[This is a guest post by Rehan Mathur.]

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The SC passed a detailed order in the bail applications of several accused in the 2020 Delhi Riots case on 05th January 2026. As per the order, the SC granted bail to all but two of the accused; Umar Khalid and Sharjeel Imam. Throughout the 144-page order, the SC has relied upon the distinction between the central role of Khalid and Imam with the incidental role of the other five co-accused as the basis to deny bail to them. While several commentators have already said much about the order (see here and here), the piece attempts to unpack the order’s rationale by examining how the order determines delay attributable to the accused and its consideration of the prima facie case and role of the accused as relevant factors for determining bail pleas premised on delay and prolonged incarceration. It concludes that the order worsens the jurisprudence of bail in UAPA cases.

Article 21 & Prolonged Incarceration

The threshold for the grant of bail in UAPA Cases is extremely high courtesy Section 43D(5) of the UAPA and the SC’s decision in Zahoor Ahmad Shah Watali. Applications of bail, require the bail deciding judge to look only at the chargesheet and case diary to determine if the accusation against such person is prima facie true. If the accusation is prima facie true, bail cannot be granted. However, the Supreme Court recognised a completely new basis for grant of bail in UAPA cases in K.A. Najeeb. In Najeeb, the Court held that the presence of statutory restrictions under Section 43(D)(5) could not oust the ability of constitutional Courts to grant bail in cases to protect rights under Article 21 where the likelihood of trial being completed within a reasonable time was slim, and the period of incarceration already undergone was substantial.

It is important to note that Najeeb was decided by a bench of three judges, and is binding on smaller two judge benches. But this is completely ignored in the 5th January Order, which goes on to whittle down the import of Najeeb.  The Court does this by arguing that the delay caused was attributable to the accused, and by the introduction of new considerations for grant of bail under this ground.

Delay Attributable to the Accused

The Order clarifies that the inordinate delay which forms the basis of grant of bail should not be attributable to the accused. The Court notes that several objections, deferment requests and sequencing issues were raised on behalf of the accused before the trial court. Particularly, the Court also mentions delay during the stage of disclosure under Section 207 CrPC [Para 38]: “At the stage of compliance under Section 207 CrPC itself, the Trial Court noted that despite repeated directions, certain accused declined to receive copies of the charge-sheet in the manner directed, insisted on alternate modes of supply, or filed successive applications, necessitating further procedural orders and contributing to delay at the pre-charge stage. These aspects emerge from the record and are not matters of conjecture.“

This analysis by the Court is faulty on two grounds. First, the right of an accused to receive documents relied upon by the prosecution has been recognised as a fair trial right under Article 21. Therefore, it follows, that to meaningfully exercise this right, the accused may file applications to seek supply of illegible, missing or unrelied-upon documents. The SC in Manish Sisodia rejected this exact argument of the ED by holding that in cases of voluminous records, the accused must be given a reasonable amount of time to inspect documents. In the present case, the record extended up to nearly 22,000 pages. The time taken by the accused during the 207 stage to meaningfully exercise their fair trial right cannot thus be equated with delay attributable to the accused to defeat the grant of bail.

Second, even assuming that the accused did contribute to the delay at the 207 stage, the order makes no mention of who caused this delay. In FIR No. 59 of 2020, there are 20 accused persons. The Court makes no analysis on which of these 20 accused persons caused the delay. It could be possible that none of the seven accused seeking bail before the Court had made any contribution to the delay. Would it then be reasonable to deny bail to Accused X, simply because Accused Y might have contributed to some delay? Such an analysis is entirely missing from the Order. The Court should have undertaken an individualised analysis of the delay caused by each accused rather than attributing delay to all of them. Despite the order placing so much emphasis on the individual role of each accused, it is ironic that the order failed to employ such an approach where it was most needed.

Mixing of two standards

After clarifying the scope of delay, the Court considered the four relevant considerations for the grant of bail under Article 21 [Para 56]:

The outcome of such scrutiny must be determined by a proportional and contextual balancing of legally relevant considerations, including (i) the gravity and statutory character of the offence alleged, (ii) the role attributed to the accused within the alleged design or conspiracy, (iii) the strength of the prima facie case as it emerges at the limited threshold contemplated under the special statute, and (iv) the extent to which continued incarceration, viewed cumulatively in the facts of the case, has become demonstrably disproportionate so as to offend the guarantee of personal liberty under Article 21.

While the Supreme Court itself has negated the applicability of the gravity of the offence in deciding bail on the grounds of Article 21, the two other factors, namely, the accused’s role and the strength of the prima facie case are far more problematic. 

