an FIR registered in 2019 based on an alleged confession made to a Village Administrative Officer. Rifas submitted that no chargesheet had been filed in the FIR yet and the prosecution had no other material to prove that Rifas was a Sri Lankan.

The State however argued that Rifas had misused his liberty in various ways and had suppressed his nationality. It was submitted that being a Sri Lankan, Rifas was not entitled to bail under Section 43D (7) of the UAPA.

The court noted that even assuming Rifas was a Sri Lankan national, his liberty could not have been curtailed after 4 years merely because of an FIR. The court also noted the prosecution had not filed a petition for cancelling the bail immediately after the registration of FIR but had filed the application after 3 years without explaining the reasons for the delay.

“The instant cancellation of bail is filed three years after the registration of the FIR in Crime No. 188 of 2019. Liberty cannot be curtailed in such a fashion. The prosecution has not explained the reasons for the delay in their affidavit filed in support of cancellation. For the aforesaid reasons, we are of the view that the order cancelling the bail is unjustified,” the court said.

Inability To File Appeal Not A Ground For Seeking Cancellation of Bail

One of the grounds raised by the prosecution for seeking cancellation of bail was that the court had failed to consider the restriction under Section 43D (5) of UAPA. The appellants submitted that this argument could not be countenanced and in any event, the prosecution should have proceeded with an appeal.

The court agreed with the appellants and observed that the prosecution ought to have filed an appeal against the order. The court did not agree with the prosecution's submission that they were constrained to apply for cancellation of bail since the statutory period of limitation for filing an appeal had expired.

“It is the case of the respondent that since the statutory period of limitation had expired for filing an appeal, they were constrained to file a petition for a cancellation of the bail. We are unable to countenance this submission firstly because the inability to file an appeal cannot be a ground to file cancellation of bail petition,” the court noted.

Thus, finding that the grounds raised by the prosecution did not warrant a cancellation of bail, the court allowed the appeal and set aside the order of cancellation of bail. However, to ensure that liberty was not misused by the appellants, the court deemed it fit to impose stringent conditions.

Counsel for the Appellants: Mr.I.Abdul Basith

Counsel for the Respondent: Mr.R.Karthikeyan Special Public Prosecutor for NIA cases

Citation: 2023 LiveLaw (Mad) 397

Case Title: Mohamed Rifas @ Mohamed Rigbas v Union of India

Case No: Crl.A.Nos.1000,1001, 771 and 772 of 2022