New Delhi, Oct 27 The Supreme Court on Tuesday held that there is no bar under the Unlawful Activities (Prevention) Act to grant bail to a foreign national if the initial entry of the accused into India is legal and authorised.
A bench of Justices Aravind Kumar and Vipul M Pancholi upheld the Madras High Court order setting aside the trial court order cancelling bail of a Sri Lankan national in a terror case.
The bench noted that despite the stringent threshold for granting bail to a foreign national under Section 43D (7) of UAPA, the prosecution had failed to establish that the initial entry of the accused into India was illegal.
The bench said that the National Investigation Agency (NIA) has failed to place any material on record to prima facie establish the entry as unauthorised or illegal and the allegations in subsequent FIR records that respondent Mohmad Rifas alias Mohamed Rigbas 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 proceedings under the Foreigners Act have been initiated.
“In the light of aforesaid discussion, we are of the considered view that present appeal is devoid of merit and hence stands dismissed. Consequently, the impugned order dated December 12, 2023 passed by the Madras High Court in criminal appeal… stands affirmed,” it ordered.
Rifas was arrested on the allegation of hatching a conspiracy to bring disharmony amongst the religious communities and against the government.
The bench noted that according to Section 43D(7) of the UAPA, the prosecution needs to establish three ingredients against the grant of bail to a foreign national – first, the person needs to be an accused of an offence punishable under the UAPA; second, such person must not be an Indian citizen; and third, he must have entered India unauthorisedly or illegally.
It noted that the second and third conditions are conjunctive and to be read together because the word ‘and’ is employed between them, making the satisfaction of both conditions mandatory to deny the relief of bail to a foreign national.
It said that 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 unauthorised to make the provision denying bail applicable.
The NIA alleged that the accused 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 and even got married.
The trial 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 Centre sought cancellation of the bail before the trial court on the ground that the accused had suppressed his Sri Lankan nationality. The trial court cancelled his bail.
However, the Madras High Court set aside that trial court’s order in December 2023, prompting the Centre to approach the top court.
The top court said that bail can be granted to foreign nationals under UAPA “except in very exceptional circumstances and reasons to be recorded in writing” occurring in the latter part of sub-section 43D(7).
“The said expression makes it apparent that 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’,” it said.
On the trial court’s power to cancel the bail, the bench said that courts have inherent power to cancel the bail.
“Though this court expanded the scope of power of courts while considering grant of bail even in absence of supervening circumstances, however, such power must be based on plausible reasoning and should not be exercised capriciously but with caution since the matter pertains to liberty of an individual and prosecution cannot be allowed to trifle with such liberty unless of paramount consideration for a fair trial was likely to be jeopardised,” it said.
(PTI News)