Addressing the factor of prima facie case first, it is clear that introducing this factor is a clear mixing up of two different grounds. The question of whether a prima facie case is made out or not is anyways a question of the merits under Section 43D(5), which the Court can address. Whether a prima facie case exists or not has nothing to do with why Najeeb and other decisions have recognised such a ground for grant of bail. This ground attempts to remedy the prolonged incarceration of the accused, which if not for the grant of bail amounts to a violation of the Accused person’s Right to liberty and speedy trial under Article 21. Mixing of the two standards amounts to making the accused’s constitutional right subservient to the draconian requirements of a special statute, in complete ignorance of constitutional supremacy.

The Role of the Accused & the Purpose of Bail

The alleged role of the two accused is also the second problematic factor considered by the Court and forms its ultimate premise for denying them bail. This begs the question then, what really is the relevance of the alleged role played by an accused person for the grant of bail under Article 21? The order seems to throw some light on this [Para 100]: 

The continued detention of those alleged to be the architects of the conspiracy may be required to safeguard broader security interests and deter future acts, whereas the rationale for continued incarceration of minor participants is comparatively attenuated once the investigative purpose is exhausted. The Court is therefore justified in calibrating its approach, ensuring that the pursuit of security does not eclipse the principle of proportionality.

The order seems to suggest that bail can be denied simply to protect security interests and deter future acts. But the purpose of denial of bail is very different. Deprivation of liberty by denial of bail is justified to ensure attendance, or prevent witness interference or tampering with evidence. Ultimately therefore, the law is settled that the object of bail is to secure the attendance of the accused at the trial. Using deterrence of future acts as a ground (especially in cases where the accused has no past antecedents) would amount to determining guilt and punishing the accused at the stage of bail, and turns the presumption of innocence on its head.

An accused who might have a tangential role may be highly influential with the ability to influence witnesses, indicating that role in an offence as such has nothing to do with bail. In any case, past antecedents, ability to influence witnesses, or risk of flight are objectively ascertainable, but the role of the accused is something that the Prosecution, and the State has control over. Allowing the role in the crime to be the basis for grant of bail allows States full control over who to make a case against, and prevent those it ascribes an ‘architectural role’ from grant of bail.

It must also be noted that the SC has granted bail under Article 21 in cases where the accused had a major role as per the Prosecution. In Najeeb, the accused was alleged to be one of the main ‘conspirators’ in the crime (who had absconded) yet, bail was granted. Similarly, in Umarmia, the Supreme Court granted bail to the alleged ‘mastermind’ who was charged under various provisions of the TADA amongst others for smuggling a large quantity of arms and ammunition. 

While proponents of this position may seek to rely on Shaheen Welfare Assn. where the Court created 4 categories of undertrials on the basis of their role, such as by directing leniency for those who were roped in by virtue of Section 120-B or 147 IPC not being directly involved in any terrorist or disruptive act and those who were found possessing incriminating material. While the categorisations of the judgement may themselves be questionable, even the judgement notes that those who are directly involved in terrorist acts under Section 3 TADA, may be entitiled to grant of bail if they have been in prison for five years or more, and their trial is not likely to be completed within the next six months. The only exception to this rule is when the Court concludes that the accused’s antecedents are such that releasing them may be harmful to the complainant, their family or to witnesses. 

This signifies that even the dictum of Shaheen Welfare Assn. permits an alleged ‘mastermind’ who has committed terrorist acts to be granted bail under Article 21, in cases of prolonged custody. This follows because the violation of Article 21 rights arising from prolonged incarceration with no likelihood of completion to trial affects all accused equally irrespective of the role or nature of their involvement in the alleged prosecution case. Thus, the SC order creates an irrelevant test based on the role of the accused to selectively decide who should be granted bail without any analysis of whether the accused will actually tamper with evidence, influence witnesses or abscond from trial. 

Some Concluding Thoughts 

The Order allows Umar Khalid and Sharjeel Imam to seek bail again after the expiry of a period of one year from the date of the order, or upon completion of examination of the protected witnesses relied upon by the prosecution. This direction reflects the approach of the Court when it in an earlier portion of the judgement notes [Para 50]: 

The Court must also bear in mind that it is not confined to a binary choice between continued custody and unconditional release.Where delay becomes a matter of constitutional concern, appropriate directions for expeditious trial, prioritisation of witnesses, or periodic review of progress may be issued. Such measures are constitutionally significant responses that address the vice of delay while respecting the statutory framework. The liberty to renew a prayer for bail upon continued stagnation may also be preserved.

