Bail, The Exception & Jail, The Rule: Supreme Court Explains Test For Rejection Of Bail In UAPA Cases

The Supreme Court, in a judgment delivered recently, explained in detail the principles governing consideration of Bail Applications in cases under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

The Court dismissed the Appeal challenging the dismissal of the Bail Application by the Trial Court that was upheld by the High Court.

The Bench comprising Justice M. M. Sundresh and Justice Aravind Kumar observed, “in this background, the test for rejection of bail is quite plain. 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)”.

Senior Advocate Colin Gonsalves appeared for the Appellant and Additional Solicitor General Suryaprakash V. Raju with Deputy Advocate General Vivek Jain appeared for the State.

The appeal challenged the decision of the High Court of Punjab and Haryana, which upheld the rejection of bail for Gurwinder Singh in a case involving charges under various sections of the Indian Penal Code, 1860 (IPC), UAPA and Arms Act, 1959. The investigation revealed the accused's alleged involvement in receiving funds from a banned terrorist organization and attempting to procure weapons for terrorist activities. The Trial Court dismissed Gurwinder Singh's bail application based on the seriousness of the charges and the absence of examination of protected witnesses.

The Court noted that Section 43D(5) of the UAPA alters the usual bail provisions for offences under Chapter IV and Chapter VI of the UAP Act. It mandates that a Special Court cannot grant bail without giving the Public Prosecutor a chance to be heard. Additionally, if the court, upon reviewing the case diary or the report under Section 173 of the Code of Criminal Procedure, 1973 (CrPC) finds reasonable grounds to believe the accusations are prima facie true, bail must be denied.

The Bench noted that this provision sets the UAP Act apart and emphasized bail as the exception, with courts required to carefully assess bail applications using a low prima facie standard. If accusations are deemed prima facie true, bail should be refused, and only if this test is not met would courts consider other factors like flight risk or tampering with evidence. These bail restrictions under Section 43D(5) are supplementary to those under the CrPC or any other applicable law.

“On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test :

1) Whether the test for rejection of the bail is satisfied?

1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offence under Chapter IV or VI of the UAP Act

1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;

2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)?”, the Bench observed.

The Court further added, “on a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself :

2.1 Whether the accused is a flight risk?

2.2. Whether there is apprehension of the accused tampering with the evidence?

2.3 Whether there is apprehension of accused influencing witnesses?”

The Apex Court emphasized that If the court determines that the accused meets the criteria of the "first test," which involves assessing flight risk, evidence tampering, and witness influence, then the "second test" need not be considered. However, even if the first test is met, it does not automatically entitle the accused to bail. The accused must still demonstrate that they pass the "tripod test," which likely involves additional considerations beyond those of the first test.

The court also referred to guidelines as laid down by Supreme Court in Watali’s [NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 ] Case –

1. Meaning of ‘Prima facie true’ [para 23]: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. 
2. Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and PostCharges – Compared [para 23]: Once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that 15 despite the framing of charge, the materials presented along with the chargesheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.
3. Reasoning, necessary but no detailed evaluation of evidence [para 24]: The exercise to be undertaken by the Court at this stage–of giving reasons for grant or non-grant of bail–is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.
4. Record a finding on broad probabilities, not based on proof beyond doubt [para 24]: “The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.”
5. Duration of the limitation under Section 43D(5) [para 26]: The special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof.
6. Material on record must be analysed as a ‘whole’; no piecemeal analysis [para 27]: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.
7. Contents of documents to be presumed as true [para 27]: The Court must look at the contents of the document and take such document into account as it is.
8. Admissibility of documents relied upon by Prosecution cannot be questioned [para 27]: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence…….In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. (Para 23-26)

The Court noted that the Appellants contested the denial of bail by the High Court and Special Court, arguing against reliance on disclosure statements. Accused No.3's statement implicated the Appellant in planning to purchase a weapon for retaliatory purposes. While the Appellant denied awareness of the plan, his statement admitted suggesting the weapon's source. The absence of the Appellant's name in the terror funding chart was noted, but the charges revealed his involvement in a terrorist group.

Therefore, bail wasn't warranted due to the prima facie evidence implicating the Appellant in terrorist activities.

Accordingly, the Court dismissed the Appeal.

Cause Title: Gurwinder Singh v State Of Punjab & Another (2024 INSC 92)

Appearance:

Appellant: Satya Mitra, Mugdha and Kamran Khawaja Advocates.

Respondent: Ajay Pal, Kanu Agarwal, Annam Venkatesh, Mayank Pandey, Arvind Kumar Sharma, Reeta Vasishta, Karan Sharma and Rishabh Sharma, Advocates.

Click here to read/download Judgment