Bail in terror cases must be rejected as a “rule” when courts have reasonable grounds to believe that the charges are prima facie true, the Supreme Court held on Thursday in a judgment that prescribes a “twin prong” test, severely narrowing the scope of bail in Unlawful Activities Prevention Act (UAPA).
According to a bench of justices MM Sundresh and Aravind Kumar, the conventional idea in bail jurisprudence that the discretion of courts must tilt in favour of the oft-quoted phrase — “bail is the rule, jail is the exception” — does not find any place while dealing with bail applications under UAPA. In such instances, the bench noted, courts are merely examining if there is justification to reject bail.
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It further underscored that the test for rejection of bail is quite plain under UAPA. “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 said.
It is only if the test for rejection of bail is not satisfied, the bench held, that courts would proceed to decide the bail application in accordance with the ‘tripod test’ or ‘triple test’ — whether the accused is a flight risk, can influence witnesses and tamper with evidence.
Citing Section 43D(5) of UAPA, the top court noted that the provision puts a complete embargo on the powers of the special court to release an accused on bail if there are reasonable grounds to believe that the allegations against the accused are prima facie true.
“The ‘exercise’ of the general power to grant bail under the UAPA is severely restrictive in scope,” said the court, adding UAPA provisions suggest that the intention of the legislature is to make bail the exception and jail the rule.
The judgment added: “The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAPA, the courts are merely examining if there is justification to reject bail. The ‘justifications’ must be searched from the case diary and the final report submitted before the special court.”
Discussing the “twin-prong test” while dealing with a bail plea of a man charged under UAPA, the bench noted that the question of ascertaining whether the accused is a flight risk or not; or whether he can influence witnesses and tamper with evidence will not even come up if he fails the first test and the court has prima facie satisfaction of his guilt.
“The question of entering the ‘second test’of the inquiry will not arise if the ‘first test’ is satisfied. And merely because the first test is not satisfied, that does not mean that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the ‘tripod test’…” it held.
In its judgment, the two-judge bench relied on a coordinate bench’s decision in NIA Vs Zahoor Ahmad Shah Watali in 2019. The Watali judgment held that an elaborate examination or dissection of the evidence is not needed at the stage of whether bail is to be granted or not. Instead, courts are expected to record a finding based on broad probabilities regarding the accused’s involvement in the commission of the stated offence or otherwise, said this judgment.
Banking on the Watali judgment, the court on Thursday assessed whether “the test for rejection of bail is satisfied” in the present case and eventually dismissed the plea of the man from Punjab for allegedly promoting the Khalistani terror movement.
The bench affirmed the March 2023 judgment of the Punjab & Haryana high court, refusing to grant bail to Gurwinder Singh, allegedly a member of organisation “Sikh for Justice”, who was arrested in October 2018. The organisation was banned in India in 2019 as an unlawful association.
Rejecting his bail plea, the bench noted that the material available on record indicates Singh’s involvement in furtherance of terrorist activities, backed by the members of the banned terrorist organisation, in exchange of large sum of money through different channels.
“Mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail,” it further said.