The issue with such directions is that they fundamentally miss the point of invoking Article 21 for seeking bail. An accused’s right under Article 21 is violated due to prolonged incarceration already suffered, and if there is no likelihood of trial finishing. Looking at only the latter without any consideration for the prolonged incarceration, leaves the accused at the mercy of the Prosecution and the Trial Court. Measures for expediting trials, prioritising witnesses may be relevant but cannot completely remedy the suffering caused by prolonged incarceration, since these directions may not actually result in movement, let alone completion of the trial. In the present case, the order provides for a direction for renewal of bail. But charges are yet to be framed in the present case, and thus, it is extremely unlikely that the examination of protected witnesses will take place. Why then should the accused suffer detention for an additional year?  There is no answer.

The Order, thus adds to the already problematic jurisprudence of bail in UAPA cases, like Watali and Gurvinder Singh by mixing two independent grounds, by penalising the accused for exercising their fair trial rights and giving the state full authority to ascribe anyone with an ‘architectural role’ in an offence to deny them bail. Whether it will turn out to be the outlier, or the norm in the sea of inconsistent decisions on bail in UAPA, only time will tell.

[This is a guest post by Hany Babu and Surendra Gadling, who have been detained in prison as “undertrials” since 2020 and 2018, respectively. This piece is being published here simultaneously with The Proof of Guilt blog.]

For previous work by the authors on this blog, see “How Long is Too Long? – On the Maximum Period that an Undertrial Prisoner can be Detained” (13 October 2024) and “and “The Grammar of the Power to Arrest and Search under UAPA” (19 July 2025).

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Disclosure

The authors are both arraigned as accused under UAPA and are still in judicial custody and make no pretensions to being “unbiased” or “neutral” with respect to issues discussed herein. This, however, is not to imply that their position had been or would have been different had they not been charged under UAPA. 

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Acknowledgements

The authors wish to express their gratitude to their co-defendants for sharing the brunt of the Zahoor Watali judgement. The indebtedness of the primary author to Vernon Gonsalves, who all but co-authored this article, cannot be adequately expressed. The germs of this article must have been sown while they were confined together in a quarantine barrack amidst pathogens more lethal. The part on “per incuriam” would have been impossible had Vernon not magnanimously shared his legal notes. None other than the authors are guilty for any of the shortcomings.

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The judgement in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 [“Watali] was delivered by the Supreme Court on 02.04.2019. Ever since then, procuring bail for a person accused of an offence under Chapters IV or VI of the Unlawful Activities (Prevention) Act, 1967 (UAPA) has been, to borrow an illustrative simile used by Abhinav Sekhri, like asking a person to swim after throwing him in deep water with both his hands tied behind him. Subsequent to this, a Three-Judge Bench of the Supreme Court delivered another judgement on 01.02.2021 concerning the jurisprudence of bail under UAPA – more specifically with respect to the question of the interplay of the right to speedy trial and Section 43-D(5) of UAPA (i.e. the restrictive bail clause) – in the case of Union of India v. KA Najeeb AIR 2021 SC 712 [“Najeeb”].

Akin to the Frostian roads that diverge, these two landmark judgements take different, though not contradictory, approaches to the issue at hand. As the Delhi High Court observed, Najeeb “lays down the constitutional approach arising from Article 21, whereas Watali (supra) explains the statutory approach arising out of Section 4-3(D)(5) of UAPA” (para 21 of Mohamad Hakim v. State (NCT of Delhi) 2021 SCC Online Del 4623. Najeeb harmonizes “the restriction under a statute as well as the powers exercisable under Constitutional Jurisdiction” by holding that 

“… at the commencement of proceedings, courts are expected to appreciate the legislative position against grant of bail but the rigours of such provision melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence…” (para 18 of Najeeb)

Thus, the settled position of law at present is that the restriction on grant of bail will hold at the initial stages, but as time progresses the statutory restrictions, which “draw this justification on the premise that trial in such cases would be concluded expeditiously” melt down as observed by the Bombay High Court in Vinay Vivek Aranha v. Union of India and another, (BA 2641/2021). However, the attempt to harmonize these two divergent approaches, we argue, misses certain fundamental anomalies in Watali. 

Per Incuriam and Sub-Silentio

That a decision rendered in ignorance of a relevant statutory position is deemed to be per incuriam is a well-settled fact. It is also accepted that a decision reached per incuriam would “demand the decision of its precedent value” [Para 183 of AR Antulay v. RS Nayak (1988) 2 SCC 602)].

Similarly, a “decision passes sub-silentio when the particular point of law involved in the decision is not perceived by the court or present in its mind” [Salmond on Jurisprudence, 12th Ed., page 153, quoted in State of UP and Anr. v. Synthetics and Chemicals Ltd. & Anr. (1991 4 SCC 139 (Para 41)]. The “Supreme Court may not be said to declare the law on these subjects if the relevant provisions were not really present to its mind” [Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court (1980) 3 SCC 682)].

It is our contention that Watali is both per incuriam and sub-silentio in that on the one hand it ignores certain statutory provisions while on the other it overturns a finding of the impugned judgement of the Delhi High Court without referring to the statutory provision or providing any argument against the view taken by the High Court. 

