Anticipatory Bail Not Available For Offences Under UAPA Under Any Circumstance: Kerala High Court

The Kerala High Court on Friday held that exclusion of application of Section 438 CrPC to cases under the Unlawful Activities (Prevention) Act, 1967 is absolute and thus no application for anticipatory bail is permissible for offences punishable under the UAPA under any circumstances.

A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha added that if it were interpreted differently and anticipatory bail was allowed, it would create an absurd situation where accused individuals could get anticipatory bail unconditionally, while regular bail would be subject to specific conditions.

"If the scheme of the UAP Act is that no person accused of an offence punishable under Chapter IV and VI of the UAP Act shall be released on bail unless the twin conditions referred to in subsection (5) of Section 43D are satisfied, there cannot be any doubt that the Statute does not contemplate grant of anticipatory bail to accused under any circumstance whatsoever, for if the provision is interpreted to hold that the Statute does not bar absolutely the application of Section 438 of the Code, in the absence of any restriction in the Statute in the matter of granting anticipatory bail, it would lead to an anomalous and absurd position that anticipatory bail can be granted to a person accused of an offence punishable under the UAP Act unconditionally and restrictions would apply only in the matter of claiming regular bail."

It was further emphasised that the right to seek anticipatory bail is not a fundamental right under Article 21 of the Constitution. Considering the impact of international terrorism on society, the UAPA is designed to prevent and combat terrorist activities, and as such, it deliberately excludes the application of Section 438 of CrPC, Court said.

"Needless to say, the exclusion of the application of Section 438 of the Code to any case involving any person accused of having committed an offence punishable under the UAP Act is absolute. We take this view also for the reason that the right to seek anticipatory bail is not part of the fundamental right guaranteed to the accused under Article 21 of the Constitution. Having regard to the present dimension and impact of international terrorism on civil society, the UAP Act being a Statute intended for the prevention of, and for coping with terrorist activities, we are also of the view that the Statute is framed excluding the application of Section 438 of the Code to the offences punishable under the UAP Act, consciously. Needless to say, an application for anticipatory bail is not maintainable in respect of offences punishable under the UAP Act."

The case involved the seizure of a significant amount of gold from an import cargo addressed to the UAE Consulate General. The National Investigating Agency (NIA) alleged that the appellant and others conspired to smuggle gold, causing damage to India's monetary stability and economic security. After the NIA filed its final report, it sought more time for further investigation against the accused including the appellant. 

In the meantime, some of the accused were granted regular bail. Thus, the appellant argued that no prima facie case under the UAPA was made against him and sought anticipatory bail under Section 438 of CrPC. However, the Special Court denied it given the serious allegations made against him and for evading cooperation with the investigating agency. 

The appellant approached the High Court challenging this decision.

Arguments:

Advocate Babu S Nair appearing for the appellant contended that in the absence of any material to indicate that the appellant and others have smuggled large quantities of gold into India with the intent to threaten the country's economic security, a case under Section 15 of UAPA was not made out. It was further argued that from the final report, it was implied that the accused had smuggled gold into India only to make money. Under such circumstances, he was entitled to bail as per Mohammed Shafi v. NIA ]2021 (6) KLT 659], it was contended.

DSGI S Manu argued that appellant's application for anticipatory is not maintainable due to Section 43(D)(4) of the UAPA, which explicitly excludes the application of Section 438 of CrPC in cases involving UAPA.

The DSGI also submitted that Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454, which held that a similar provision in the SC/ST Act does not prevent the court from considering an application for anticipatory bail when a prima facie case is not made out, does not apply in the present case since the objectives of the UAPA and SC/ST Act are different.

Later on, the DSGI also cited Anand Teltumbde v. State of Maharashtra where an application for anticipatory bail in a case registered under the UAPA was dismissed as not maintainable, supporting the view that the exclusion of Section 438 CrPC for offences under the UAPA is absolute.

Findings:

The Court first examined Sections 43C and 43D of the UAPA.

Section 43D(4) explicitly excludes the application of Section 438 of the CrPC in cases involving the arrest of a person accused under the UAPA, making anticipatory bail unavailable for such offences. Section 43D(5) further states that persons accused under Chapters IV and VI of the UAPA cannot be released on bail unless the Public Prosecutor has been given an opportunity to be heard, and the Court is of the opinion that there are no reasonable grounds to believe that the accusation against the accused is prima facie true. Additionally, Section 43D(6) clarifies that these bail restrictions are in addition to any other restrictions on granting bail under the CrPC or any other applicable law.

The Bench found it essential to examine the objective of the UAPA to grasp the true implications of restricting the grant of anticipatory bail under Section 438 of CrPC in cases falling under UAPA. It was found that the UAPA aims to enhance the prevention of certain unlawful activities of individuals and associations, focusing on addressing terrorist activities.

The Court added that after amendment, the statute aligns with the resolutions of the UN Security Council to combat terrorism. Thus, there is no room for granting anticipatory bail to anyone accused of offences under Chapters IV and VI of UAPA. Hence, the Court took the view that anticipatory bail is not available for offences punishable under the UAPA under any circumstance. 

The Court added that UAPA is designed to prevent counter-terrorist activities, and therefore, anticipatory bail applications were not maintainable for offences punishable under this Act.

Regarding the parallels drawn with the SC/ST Act, the Bench observed that the exclusion of Section 438 CrPC for offences under the SC/ST Act is not absolute, as it aims to prevent abuse and protect innocent individuals. Additionally, the SC/ST Act allows for regular bail without restrictions. However, this reasoning does not apply to UAPA offences due to the Act's specific objective of combating terrorism. Therefore, the judgment in Subhash Kashinath Mahajan was found irrelevant to UAPA cases.

The Court also found that this was not an exceptional case in which the court's power to grant pre-arrest bail could be exercised as clarified in Prathvi Raj Chauhan v. Union of India [(2020) 4 SCC 727].

As such, the appeal was found devoid of merits and dismissed accordingly.

Case Title: Ahammedkutty Pothiyil Thottiparambil v Union of India & Anr

Citation: 2023 LiveLaw (Ker) 346

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