The UAPA: Section 43D(5) and Bail

The first decision: the court may not test the material

National Investigation Agency v. Zahoor Ahmad Shah Watali, AIR 2019 SC 1734.

Facts. The respondent was accused of funding terrorist activities. The Special Court refused bail under section 43D(5). The High Court re-appreciated the entire evidence on record, determined the admissibility of certain items of evidence, overturned the Special Court's conclusion that there was a prima facie case, and granted bail.

Held. The bail was cancelled. The High Court had practically conducted a mini trial and determined the admissibility of evidence, which exceeded the limited scope of a bail petition. That was beyond the statutory mandate of a prima facie assessment under section 43D(5), it was premature, and it would possibly have prejudiced the trial itself.

What it decides in practice. At the bail stage the court takes the material in the case diary and the police report as it is. It does not ask whether a statement would be admissible at the trial, whether a document is proved, or whether the witnesses are credible. It asks only whether, taken at face value, the material discloses reasonable grounds for believing the accusation to be prima facie true.

That is a defensible rule about the function of a bail court. Its effect, given that the material is the prosecution's own, is that bail under this Act became very hard to get.

The second decision: the Constitution answers the delay

Union of India v. K.A. Najeeb, AIR 2021 SC 712.

Facts. The respondent was charged under provisions of the Penal Code, section 3 of the Explosive Substances Act 1908 and sections 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, arising out of an attack on a professor who had set an examination question considered objectionable. He absconded and was arrested later. The Special Court and the High Court had earlier held the section 43D(5) bar attracted. On a third application the High Court released him on bail, noting that the trial had not begun although he had been in custody for four years.

Held. The bail was upheld. The liberty guaranteed by Part III covers not only due procedure and fairness but also access to justice and a speedy trial; undertrials cannot indefinitely be detained pending trial; and once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period, courts would ordinarily be obliged to enlarge him on bail.

Held on Watali. That decision was distinguished as dealing with an entirely different factual matrix, in which the High Court had practically conducted a mini trial.

Held on the relation between statute and Constitution. The presence of statutory restrictions like section 43D(5) does not per se oust the ability of constitutional courts to grant bail on grounds of violation of Part III. The statutory restrictions and the powers exercisable under constitutional jurisdiction can be harmonised: at the commencement of proceedings the courts are expected to appreciate the legislative policy against bail, but the rigours of such provisions melt down where there is no likelihood of the trial being completed within a reasonable time.

Held, a comparison worth quoting. Section 43D(5) is comparatively less stringent than section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985, since the latter requires satisfaction both that the accused is prima facie not guilty and that he is unlikely to commit another offence while on bail, and section 43D(5) has no such pre-condition.

How the two decisions fit together

They are not in conflict, and an answer that says they are will be wrong.

Watali is about what the court may look at when it applies the statutory test. It may not weigh admissibility or credibility.

K.A. Najeeb is about when the statutory test stops governing. Where the trial has not begun after years of custody, the constitutional guarantee of a speedy trial operates independently of the section, and the court grants bail not by satisfying the section but despite it.

The practical rule for a bail application under this Act is therefore in two stages. First, take the material at face value and ask whether the accusation is prima facie true; if it is, the statutory bar applies. Second, ask whether the accused has already been in custody for a long period with no prospect of the trial concluding within a reasonable time; if he has, the rigours of the provision melt down and article 21 supplies the power to release him.

Why this belongs in a paper on national security

Because it is the modern form of the question the whole paper asks. Module I asks whether a person may be detained without trial on the executive's satisfaction, and answers that he may, subject to article 22. Module II asks whether a person charged with an offence may be held for years before the trial begins, and the answer of K.A. Najeeb is that he may not, because article 21 includes a speedy trial.

Notice the difference in the source of the safeguard. In preventive detention the safeguards are in the Constitution's own text, in article 22. Here there is no textual safeguard at all: section 43D(5) says what it says, and what limits it is a judicially developed content of article 21 traceable to Maneka Gandhi v. Union of India, AIR 1978 SC 597, and to the speedy trial cases. That is the whole distance travelled between [A.K. Gopalan and the Compartment Theory] and this chapter.

The criticism, and the answer

The criticism. A person charged under this Act is in substance detained without trial, but without any of article 22's protections: no grounds within five days, no Advisory Board within three months, no maximum period. The remand may run to a hundred and eighty days before a charge sheet, and the bail bar then operates on the charge sheet the investigation produced.