Let us begin by quoting the Section 43-D(5) of UAPA in order to demonstrate our claims:

“Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapter IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” [Emphasis supplied]

Para 23 of Watali states:

“By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise.”

However, what Watali ignores is that Section 2(d) of UAPA defines the Court as follows:

2(d) “‘Court’ means a Criminal Court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 22 of the National Investigation Agency Act, 2008.”

That is to say, on a plain reading of Section 43-D(5) in conjunction with the definition of “Court” in Section 2(d) of the UAPA, it is clear that Section 43-D(5) is talking about the courts that have the jurisdiction to try the offences under the Act, and not the superior courts.

While moving the UA(P) Amendment Bill 2008 (which inserted the Section in question) in the Lok Sabha on December 17,2008, the Union Home Minister P Chidambaram stated:

“…This is one provision that I would like to draw your kind attention. We are saying that if on a perusal of the case diary or the report under Section 173 that is the final report or what we call the challan the court is of the opinion that there are reasonable grounds for believing that the accusation against a person is prima facie true, then and then alone can be bail be refused…. Again, the High Courts and the Supreme Court have ample powers and this does not, in any way bind the High Courts and the Supreme Court, they will apply mainly to the trial court.” [Lok Sabha Debates: Combined discussion on the Motion for Consideration of the National Investigation Agency Bill, 2008 and the Unlawful Activities (Prevention) Amendment Bill, 2008 (Bills Passed)… on 17 December 2008]

It may be noted that the Prevention of Terrorism Act, 2002 (POTA), after the repeal of which UAPA was recast as an anti-terrorism law and from which most of the anti-terrorism provision were imported to UAPA, did not make such a distinction between courts that have jurisdiction to try offences under the Act and other courts with respect to the power to grant bail. Neither do any of the other special laws that have similar restrictive bail clauses. Section 49(7) of POTA, the Section that restricts the power of the court to grant bail, refers to the “Court”, but there is no definition of “Court” in the Act. Section 2(f) of POTA defines only “Special Court”.

To be fair to Watali, no judgement of either the Supreme Court  or of any of the High Courts seems to have delved into the issue of the statutory restriction on the power of Constitutional Courts to grant bail. However, prior to Watali, courts have granted bail without demurring on the restriction on their powers to grant bail imposed by Section 43-D(5) of the Act. Thus in decisions delivered in 2016 and 2017 [in cases of Angela Harish Sontakke v. State of Maharashtra (2021) 3 SCC 723 and Sagar Jataram Gorkhe v. State of Maharashtra (2021) 3 SCC 725)], the Supreme Court granted bail without going into the restriction imposed by section 43-D(5). Post Watali, High Courts and the Supreme Court begin to act as though their hands are fettered by Section 43-D(5) UAPA in spite of the clear and unambiguous definition in the Act.

For instance, in Soma Kanti Sen v. State of Maharashtra & Anr. (Cr.A. No. 2595/2023), the second supplementary chargesheet was filed after the trial court rejected the bail application, and the High Court, while sitting on appeal, directed the appellant to approach the trial court as it was the appropriate forum that should first appreciate the (new) evidence. The Supreme Court in appeal against the High Court order held that while the High Court was right in its position that the trial court was the first forum to appreciate the evidence, it also had every right to appreciate the evidence as the appellate body. It was further held that as the Supreme Court was sitting on appeal, “the same appellant jurisdiction which vested in the High Court will vest in the Supreme Court” (para 15). Thereafter, while examining the case for bail on merit, the Apex Court does not clarify that it is not bound by Section 43-D(5) of UAPA, but goes on to examine whether offences under Chapters IV and VI UAPA are applicable to the facts, as the restriction under Section 43-D(5) kicks in only in case of such offences. That is to say, the whole exercise is undertaken under the assumption that Section 43-D(5) construes the powers of the Supreme Court to grant bail on merit. 

No doubt, courts have been categorical in holding that statutory restrictions cannot nullify constitutional powers. Therefore, it is well settled that the right to speedy trial (recognised as a facet of Article 21 of the Constitution) will override the statutory restriction imposed by Section 43-D(5) in case of long incarceration. The irony, however, is that the Statute itself imposed no such restriction. Just as Section 437 of the Code of Criminal Procedure, 1973 / Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 imposes a restriction on the powers of a Magistrate in the case of offences punishable with death or imprisonment for life if there are reasonable grounds for believing that the person is guilty of such offence, Section 43-D(5) of UAPA imposes a restriction on the powers of the trial court and not of the High Court and Supreme Court. 

