The UAPA: Section 43D(5) and Bail

In one line

The provision does not say the accused must be shown to be innocent; it says he must not be released if the accusation looks true, and that is worse.

In the wording a student can write in an exam: section 43D(5) of the Unlawful Activities (Prevention) Act 1967 provides that no person accused of an offence under Chapters IV and VI shall be released on bail without the Public Prosecutor being heard, and that he shall not be released if the court, on a perusal of the case diary or the report made under section 173 of the Code, is of opinion that there are reasonable grounds for believing that the accusation against him is prima facie true. In National Investigation Agency v. Zahoor Ahmad Shah Watali, AIR 2019 SC 1734, the Supreme Court held that the court at the bail stage must take the material on record at face value and may not conduct a mini trial; and in Union of India v. K.A. Najeeb, AIR 2021 SC 712, it held that the statutory restriction does not oust the power of constitutional courts to grant bail where the trial is not likely to conclude in reasonable time and the accused has already suffered a long incarceration.

Reading the provision carefully

Three limbs, and students commonly conflate them.

The Public Prosecutor must be heard. That is the whole of the main part of sub-section (5).

The proviso is the bar. The accused shall not be released on bail if the court, on a perusal of the case diary or the report under section 173, is of opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

The material is limited. The court looks at the case diary or the police report. It is not conducting a trial on evidence.

Now set that beside its ancestors. TADA's section 20(8) and POTA's section 49(7) required the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty. Section 43D(5) requires it to refuse bail where the accusation is prima facie true.

The change reads like a relaxation and works as a tightening, and an LL.M. answer should be able to explain why. Under the older formula the court had to form a view about guilt, which meant it had to look at the strength of the material and could refuse to be satisfied where the material was thin. Under the present formula the court is forbidden to weigh the material at all: if the accusation, taken as it stands in the police papers, discloses a case, bail must be refused. The prosecution's own version becomes conclusive at the bail stage.