'Bail The Exception, Jail The Rule Under UAPA' : Supreme Court Expounds Tests To Grant Bail In UAPA Cases

While denying bail to a man charged under the Unlawful Activities (Prevention) Act, 1967 ("UAPA") for allegedly promoting Khalistani terror movement, the Supreme Court on Wednesday (February 7) held that mere delay in trial is no ground to grant bail in grave offences.

Notably, the Bench comprising Justices MM Sundresh and Aravind Kumar observed that under the UAPA, "jail is the rule and bail an exception".

To quote the judgment, which is authored by Justice Aravind Kumar,

"The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' – unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)– 'shall not be released' in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released' – suggests the intention of the Legislature to make bail, the exception and jail, the rule".

The judgment further says,

"Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied – that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence)."

In arriving at the decision, the Court enunciated a two-prong test to be applied while dealing with bail applications under the Act. The same is discussed hereunder.

I: Whether the test for rejection of the bail is satisfied?

Dealing with the first prong, the court analyzed Section 43D(5), UAPA, which imposes restrictions on grant of bail to a person accused of offenses under Chapters IV and VI of the Act, over and above those stipulated under CrPC. It was observed that sub-section (5) bars a Special Court from releasing the accused on bail without affording Public Prosecutor a chance to be heard, however, the proviso thereto imposes a complete embargo on the grant of bail. To that extent, bail limitation imposed under UAPA is unique.

To recap, the proviso to Section 43D(5) lays down that if the Court, on perusal of the case diary or the final report, is of the opinion that there are reasonable grounds for believing that the accusation against a person, as regards commission of offence(s) under Chapter IV and/or VI of UAPA, is prima facie true, such accused person shall not be released on bail or on his own bond.

From the phraseology of the provision, the Court inferred that the intention of the Legislature, while enacting UAPA, was to make "jail" the rule and "bail" an exception. It was further opined that the exercise of general power to grant bail under UAPA is "severely restrictive" in scope, with the courts being required to arrive only at a "prima facie" satisfaction, "a low standard" (when compared to "strong suspicion" as in case of discharge), based on material on record.

Thus, as a "rule", bail applications under UAPA must be rejected, subject to provisions of Section 43D(5). However, if the test for rejection of bail is not satisfied, the Courts shall proceed to decide a bail application in accordance with the "triple test"/"tripod test".

II: Whether the accused satisfied the general triple test for grant of bail?

Under the second prong, the Court held it necessary to determine whether the accused is a flight risk, whether there is likelihood of his influencing witnesses, and whether there is possibility of evidence tampering. In this analysis, it said, various factors such as nature of offence, length of punishment (if convicted), age, character, and status of accused may be considered.

Further, in view of judicial precedents including NIA v. Zahoor Ali Watali, the following key points relevant to adjudication of a bail application under UAPA were illustrated:

(i) Meaning of "prima facie true": On the face of it, the material on record must show accused's complicity in commission of the offence. The material must be good and sufficient to establish a given fact (or chain of facts) constituting the offence, unless rebutted by other evidence. 

(ii) Degree of Satisfaction at Post-Chargesheet Stage: When deciding a prayer for bail after filing of chargesheet, the Court must be satisfied by the accused that despite filing of the chargesheet, reasonable grounds for believing the allegations to be true do not exist. This is because filing of chargesheet can be seen to give rise to a presumptive opinion that factual ingredients of the offence alleged must have been found to exist.

(iii) At the stage of bail, Court shall give reasons for grant/denial of bail, without undertaking detailed scrutiny of the merits/demerits of evidence.

(iv) Court must record a finding on the basis of "broad probabilities" regarding involvement of the accused in the commission of the offence, not the standard of "proof beyond reasonable doubt".

(v) Section 43D(5), UAPA is applicable since registration of an FIR for offense(s) under Chapters IV and/or VI, till conclusion of trial.

(vi) There shall be no piecemeal analysis of evidence. Material collected by the investigating agency and presented alongwith the chargesheet, including the case diary, shall be reckoned as a whole.

(vii) In case of documentary evidence, Court must look at the contents and presume the same to be true.

(viii) Admissibility of documents relied upon by prosecution not open to question: The materials collected by the investigation agency in support of the accusations in the FIR must prevail until contradicted and disproved by other evidence. The question of discarding a document at the bail stage, on the ground of being inadmissible in evidence, is not permissible.

Undertaking an analysis in terms of the above, the Court rejected the appellant's appeal.

Counsels for appellant: Senior Advocate Colin Gonsalves; AOR Satya Mitra; Advocates Mugdha and Kamran Khawaja

Counsels for respondents: ASG SV Raju; DAG Vivek Jain; AORs Ajay Pal, Dr Reeta Vasishta, Karan Sharma and Arvind Kumar Sharma; Advocates Kanu Agarwal, Annam Venkatesh, Mayank Pandey, and Rishabh Sharma

Citation : 2024 LiveLaw (SC) 100

Click here to read/download judgment