In fact, the question of the exclusion of the jurisdiction of the superior courts by legislation was one of the issues before a Constitutional Bench of the Supreme Court in the context of Section 25 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (restricting) the power of the High Court to entertain petitions under Article 226 of the Constitution) in Kartar Singh v. State of Punjab (1994) 3 SCC 569. The Constitution Bench held that the power of the Constitutional Court, which is on a higher pedestal, cannot be divested under a statute albeit with a cautioning that such power should be undertaken only in rare and exceptional cases. 

While interpreting the proviso to Section 43-D(5), Watali says “the totality of the material gathered by the investigation agency and presented along with the report and including the case diary, is required to be reckoned…” (Para 27, emphasis supplied). When the Statute expressly uses the disjunction ‘or’ in the Section (“case diary or the report made under section 173 of the Code”), Watali changes the connecting word to the conjunctive ‘and’. Admittedly, ‘or’ can be read in certain contexts. However, there has to be a reasoning given for such an interpretation, especially since the impugned High Court judgement (supra) has offered the following reasoning:

“34… (iii)…what the trial Court will peruse is the case diary ‘or’ the chargesheet under S.173 CrPC. At a stage prior to the filing of the charge sheet, the case diary can be looked into by the trial court to find out the progress of the investigation and about the material gathered against the accused persons. The charge sheet is the culmination of the analysis of the investigation officer (IO) of all the material gathered and reflects his opinion about the guilt of the accused. Although it is argued by Mr. Luthra that the trial court could peruse both the case diary as well as the charge sheet, the legislative intent is clear that once a charge-sheet has been filed, the trial court will look to the charge-sheet as it is the expression of opinion formed by the Investigation Officer (‘IO’) after analyzing the evidence that has been gathered, all of which ought to have been referred to in the case diary.”

Thus, when the statute uses ‘or’ and the impugned decision makes a reasoned argument for interpreting it as ‘or’, and not as ‘and’, Watali gives no reasoning for arriving at a decision to the contrary. In fact, it cannot even be said that Watali arrives at a different finding. It just appears that the Court is unmindful of the difference – a classic case of sub-silentio. 

The Loss of Reasonableness

What is hailed as Watali’s most significant contribution to bail jurisprudence in UAPA, which perhaps has inflicted the biggest dent on the rights of the accused by prolonging incarceration, is its interpretation of what it means when Section 43-D(5) says that the Court shall not release the accused person on bail if it “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” [Emphasis supplied]

It may be noted that the particular formulation of the restrictive bail clause in UAPA (which requires the court to find reasonable grounds for believing that the accusation is prima facie true) is different from restrictive bail clauses in other special statutes like Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Section 45(1) of the Prevention of Money Laundering Act, 2002 (PMLA), or even Section 49(7) of the repealed POTA, where the requirement is for the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. Certain decisions like Shamil Saquib Nachan 2013 ALL MR (Cr.) 2273 have held that there is “no basic difference in the practical application of these provisions in spite of the difference in the phraseology” (para 27). We shall not engage in a comparison of the restrictive bail clauses of different statutes, but shall show that Watali has not appreciated the restrictive bail clause of UAPA in its right perspective. 

The essence of Watali’s exegesis is captured in the passage quoted below:

“23. …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 the accused ‘not guilty of such offence’ as required under the other special enactments. In any case the degree of satisfaction to be recorded by the court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.” [Emphasis supplied]

The line of reasoning cannot be more clearly expressed than this. A very strong suspicious framing of charge; and that very strong suspicion leads to the assumption that “reasonable grounds” exist to believe that the accusation is true. 

Abhinav Sekhri in a study of the restrictive bail regimes notes that when the clause restricting the powers of the Magistrate to grant bail in cognizable offences was first introduced in the Criminal Procedure Code of 1898, the “material which formed the basis of applying the test [of reasonable grounds] was fundamentally different” (“Jail is not the rule –  A history of restrictive bail regimes”, March 4, 2024, “Proof of Guilt”). The committal hearings under Section 206 of the 1898 Code ensured that the prosecution witnesses were examined on oath and subjected to cross examination before a Magistrate was to form an opinion about the existence of reasonable grounds. When committal hearings were done away with following the 1973 Amendment of the Code, the same exercise of arriving at a finding of reasonable grounds came to be based on “unsigned unsworn statements by the police officers which the law itself declares ought not to be used as substantive evidence”. Thus, Sekhri argues, a “jurisprudence of suspicion” came to dominate bail hearings. 

Watali not only cements the “jurisprudence of suspicion,” but equates the degree of satisfaction required to reject bail to the level of the one necessary to frame charge, or even lower as we shall show. The significant difference in the language used with respect to framing of charge in Sections 228 and 240 of CrPC and Section 43-D(5) of UAPA seems to have escaped the learned judges. The former says framing of charge is to be done if the Magistrate/Judge “is of opinion that there is ground for presuming that the accused has committed an offence…” while the latter requires the Court to have “the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” That is to say, there are two crucial differences between both: (i) The latter qualified “grounds” with “reasonable” while the former has no such qualification, and (ii) the former talks about “presuming”  while the latter is about “believing”.

