How courts decide bail in UAPA cases: Adv Dhruv Gupta answers

In order to understand the evolving landscape of the bail jurisprudence vis-à-vis the anti-terror law, The Indian Express speaks to advocate Dhruv Gupta, who practices in the Supreme Court and other judicial fora, specialising in criminal litigation and white-collar crimes.

What provision in UAPA is most stringent when it comes to grant of bail?

Gupta: Usually, the most stringent sections will obviously be the ones that have the highest punishment. Higher the punishment, higher is the difficulty in securing the bail. Offences mentioned under Chapter IV (from Sections 15 to 23) and Chapter VI (from Sections 35 to 40) make it more difficult to secure bail, in view of Section 43D(5) of Unlawful Activities (Prevention) Act, 1967.

On what grounds bail can be granted in UAPA cases?

Gupta: No single circumstance alone can serve as a universal yardstick to grant or refuse bail to an individual. The accused has to fulfil the “tripod test” as laid down in the judgment of P. Chidambaram, which is as follows:

Firstly, the accused is not a flight risk. Secondly, the accused is willing to face the trial and lastly, the accused cannot, and will not tamper with any evidence or influence any witness.

In UAPA cases, besides the aforesaid tripod test, two extra conditions, famously known as the “twin conditions” are required to be satisfied. These twin conditions, that displace the presumption of innocence, are laid down in Section 43D(5) UAPA, and include:

1. No person accused shall be released unless the Public Prosecutor has been given an opportunity of being heard and;

2. If the court, on a perusal of the case diary or chargesheet, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.

Thus, the statutory architecture of UAPA is that for offences under Chapters IV and VI, besides the tripod test laid down in P Chidambaram, the aforementioned twin conditions also need to be satisfied. As can be seen from an analysis of various judicial precedents, bail in UAPA cases can be granted in case of absence of “reasonable grounds to believe the accusation is prima facie true”.

Further, the Supreme Court in catena of cases, including K A Najeeb, 2019 and Sheikh Javed Iqbal v. State of Uttar Pradesh, 2024, has held that bail can also be granted in UAPA cases where there is a violation of the right to speedy trial/prolonged pre-trial custody, as in such case, Article 21 of the accused prevails over the statutory bar under section 43 D(5) and the aforementioned twin conditions “melt down”.

How do courts interpret the “prima facie true” standard in practice as provided under Section 43D(5)?

Gupta: The landmark judgment on this issue is the 2019 case of the Supreme Court titled NIA v. Zahoor Ahmad Shah Watali, wherein it was categorically laid down that “By its very nature, the expression “prima facie true” would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence.

It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true”, as compared to the opinion of accused “not guilty” of such offence as required under the other special enactments.”

However, in the case of Vernon vs. State of Maharashtra, 2023, it was held that there is a requirement for at least surface-analysis of probative value of the evidence and the satisfaction of the court of the quality or probative value the evidence, for grant of bail, in order to ascertain whether the allegations are ‘prima facie true’ or not.

In practice, if there are incriminating statements of witnesses or co-accused or other connecting evidence like call-detail records, electronic record, money trail, etc. to link the concerned person with the commission of offence, circumstantially, the bail is denied.

What were the recent changes made by the SC to the provisions of grant of bail under UAPA?

Gupta: Recently, in the judgment of Sheikh Javed Iqbal v. State of Uttar Pradesh, 2024, it has been held that a constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds the right of an accused to speedy trial has been violated.

The said principle has been reiterated in the judgment of Shoma Kanti Sen v. State of Maharashtra, 2024. This is in line with the rationale of the judgment of K A Najeeb, 2019.

As a defence lawyer what is your strategy in UAPA cases especially if 43D(5) is applied in the case you are handling?

Gupta: There are various factors that weigh with the courts while adjudicating upon a bail application in UAPA indictments.

First of all, the specific allegations in the chargesheets need to be identified and then, the statements of co-accused need to be assailed, as in many cases, the person is arrested on the basis of mere disclosure statements of co-accused and thus, the nexus between the person and other co-accused needs to be broken from the very beginning.

The voluntariness and authenticity of the statements need to be challenged. It needs to be seen whether the statements have been retracted. The probative value of the evidence is to be countered.

It needs to be seen whether the investigating agency has complied with all the mandatory legal procedures envisaged under UAPA and CrPC and in judicial precedents during investigation, for example, during search & seizure, recording of statements, collection of electronic evidence, etc. The sanction order under Section 45 needs to be examined.