UAPA - 'Watali' Precedent Won't Apply If Evidence Is Of Low Probative Value On Surface Level Analysis : Supreme Court

The Supreme Court's decision to grant bail to Bhima Koregaon-accused and activists Vernon Gonsalves and Arun Ferreira appears to have carved out a crucial exception in an otherwise unyielding interpretation of the court's bail-granting powers under the Unlawful Activities (Prevention) Act, which flows from the Zahoor Ahmad Watali judgement. What is the Watali principle? In Watali (2019), an apex court bench headed by former judge AM Khanwilkar set aside the bail granted by the Delhi High Court to a Kashmiri businessman. The high court had found no 'reasonable grounds' to believe that the allegations against the UAPA accused were prima facie true. It had also discarded certain pieces of evidence from consideration after noting that they were inadmissible. The National Investigating Agency (NIA) challenged this decision saying that the high court had virtually conducted a 'mini-trial'. While deprecating the Delhi High Court's 'approach', the Supreme Court held that no attempt could be made to venture into the merits and demerits of the case at a pre-trial stage, saying: “The issue of admissibility and credibility of the material and evidence presented by the investigating officer would be a matter for trial.” A determination regarding the grant of bail, the bench further said, would only require a court to record a finding on the basis of 'broad probabilities' regarding the involvement of the accused in the commission of the alleged offence. It observed: “The high court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The high court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The court is expected to apply its mind to ascertain whether the accusations against the accused are prima facie true.” In essence, not only did the Watali bench restrict the ambit of examination of a court at a pre-trial stage to the prosecution's version of events – unchallenged in cross-examination, but also placed a bar on a detailed analysis of the prosecution's case itself when dealing with the question of bail under Sub-section (5) of Section 43D. As a result of this judgement, courts can cite evidence placed on record by the National Investigating Agency, irrespective of their admissibility or probative value, to deny bail. This interpretation has significantly narrowed the scope of the already stringent section and made it all the more difficult for UAPA undertrials to get bail. What has the Supreme Court said about this earlier? From KA Najeeb to Thwaha Fasal, some progress has been made in liberalising the bail jurisprudence under the Unlawful Activities (Prevention) Act. In Najeeb (2020), the apex court upheld the power of a constitutional court to grant bail to people accused of offences under the UAPA, irrespective of Section 43D(5), on finding that their right to a speedy trial under Article 21 has been violated. This ratio was followed in a line of judgements, in which a prolonged period of incarceration prompted the top court to release the accused on bail. In Thwaha Fasal (2021), a significant effort was made by a bench of Justices Ajay Rastogi and Abhay S Oka to temper the severity of the Watali principle by holding that the embargo on the grant of bail under Section 43D(5) would not apply if the charge sheet did not reveal a prima facie case. In other words, the ingredients of the offence(s) a UAPA undertrial is accused of committing should prima facie be made out only on the basis of the charge sheet for the court to decline their bail plea. The bench observed: “The proviso imposes an embargo on grant of bail to the accused against whom any of the offences under Chapters IV and VI have been alleged. The embargo will apply when after perusing the charge sheet, the court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true. Thus, if after perusing the charge sheet, if the court is unable to draw such a prima facie conclusion, the embargo created by the proviso will not apply...If a charge sheet is already filed, the court has to examine the material forming a part of the charge sheet for deciding the issue of whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the court has to take the material in the charge sheet as it is.” What has the Supreme Court said about this now? In Vernon, the bench of Justices Aniruddha Bose and Sudhanshu Dhulia held that a plea for bail under Section 43D(5) of the Unlawful Activities (Prevention) Act would not pass muster of the prima facie test envisioned in...

UAPA - 'Watali' Precedent Won't Apply If Evidence Is Of Low Probative Value On Surface Level Analysis : Supreme Court

Awstika Das

"Graver the offence, the greater should be the care taken to see that the offence would fall within the four corners of the Act", Court said.

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