“Reasonable” is defined as “fair, practical and sensible” and “acceptable and appropriate in a particular situation” (Oxford Advanced Learner’s Dictionary of Current English, 9th Ed.). The phrase “reasonable grounds” occurs in many penal statutes, and there have been many judicial pronouncements on its import. Both in Union of India v. Shiv Shankar Kesari (2007) 7 SCC 798 with regard to Section 37(1)(b)(ii) of the NDPS Act and in Chenna Boyanna Krishna Yadav v. State of Maharashtra (2007) 1 SCC 292 in the context of Section 21(4) of MCOCA, the Supreme Court has held that reasonable grounds “means something more than prima facie ground” (Para 7 of the former and Para 13 of the latter).

“To presume something” in its plain meaning is “to suppose that something is true although you do not have proof” or “to accept that something is true until it is shown not to be true” (Oxford, supra). Believing requires a more degree of certainty. The dictionary meaning is :to think something is true or possible” or “to have an opinion” that something is true. The distinction should be clear if we think of presumption of innocence. An accused is only presumed to be innocent, not believed.

A careful reading of Watali would reveal that it is the total disregard of the qualification “reasonable” that leads to the lowering of the bar for finding the accusation to be prima facie true. While the prima facie test is expounded in several paragraphs, not a single drop of ink is spent on understanding the import of what counts as “reasonable grounds” in Watali. It is our contention that without applying the standard of reasonableness, the test to determine whether the accusation is prima facie true becomes nothing more than an exercise to establish a “prima facie case”, which is defined as “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted” [Anees v. State Government of NCT, 2024 Cri LJ, para 49]. Or in other words, it means that “a legal claim has sufficient evidence to proceed to trial or judgement” (ibid). If there is no prima facie evidence, the initial claim is dismissed. 

At the core of Watali’s reasoning is also the principle that “the issue of admissibility and credibility of the material and evidence presented by the investigation agency would be a matter for trial” (para 52). What persuades the learned judges to accept this line of argument is nothing more than the “force of the learned Attorney General” (ibid). A pertinent question is whether reasonable grounds for believing something is true can be founded on material that is neither credible nor admissible. Watali does note that Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 says

“46. …the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgement of conviction…”

However, since the only operative expression for Watali is “prima facie true”, and since the Attorney General makes forceful arguments, Watali is swayed to accept documents presented by the investigation officer as it is. 

It may be noted that more recently in Arvind Kejriwal v. Directorate of Enforcement 2024 Cri LJ 3531 the Supreme Court while dealing with bail under PMLA held that in the context of considering bail application, “[a]ll material and evidence that can be lead in the trial and admissible, whether relied on by the prosecution or not and can be examined” (para 46) as:

“41. …Guilt can only be established on admissible evidence to be led before the court, and cannot be based on inadmissible evidence…”

The same judgement also noted that the parameters of stipulation relevant at the time of framing of charge will not apply when the issue is of grant or denial of bail (para 46).

When all that is required of the court is to look at the contents of the documents or the evidence presented by the investigation officer and take them into account as it is on the basis of broad probabilities regarding the involvement, the accused in the commission of the alleged offence as outlined in paras 24 and 27 of the judgement, the degree of satisfaction required is nothing more than establishing a prima facie case. This is evident in a more recent decision of the Supreme Court [Union of India v. Barkathullah etc.  2024 Cri LJ 3183].

The legal dictum while dealing with stringent laws have always been “graver the offence, greater should be the care taken to see that the offence must strictly fall within the four corners of the Act” [Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. AIR 1994 SC 2623 (Para 14)]. Some of the High Court decisions prior to Watali have been more circumspect in applying the prima facie test. The Bombay High Court in Shamil Saquib Nachan (supra) did acknowledge that “judging the existence of a prima facie case at the stage of bail would not be the same as judging the existence of a prima facie case for proceeding against an accused for framing a charge” (para 27). The High Court goes on to reiterate: 

“28. …It is too obvious that an accused would never be required to put forth a stronger case for bail, than would be required for discharge. The tests that are applied at the time of bail cannot be as rigorous as are applied while considering the discharge of an accused from a particular case.”