The answer. He is an accused, not a detenu. He has a charge, a trial, the ordinary rules of evidence including the exclusion of confessions to the police, an appeal, and the presumption of innocence at the trial. The bail bar is a restriction on interim liberty, not a determination of guilt.

The rejoinder. All of that is true and none of it helps a person who spends five years in custody and is then acquitted, which is why K.A. Najeeb matters and why the Commission's argument in [TADA in Practice, and the NHRC's Comments] about investigation, prosecution and delay is the argument that actually bites.

A worked example

An accused has been in custody for three years and four months under sections 18 and 20. The charge sheet was filed on the one hundred and seventy fifth day. Sixty of the two hundred prosecution witnesses have been examined. He applies for bail for the fourth time.

Does section 43D(5) apply? Yes; sections 18 and 20 are in Chapter IV.

What does the court look at? The case diary or the report under section 173, and it takes the material at face value; on Watali it may not assess admissibility or credibility.

If the accusation is prima facie true, is that the end? No. On K.A. Najeeb the court then asks whether there is any likelihood of the trial concluding within a reasonable time. With sixty of two hundred witnesses examined in three years, there is not.

On what does the court then act? On article 21, the statutory restriction not ousting the ability of constitutional courts to grant bail for a violation of Part III, the rigours of the provision melting down.

Would the answer be the same under the narcotics statute? Not necessarily. Section 37 of that Act requires satisfaction both that the accused is prima facie not guilty and that he is unlikely to commit another offence, which K.A. Najeeb itself describes as more stringent.

Was anticipatory bail ever available? No. Section 43D(4) excludes section 438 of the Code entirely.

What it does NOT mean

Prima facie true is not proof. The finding at the bail stage binds nobody at the trial.

K.A. Najeeb is not a general licence. It rests on a long incarceration together with no prospect of a timely trial, and both limbs are needed.

Watali was not overruled. It was distinguished on its facts.

Section 43D(5) is not the strictest bail provision in Indian law. Section 37 of the narcotics statute is stricter on the Supreme Court's own comparison.

Quick revision

• s.43D(5): the Public Prosecutor must be heard; and bail must be refused if the court, on the case diary or the s.173 report, is of opinion that there are reasonable grounds for believing the accusation is prima facie true.
• s.43D(4) excludes anticipatory bail; s.43D(2) allows remand to one hundred and eighty days.
• Contrast with TADA s.20(8) and POTA s.49(7), which asked whether the accused is not guilty.
• National Investigation Agency v. Zahoor Ahmad Shah Watali, AIR 2019 SC 1734: no mini trial, no assessment of admissibility, material taken at face value.
• Union of India v. K.A. Najeeb, AIR 2021 SC 712: article 21 includes access to justice and a speedy trial; statutory restrictions do not oust the constitutional courts' power to grant bail for a violation of Part III; the two can be harmonised, the rigours melting down where there is no likelihood of a timely trial; and s.43D(5) is less stringent than s.37 of the NDPS Act 1985.

Test yourself

1. State the bail bar in section 43D(5) exactly. That an accused under Chapters IV and VI shall not be released on bail 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, and in any case not without the Public Prosecutor being heard.

2. Why is the present formula harder in practice than TADA's? Because TADA required the court to consider whether there were reasonable grounds for believing the accused not guilty, which allowed it to weigh the strength of the material, whereas the present formula asks only whether the accusation taken at face value is prima facie true, so that the prosecution's own version governs.

3. What did Watali decide? That the High Court had practically conducted a mini trial by re-appreciating the evidence and deciding admissibility, which exceeded the limited scope of a bail petition and the statutory mandate of a prima facie assessment, was premature, and would possibly have prejudiced the trial.

4. What did K.A. Najeeb decide? That the liberty under Part III includes access to justice and a speedy trial, that undertrials cannot indefinitely be detained, that statutory restrictions like section 43D(5) do not oust the power of constitutional courts to grant bail for a violation of Part III, and that the rigours of such provisions melt down where there is no likelihood of the trial being completed within a reasonable time.

5. How do the two decisions work together in a single bail application? The court first applies the statutory test on the material taken at face value, as Watali requires; if the bar is attracted, it then asks whether the accused has suffered a significant incarceration with no prospect of a timely trial, in which case K.A. Najeeb allows it to grant bail under article 21.