Bail an exception and jail the rule under UAPA: Supreme Court on Sikhs for Justice member's plea

New Delhi: The Supreme Court has said the intention of the legislature in the Unlawful Activities (Prevention) Act is to make bail the exception and jail the rule.

The statement came as the top court rejected a plea by an alleged member of banned outfit 'Sikhs for Justice' run by US-based Khalistan supporter Gurpatwant Singh Pannun.

A bench of Justices M M Sundresh and Aravind Kumar said the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of courts must tilt in favour of the oft-quoted phrase - ‘bail is the rule, jail is the exception’ – unless circumstances justify otherwise - does not find any place under the UAPA.

"It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act and in that sense, the language of bail limitation adopted therein remains unique," the bench said in its judgement on February 7, 2024.

The court said the test for rejection of bail is quite plain in cases under the UAP Act.

"Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied – that the courts would proceed to decide the bail application in accordance with the ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence)," the bench said.

The court further said the ‘exercise’ of the general power to grant bail under the UAPA is severely restrictive in scope.

"The form of the words used in proviso to Section 43D (5)– ‘shall not be released’ in contrast with the form of the words as found in Section 437(1) CrPC - ‘may be released’– suggests the intention of the Legislature to make bail, the exception and jail, the rule," the bench added.

The court dismissed an appeal filed by Gurwinder Singh, against the Punjab and Haryana High Court's order rejecting his bail application. Singh was arrested in 2018 after busting of terrorist organisation module. The NIA filed the charge sheets in the case after taking over the probe from the Punjab police. The court framed charges on December 9, 2021.

The accused appellant sought bail on grounds that he has been in jail for over five years, among other reasons.

The court, however, said mere delay in the trial pertaining to grave offences cannot be used as grounds for bail.

In the case, the bench noted the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organisation involving the exchange of large quantum of money through different channels which needs to be deciphered.

Therefore, in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice, the bench said.

"We are of the considered view that the material on record prima facie indicates the complicity of the accused as a part of the conspiracy since he was knowingly facilitating the commission of a preparatory act towards the commission of terrorist act under Section 18 of the UAP Act," the bench said.