In what is perhaps the most brilliant exposition of Section 43-D(5) with respect to the question of discharge, a Full Bench of the Guwahati High Court holds as follows in Rajen Boro & Ors. v. NIA & Ors. MANU/GH/0420/2016:

“26. …if there is a strong suspicion about the culpability of the accused, that would be sufficient for the court to frame charge against the accused under 228 CrPC. However, while considering bail of a person arrested on an accusation of having committed an offence under Chapters IV and VI of the ULAP Act, the Court must not only form an opinion that the accusation against the accused in prima facie true but such opinion has to be based on reasonable grounds, which have been explained to mean something more than prima facie grounds, contemplating substantial probable causes for believing that the accused is guilty of the accusation. Thus, the standard of scrutiny in both the fields are different. While there is strong suspicion at the stage of framing of charge, on the other hand, while considering bail under section 43(D)(5), it is something more than prima facie grounds for believing that the accused is guilty of the alleged offence. In other words, the standard of scrutiny to determine prima facie correctness of the accusation against the accused while considering bail under Section 43D(5) is much higher than at the stage of framing charge.”

Thus, while both the High Courts have been arguing for raising the standard required for holding that the accusation is prima facie true, Watali traverses a diametrically opposite direction without offering any valid argument and in complete disregard of the express wording of the Statute. 

Watali also seems to be oblivious of the discretionary power of courts in bail jurisprudence and operates as though the courts were denuded of all such powers although it is professed that it takes guidance from the judgement of a three-judge bench of the Supreme Court, which, while interpreting the restrictive bail clause of MCOCA, warned that the “restraint of the power of the court to grant bail should not be pushed too far” [(Para 38 of Ranjitsing, supra). Watali seems to be impervious to the warning Rajen Boro (supra) was also categorical in that it cannot be “overlooked that grant of bail is a discretionary power conferred upon the Court” (para 30).

Thus, we see that while Watali ignores both statutory provisions and binding precedents, Najeeb steps in with the constitutional safeguard against long incarceration. However, both the judgments seem not to have taken into consideration that the statutory restriction does not bind constitutional courts, and, therefore, they are not constrained by the “prima facie test” spelt out in Section 43-D(5) UAPA while deciding bail applications on merit. Even the attempt in Vernon v. State of Maharashtra and Anr. 2023 All MR (Cri) 3082 SC to undertake a “surface analysis of probative value of the evidence” and the stipulation that the probative value should satisfy the court, though significant, only operates within the constraints of Section 43-D(5) of UAPA (para 36 of Vernon). The approach in Vernon may be a step towards acknowledging that the prima facie test adopted by Watali is flawed and inadequate unless conducted in the light of reasonable grounds. Long and ominous are, still, the shadows cast by Watali.

[This is a guest post by Marushka Kenia.]

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In the 21^st century, if one were to list down some of the most draconian laws across various democratic jurisdictions, UAPA would be one of the first statutes to be included. In a seemingly rare stroke of pragmatism, or even luck, when many perceive bail to be an exception under UAPA, the Supreme Court of India on 18^th July 2024 granted bail to an accused in the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v State of Uttar Pradesh 2024 INSC 534.

The present judgement impacts the jurisprudence in two ways: (i) it does not whittle down the force of the 2-judge decision of the Apex Court in National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 but rather excludes of its applicability to the limited extent of the case at hand (further discussed in more detail in this post by Abhinav Sekhri) and (ii) it recognises and reiterates the importance of speedy trials to meaningfully enjoy the liberty enshrined within Article 21 of the Constitution as a principle that guides the court’s decision to enlarge the petitioner on bail (seen in many other cases as well). Through this essay, I discuss (i) the reasoning that led to the court’s decision in Sheikh Javed Iqbal, focusing on the overriding effect constitutional considerations must have despite restrictive penal provisions of statutes, and (ii) a response to the shortcomings that Abhinav Sekhri recognises, by expanding upon how the current standard of assessment of prolonged incarceration cannot justify creating an arbitrary bright line to grant bail.

The Twin Test 

To recap the test for bail under UAPA, Section 43D (5) of UAPA is a non-obstante clause overriding all the provisions in the CrPC that states that an accused under the Special Act would be released only when a two-pronged test is satisfied as follows:

• Whether there are reasonable grounds to believe a prima facie case is made out against the accused on perusal of the case diary and report; and
• Whether the accused can be enlarged on bail following the satisfaction of the general “tripod test” of flight-risk, tampering evidence and influencing witnesses.

The most important consideration is the accused’s inability to bring in their own evidence to contradict the case made out by the prosecution, at the stage of bail. Thus, the only way to do the same is to find internal inconsistencies, if any, within the chargesheet and FIR made under S.173, CrPC. This dims the likelihood of an already restrictive court to grant bail.

