The Supreme Court on Tuesday (October 27) held that there's no bar under the Unlawful Activities (Prevention) Act to grant bail to a foreign national.

Dismissing the Union of India's appeal, a bench of Justice Aravind Kumar and Justice Vipul M. Pancholi upheld the Madras High Court's decision granting bail to a person alleged to be a Sri Lankan national.

The Court noted that despite the stringent threshold for granting bail to a foreign national under Section 43D (7), the prosecution had failed to establish that the accused's initial entry into India was illegal.

As per Section 43D (7), the prosecution needs to establish the following ingredients against the grant of bail to a foreign national:

First, the person needs to be an accused of an offence punishable under the UAP Act;

Second, such person must not be an Indian Citizen; and

Third, he must have entered India unauthorizedly or illegally.

Noting that the second and third conditions are conjunctive and to be read together because the word 'and' is employed between them, makes the satisfaction of both conditions mandatory to deny the relief of bail to a foreign national. This means, merely proving an accused to be a foreign national would not be sufficient to deny him bail; rather, it needs to be also proved that the initial entry of that foreign accused was illegal or unauthorized to make the provision denying bail applicable.

“…merely because a person is not an Indian Citizen will not suffice to trigger the rigors of sub-section (7) of Section 43D rather the condition mandating “at the time he entered India”, such entry must be either unauthorized or illegal must also co-exist, therefore, a probable inference that can be drawn herein is that where a foreign national enters India under an authorization or through a legal process such as a valid visa, mere fact that subsequently, such authorization is revoked or the stay becomes illegal will not retroactively convert a lawful entry into an “unauthorized or illegal entry” warranting invocation of sub-section (7) of Section 43D and what is required and necessary is that when such person entered India initially such entrance itself was unauthorized or illegal. Unless, these conditions are satisfied, the statutory bar under Section 43D(7) cannot be invoked.”, the Court observed.

The case relates to the grant of bail to the Respondent by the Madras High Court, noting that the Union has no material except the intelligence report to prove that the accused is a Sri Lankan national, and the High Courts had discretion to grant bail even to a person who is not an Indian Citizen under Section 43D (7) of UAPA.

The prosecution alleged that Rifas was a Sri Lankan national who had entered India in 2009 and overstayed his visa. It further alleged that he had obtained Indian identity documents, including a voter ID card, Aadhaar card and ration card.

The Sessions Court had initially granted him default bail in July 2018 after the investigating agency failed to file the chargesheet within the prescribed statutory period. Subsequently, the Union Government sought cancellation of the bail, contending that the accused had suppressed his Sri Lankan nationality.

In July 2022, the Special Court cancelled the bail under Section 43D(7) of the UAPA. However, the Madras High Court set aside that order in December 2023, prompting the Union Government to approach the Supreme Court.

Subsequent Expiry Of Visa Does Not Attract Statutory Bar

Noting that the respondent-accused had been granted default bail under Section 43D(2) of the UAPA due to the investigating agency's failure to file the charge sheet within the stipulated period, the judgment authored by Justice Aravind Kumar held that the prosecution's allegation of suppression of identity could not, by itself, justify cancellation of bail. It further observed that bail could not have been denied under Section 43D(7) of the UAPA, as the prosecution had failed to establish the essential ingredients required to prove that the respondent was a foreign national who had entered India without authorisation or illegally.

“we are of the considered view that subsequent revocation of authorization or stay becoming illegal won't attract the rigors of sub-section (7) of Section 43D and it is apposite that initially entry itself should've been unauthorized or illegal. The appellant has failed to place any material on record to prima facie establish the entry as unauthorized or illegal. Even the allegations in subsequent FIR records that respondent had entered India through a valid visa and it was subsequent to the expiry of his visa that his stay became illegal, as such, necessary prosecution under the Foreigner Act has been invoked for the same.”, the Court said.

Foreign national accused under UAPA entitled to bail only in very exceptional circumstances

“the exception for grant of bail to a foreign national even when the above three conditions stand satisfied can be carved out but again such carving out has an extremely high threshold which is inherent therein itself by use of two expressions “very exceptional circumstances” and “reasons to be recorded in writing”. By the usage of said two expressions, again the legislative intent is explicitly apparent that even though the court is of the considered opinion that a foreign national, who is an accused of an offence punishable under UAP Act, is entitled for grant of bail unless there is an “exceptional circumstances” that too is qualified by the word “very” which warrants a standard extremely high showing a strong exceptional circumstance, the court shall not exercise its judicial discretion in favour of the accused person but even then where the court is of considered opinion to exercise such discretion, it has to record reasons in writing explaining such circumstances which warrants such exercise of judicial discretion for grant of bail in favour of the accused person. The burden of showing such “very exceptional circumstances” will solely lie on the shoulders of the accused person which may impel the courts to exercise the judicial discretion in favour of grant of bail. What can be a “very exceptional circumstances” would depend upon the facts and circumstances of each case and there cannot be straight jacket formula or a pigeonhole to exhaustively lay down those circumstances herein. Therefore, we are of the considered view, that Section 43D(7) creates a very high bar to be satisfied by the accused person once the prosecution establishes prima facie ingredients of sub-section (7) of Section 43D exists. The legislative intent warranting such high threshold is primarily backed by considerations of national security, larger public interest and sovereignty of India.”, the Court observed.

As a result, the appeal was being devoid of merit was dismissed.

Appearance:

For Petitioner(s) :Ms. Aishwarya Bhati, A.S.G. Mr. Gautam Bharadwaj, Adv. Mr. Anmol Chandan, Adv. Mr. Bhuvan Kapoor, Adv. Mr. Gaurang Bhushan, Adv. Mr. Arvind Kumar Sharma, AOR

For Respondent(s) :Mr. A Velan, AOR Ms. Navpreet Kaur, Adv. Mr. Prince Singh, Adv. Mr. Nilay Rai, Adv. Mr. Rashik Hameed Mukilan M, Adv. Ms. Vanya Sharma, Adv. Mr. Yashvardhan Chauhan, Adv. Ms. Anoopa Tiwari, Adv.