Bail Under Special Statutes: The Twin Conditions

In one line

Ordinary law asks whether the accused will run or interfere; a special statute asks the court to form a view about his guilt before releasing him.

In the wording a student can write in an exam: the ordinary approach to bail is that bail is the rule and jail the exception, and the questions are whether the accused will abscond, tamper with evidence or influence witnesses. A special statute reverses the approach by requiring the court to be satisfied of something about the merits. Section 43D(5) of the Unlawful Activities (Prevention) Act 1967 provides that an accused shall not be released on bail if the court, on a perusal of the case diary or the report under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against him is prima facie true. Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985 goes further, requiring the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit an offence while on bail.

Section 43D of the UAPA, in its own words

Sub-section (4). Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act. That is the exclusion of anticipatory bail.

Sub-section (5). Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of the 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.

Sub-section (6). The restrictions on granting of bail specified in sub-section (5) are in addition to the restrictions under the Code or any other law for the time being in force.

Sub-section (7). Notwithstanding sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under the Act if he is not an Indian citizen and has entered the country unauthorisedly or illegally, except in very exceptional circumstances and for reasons to be recorded in writing.

The three grades of restriction

Reading the provisions against each other shows that they are not all equally severe, and saying so is worth marks.