Constitutional Considerations: A Restatement

The Appellant/accused was arrested in 2015 after an FIR was registered against him due to alleged recovery of approximately 26 lakh rupees of counterfeit currency notes from the possession of the appellant. The police claimed that the accused admitted to engaging in supplying counterfeit Indian currency notes in Nepal. A chargesheet was filed against the accused under sections 489B and 489C, IPC along with a supplementary chargesheet under Section 16, UAPA. Subsequently, in 2023, the High Court rejected the plea for bail under Section 439, CrPC since the charges levied against the accused were grave. The Appellant moved the Supreme Court in appeal against this impugned order of the UP High Court.

Often and as can be seen recently, in the Watali judgement and another Division Bench judgement of the SC, Gurwinder Singh v State of Punjab & Another 2024 INSC 92 , the courts are hesitant to give bail merely on a rights-based ground and often muddle the assessment of the Article 21 claim by reiterating the prima facie case meted out against the accused as a justification to continue the deprivation. However, the inconsistency in this approach is in the conflation of an overriding effect of the bail provisions under UAPA with respect to the CrPC provisions on the one hand, and the Constitution on the other. An Article 21 consideration is independent of the assessment under Section 43D (5) and should be adjudged on its own merits. As Justice Bhuyan articulated in para 32 of the Javed Ansari judgement:

Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence.

The SC Division Bench in the present case took into consideration the 9 years that the appellant had been incarcerated for, and the fact that merely two witnesses had been examined since the beginning of the trial. In this manner, it is important to remember that a restrictive penal provision within a special statute cannot be given an effect that would dilute the enjoyment of the right to liberty enshrined in the Constitution. A suspension of its applicability in unnecessary protraction would mean a complete disregard to constitutional superiority and the rule of law.

The court in the present case reiterated the important case of Union of India v. K.A. Najeeb (2021) 3 SCC 713 , a 3-judge bench judgement (binding on the present Bench). In this case, the court dismissed an appeal against granting bail on the grounds that the incarceration period was too long, too many witnesses were still left to be examined and many of the co-accused who had already been convicted had not been punished for a sentence longer than eight years. An important paragraph in the Najeeb judgement on the fundamental rights of under-trial prisoners is worth noting.

18…. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against the grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

How long is too long?

While the court did recognise fundamental rights of speedy trial and liberty of under-trial prisoners, in an approach similar to KA Najeeb, the court in the present case also continued to uphold the decision in Watali to the extent that the High Court therein had conducted a supposed mini-trial and thus the Supreme Court had to cancel the bail on grounds of procedural impropriety, potentially prejudicing the trial itself (reiterating  Abhinav Sekhri’s argument that the Watali judgement had nothing to do with prolonged trials and delay). This judgement still leaves the lacuna wide open for courts to decide what are the limited bounds in a prima facie assessment that the court cannot cross and what are the limited grounds that the accused can raise in his defence.

Another question, more relevant to the reasoning of this court in the Sheikh Javed Iqbal case, is how long would be considered too long to grant or deny bail to an accused under UAPA when a rights-based claim is put forth by the accused and at what point is the bright line beyond which a claim based on rights becomes automatically a part of the consideration. In Gurwinder Singh case, the court distinguished the case from the KA Najeeb case on the grounds that the accused Najeeb had undergone 5 years of incarceration when most co-accused had been sentenced to 8 years, and that 22 witnesses had been examined in Gurwinder’s case, which indicated that the trial was not snail-paced. Thus, to grant bail based on right to liberty, the assessment of delay in trial was relative to the deferential treatment in similar cases and what the courts deem as prolonged. It depended more on the charges alleged and the nuumber of witnesses examined rather than the strength of evidence and the probative value of the same.

In a balancing approach, the courts often afford unwarranted consideration to the gravity of the offence alleged and the punishment that would be imposed on conviction, rather than the duration of the deprivation of liberty in and of itself. As is iterated in this post, constitutionalism cannot step in as the tool of last resort to prevent further depravation of the accused’s liberties and act as a bright line to finally justify the need for bail. The liberty of the accused is presupposed as the rule of the law that must be upheld at every instance, limited only by certain restrictions or procedure that is established by law. However, if the procedure allows for arbitrary allegations to become prima facie seemingly true in balancing the prolonged incarceration period against the plea for bail, the liberties under the Constitution are no more the primary consideration in adjudicating a case but rather the last!

Conclusion

This judgement of the Supreme Court must be considered another small step in the right direction of bringing rights consideration to the forefront in bail hearings. However, they must not return as mere shadows, that accompany the court as the ground of last resort in its attempt to justify granting bail but rather as a consideration that must weigh the court’s mind at every step of the way. The prevention of curtailment of liberty must be of paramount importance, no matter the degree of crime alleged or the punishment it warrants under the special statute it falls under. The case of Umar Khalid’s continued incarceration and many others under the UAPA is a reminder of the leaps and bounds of progress that is still be made by the Indian courts in bail jurisprudence.