UAPA - 'Watali' Precedent Won't Apply If Evidence Is Of Low Probative Value On Surface Level Analysis : Supreme Court

What is the Watali principle?

In Watali (2019), an apex court bench headed by former judge AM Khanwilkar set aside the bail granted by the Delhi High Court to a Kashmiri businessman. The high court had found no 'reasonable grounds' to believe that the allegations against the UAPA accused were prima facie true. It had also discarded certain pieces of evidence from consideration after noting that they were inadmissible. The National Investigating Agency (NIA) challenged this decision saying that the high court had virtually conducted a 'mini-trial'. While deprecating the Delhi High Court's 'approach', the Supreme Court held that no attempt could be made to venture into the merits and demerits of the case at a pre-trial stage, saying: “The issue of admissibility and credibility of the material and evidence presented by the investigating officer would be a matter for trial.”

A determination regarding the grant of bail, the bench further said, would only require a court to record a finding on the basis of 'broad probabilities' regarding the involvement of the accused in the commission of the alleged offence. It observed:

“The high court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The high court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The court is expected to apply its mind to ascertain whether the accusations against the accused are prima facie true.”

In essence, not only did the Watali bench restrict the ambit of examination of a court at a pre-trial stage to the prosecution's version of events – unchallenged in cross-examination, but also placed a bar on a detailed analysis of the prosecution's case itself when dealing with the question of bail under Sub-section (5) of Section 43D. As a result of this judgement, courts can cite evidence placed on record by the National Investigating Agency, irrespective of their admissibility or probative value, to deny bail. This interpretation has significantly narrowed the scope of the already stringent section and made it all the more difficult for UAPA undertrials to get bail.

What has the Supreme Court said about this earlier?

From KA Najeeb to Thwaha Fasal, some progress has been made in liberalising the bail jurisprudence under the Unlawful Activities (Prevention) Act. In Najeeb (2020), the apex court upheld the power of a constitutional court to grant bail to people accused of offences under the UAPA, irrespective of Section 43D(5), on finding that their right to a speedy trial under Article 21 has been violated. This ratio was followed in a line of judgements, in which a prolonged period of incarceration prompted the top court to release the accused on bail.

In Thwaha Fasal (2021), a significant effort was made by a bench of Justices Ajay Rastogi and Abhay S Oka to temper the severity of the Watali principle by holding that the embargo on the grant of bail under Section 43D(5) would not apply if the charge sheet did not reveal a prima facie case. In other words, the ingredients of the offence(s) a UAPA undertrial is accused of committing should prima facie be made out only on the basis of the charge sheet for the court to decline their bail plea. The bench observed:

“The proviso imposes an embargo on grant of bail to the accused against whom any of the offences under Chapters IV and VI have been alleged. The embargo will apply when after perusing the charge sheet, the court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true. Thus, if after perusing the charge sheet, if the court is unable to draw such a prima facie conclusion, the embargo created by the proviso will not apply...If a charge sheet is already filed, the court has to examine the material forming a part of the charge sheet for deciding the issue of whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the court has to take the material in the charge sheet as it is.”

What has the Supreme Court said about this now?

In Vernon, the bench of Justices Aniruddha Bose and Sudhanshu Dhulia held that a plea for bail under Section 43D(5) of the Unlawful Activities (Prevention) Act would not pass muster of the prima facie test envisioned in Watali without “at least surface-analysis of the probative value of evidence” and if the court is not satisfied of the worth of the probative value of such evidence. While Watali restricts a court from 'weighing' the evidence at the stage of adjudicating a bail application, Vernon (2023) has given birth to a new species of analysis – shallow enough to not run contrary to the precedent that holds the field, but deep enough to catch low-value evidence in its net, to be eventually disregarded. The court observed:

“In the case of Zahoor Ahmad Shah Watali, it has been held that the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the charge sheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie 'test' unless there is at least surface analysis of the probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth.”

Notably, the Gonsalves bench has also imported a key principle laid down by the top court in the context of the now-repealed Terrorist and Disruptive Activities (Prevention) Act, 1987. This will also serve as a reminder to the courts of their own elevated duty to preserve the liberty and the rights of a UAPA accused:

“When the statutes have stringent provisions, the duty of the court would be more onerous. Graver the offence, the greater should be the care taken to see that the offence would fall within the four corners of the Act. Though these [were said] while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, the same principle would apply in respect of the 1967 Act as well.”

Although couched in deferential terms, Vernon marks a radical departure from the Watali ruling given by a coordinate bench, or at the very least, a dilution of the Watali principle. By engrafting this important exception on a narrow and restrictive principle governing the liberty of people accused of crimes with famously low conviction rates, the Supreme Court has paved the way for more UAPA undertrials – languishing in jail for years and months awaiting the trials' final outcome – to apply for and get bail.

Case Details

1. Vernon v. State of Maharashtra | Criminal Appeal No. 639 of 2023
2. Arun v. State of Maharashtra | Criminal Appeal No. 640 of 2023

Citation : 2023 LiveLaw (SC) 575

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