Legal immigrants can be granted bail under UAPA:SC says foreign nationality alone is not grounds to deny bail

The Supreme Court said that a foreign national who entered India legally and with proper authorisation can be granted bail under the UAPA. A bench of Justice Aravind Kumar and Justice Vipul M Pancholi upheld the Madras High Court’s ruling. The High Court had set aside a trial court order cancelling the bail of a Sri Lankan national in a terror-related case. The Supreme Court said the NIA had failed to prove that the accused, Mohamed Rifas, alias Mohamed Rigbas, had entered India illegally or without permission. According to the record, he had entered India on a valid visa, and his stay became illegal after the visa expired. The bench said the conditions for granting bail to a foreign national under Section 43D(7) of the UAPA were stringent. Even so, the prosecution failed to prove that the accused’s initial entry into India was illegal. The court said the NIA had not placed any prima facie evidence on record to establish that the accused’s entry was unauthorised or illegal. The subsequent FIR also stated that Rифas had entered India on a valid visa. His stay in India became illegal after his visa expired. In this case, the necessary action under the law relating to foreign nationals has already been initiated. The bench said, “Based on the discussion above, we are of the view that this appeal is devoid of merit. It is therefore dismissed.” The court upheld the order passed by the Madras High Court in the criminal appeal on 12 December 2023. Three conditions under Section 43D(7) of the UAPA The Supreme Court said that, under Section 43D(7) of the UAPA, the prosecution must prove three things to prevent a foreign national from being granted bail. First, the accused must be charged with an offence punishable under the UAPA. Second, the accused must not be an Indian citizen. Third, the accused must have entered India in an unauthorised or illegal manner. The court said the second and third conditions are connected to each other. The word ‘and’ has been used between them. Therefore, both conditions must be fulfilled to deny bail to a foreign national. The court made it clear that an accused person’s foreign nationality alone is not sufficient grounds to deny bail. It must also be proved that the person initially entered India illegally or without permission. What were the allegations against Rifas? Rifas was arrested on charges of creating tension between religious communities and conspiring against the government. The NIA alleged that he was a Sri Lankan national. He came to India in 2009 and stayed on even after his visa expired. The investigating agency also alleged that he had obtained documents linked to Indian identity. These included a voter ID card, Aadhaar card and ration card. He had also got married. The trial court granted him default bail in July 2018 after the investigating agency failed to file the chargesheet within the stipulated time. After this, the central government asked the trial court to cancel the bail. The government alleged that the accused had concealed his Sri Lankan nationality. The trial court cancelled his bail. However, in December 2023, the Madras High Court overturned the trial court’s order. The central government then approached the Supreme Court. Comments on the exception relating to bail The Supreme Court said that a foreign national can be granted bail under the UAPA. However, this would not be possible unless there are “very exceptional circumstances” and the reasons for granting bail are recorded in writing. The court said the provision makes it clear that an exception to the bar on bail can be made even when all three conditions mentioned above are met. However, a very high threshold has been set for this. This threshold includes “very exceptional circumstances” and “reasons recorded in writing”. Court’s power to cancel bail On the trial court’s power to cancel bail, the bench said that courts have the inherent power to cancel bail. The court said it had earlier made it clear that courts can consider bail in certain cases even when no new circumstances have emerged. However, such power must be exercised on the basis of sound reasoning. It must be used cautiously, not arbitrarily. The bench said the case concerned an individual’s liberty. The prosecution cannot interfere with this liberty unless there is a risk of serious prejudice to a fair trial. ​