BAIL under UAPA: A tough task

Unlawful Activities Prevention Act, (UAPA) faced severe criticism due to rampant misuse, vague definition of unlawful activities, and terrorist act.  Among several other critical provisions of UAPA, the recent death of a student activist after  years in jail without trial  exposed the inadequacies of law, especially related to bail under UAPA.  Bail is an indispensable part of criminal law system and use of judicial discretion in granting bail is required by almost every law in the world.  Although some laws, which deal with organized criminals, heinous and serious crimes such as terrorism curtails the ambit of judicial discretion in such cases. UAPA also envisages such provisions which are repeatedly questioned and severely criticized in the current scenario.

Law of Bail

Both regular bail and bail by default like CrPC are available under UAPA with some alterations under section 43 D of UAPA. Regular Bail in UAPA can be granted by a competent magistrate under section 437 CrPC and by the high court or district and sessions court under section 439 of CrPC. The provisions for default bail is also available under section 167(2) CrPC read with section 43D(2) of UAPA, after 30 days of police custody and 90 days of judicial custody, subjected to delay in filing of charge-sheet.

UAPA does not provide any specific conditions to be satisfied to grant bail. However, Punjab & Haryana High court in case of Harnarain Singh Sheoji singh listed factors and supreme court summarised the same in State through CBI v. Amaramani Tripathy and listed factors to be considered while deciding upon bail applications which includes

• enormity of the charge; the nature of the accusation;
• the severity of the punishment ;
• the nature of the evidence in support of the accusation;
• the danger of the applicant absconding;
• the danger of witnesses being tampered with;
• the protracted nature of the trial; and
• the health, age, and sex of the person accused.

Since bail under UAPA is granted through provisions of CrPC, hence factors considered, and procedure adopted for granting bail in UAPA is same as that of other offences in India. The difference is the condition under which bail shall be refused in case of terrorist acts, although in case of unlawful activities, act does not provide any specific rule to deny bail, hence provisions of CrPC are applicable in case of unlawful activities.  

Under CrPC bail can be refused if the court considers it necessary to do so, hence scope of judicial discretion is very wide. Contrary to CrPC, proviso to section 43D(5) of UAPA limits judicial discretion by denying bail if the court is of opinion that reasonable grounds exist for believing that accusations against accused are prima-facie true. Earlier repealed and widely criticized TADA and POTA also had similar provisions related to bail. Although such provisions were inserted with an objective to enact a law against terrorism where terrorists can be kept under custody for longer period of time, but our past experiences with TADA and POTA caution us against such approach Moreover, UAPA does not exclusively deal with hardcore terrorists, it is also rampantly imposed over accused of riots, protestors, student leaders and social activists, which was essentially not the idea behind enactment of this law, but the vague and wide definition of terrorist act allows government to do so.

Curious case of Section 43D (5)

The section 43D(5) of UAPA is only applicable to offences punishable under chapter IV and VI of the act i.e offences related to terrorist acts and terrorist organizations. Section 43D(5) has a proviso which basically explains  condition when bail shall be denied, i.e. if reasonable grounds exist for accusations to be prima-facie true, and such decision shall be based on chargesheet or case diary. Investigation is a time taking exercise, hence chargesheet is filed months after arrest, till then case diary is the basis of refusing or granting bail, and usually evidences at this stage can’t be assessed based on merits and demerits, which is not problematic in normal cases because in normal cases bail is rule and burden of proof on prosecution is heavier, but UAPA punishes for gravest possible offence against state, where ideally a state should be shouldered with very heavy burden of proof even to prosecute someone, which is not the case under UAPA.  Hence, aforementioned provisions serve more to the mighty state than the accused behind the bars, which is neither just nor fair in criminal law.

The second part of proviso explains the burden over prosecution, the prosecution had to prove that reasonable grounds exist for accusations believed to be prima facie true. Reasonable grounds differ from case to case, there is no straight-jacket formula to define and identify the reasonable grounds. Supreme court in Jayant Kumar Ghosh v. State of Assam held that reasonable grounds should contemplate a probable case for believing that the accused is guilty of committing such offence. Hence, reasonable grounds need something more than mere apprehension.

The story of “prima facie true” case

The phrase prima-facie true consists of two words ‘true’ and ‘prima-facie,’ the term ‘prima-facie ‘is usually not used in legislations. The acts itself do not define ‘prima-facie true’, the apex court in the case of Martin Burn Ltd. v. R.N. Banerjee defined the term ‘prima-facie true’ in following words While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion, in question, and not whether that was the only conclusion, which could be arrived at on that evidence. Hence, if evidences collected by investigation agency signals towards any possibility of accusations to be true, then the accused loses his right to bail, which is usually a case.

The proviso to section 43D does not require a positive satisfaction by the court that, the case against the accused is true. Supreme Court in National Investigation Agency vs. Zahoor Ahmad Shah Watali explained the approach of court while considering the evidence and held that court is required to examine the materials collected assuming to be true, which means the court is not allowed to weigh merits and demerits of evidences at the stage of bail. Hence, the only issue that court is required to adjudicate is whether the evidences suggest any possibility of charges to be true. If such possibility exists, then the application for bail is ought to be rejected by the court.

If the court found accusations to be prima-facie true than, court is not required to consider any other plea or reason presented before it. The only remedy left to the petitioner is in the form of appeal to the higher courts.

Conclusion

The principle ‘Bail is rule, denial is exception’ is law of bail in India, UAPA reverses the aforementioned principle. Courts are forced to be reluctant while granting bail, due to the presence of section 43 D. A person can be left in the jail, on a mere possibility of him involved in such crime. The test of prima facie true is unjustly inclined against accused and burden of proof over prosecution do not match the gravity of offence. Provisions like section 43 D may be need of hour in fight against terrorism, but the need for safety net against the misdeeds of investigation agencies is also inevitable to ensure the right to life of individuals. Hence, the burden of proof on prosecution should be heavy enough to match gravity of charge and ambit of judicial discretion should be large enough to consider clearly, elaborately, and scientifically decided factors while granting or denying bail under UAPA. The repercussions of UAPA and risk assessment of accused should be kept in mind will deciding upon bail applications under UAPA.

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ABOUT THE AUTHOR

Ankit Yadav is a third year law student at Chanakya National Law university, Patna.  

In Content Picture Credit: Picpedia.org

Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.