Disclosure:
The authors are both arraigned as accused under UAPA and are still in judicial custody and make no pretensions to being "unbiased" or “neutral” with respect to issues discussed herein. This, however, is not to imply that their position had been or would have been different had they not been charged under UAPA.
Acknowledgements
The authors wish to express their gratitude to their co-defendants for sharing the brunt of the Zahoor Watali judgement. The indebtedness of the primary author to Vernon Gonsalves, who all but co-authored this article, cannot be adequately expressed. The germs of this article must have been sown while they were confined together in a quarantine barrack amidst pathogens more lethal. The part on “per incuriam” would have been impossible had Vernon not magnanimously shared his legal notes. None other than the authors are guilty for any of the shortcomings
The judgement in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 [“Watali] was delivered by the Supreme Court on 02.04.2019. Ever since then, procuring bail for a person accused of an offence under Chapters IV or VI of the Unlawful Activities (Prevention) Act, 1967 (UAPA) has been, to borrow an illustrative simile used by Abhinav Sekhri, like asking a person to swim after throwing him in deep water with both his hands tied behind him. Subsequent to this, a Three-Judge Bench of the Supreme Court delivered another judgement on 01.02.2021 concerning the jurisprudence of bail under UAPA - more specifically with respect to the question of the interplay of the right to speedy trial and Section 43-D(5) of UAPA (i.e. the restrictive bail clause) - in the case of Union of India v. KA Najeeb AIR 2021 SC 712 [“Najeeb”].
Akin to the Frostian roads that diverge, these two landmark judgements take different, though not contradictory, approaches to the issue at hand. As the Delhi High Court observed, Najeeb “lays down the constitutional approach arising from Article 21, whereas Watali (supra) explains the statutory approach arising out of Section 4-3(D)(5) of UAPA” (para 21 of Mohamad Hakim v. State (NCT of Delhi) 2021 SCC Online Del 4623. Najeeb harmonizes “the restriction under a statute as well as the powers exercisable under Constitutional Jurisdiction” by holding that
“... at the commencement of proceedings, courts are expected to appreciate the legislative position against grant of bail but the rigours of such provision melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence…”
(para 18 of Najeeb)
Thus, the settled position of law at present is that the restriction on grant of bail will hold at the initial stages, but as time progresses the statutory restrictions, which “draw this justification on the premise that trial in such cases would be concluded expeditiously” melt down as observed by the Bombay High Court in Vinay Vivek Aranha v. Union of India and another, (BA 2641/2021). However, the attempt to harmonize these two divergent approaches, we argue, misses certain fundamental anomalies in Watali.
Per Incuriam and Sub-Silentio
That a decision rendered in ignorance of a relevant statutory position is deemed to be per incuriam is a well-settled fact. It is also accepted that a decision reached per incuriam would “demand the decision of its precedent value” [Para 183 of AR Antulay v. RS Nayak (1988) 2 SCC 602)].
Similarly, a “decision passes sub-silentio when the particular point of law involved in the decision is not perceived by the court or present in its mind” [Salmond on Jurisprudence, 12th Ed., page 153, quoted in State of UP and Anr. v. Synthetics and Chemicals Ltd. & Anr. (1991 4 SCC 139 (Para 41)]. The “Supreme Court may not be said to declare the law on these subjects if the relevant provisions were not really present to its mind” [Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court (1980) 3 SCC 682)].
It is our contention that Watali is both per incuriam and sub-silentio in that on the one hand it ignores certain statutory provisions while on the other it overturns a finding of the impugned judgement of the Delhi High Court without referring to the statutory provision or providing any argument against the view taken by the High Court.
Let us begin by quoting the Section 43-D(5) of UAPA in order to demonstrate our claims:
“Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapter IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” [Emphasis supplied]
Para 23 of Watali states:
“By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise.”
However, what Watali ignores is that Section 2(d) of UAPA defines the Court as follows:
2(d) “‘Court’ means a Criminal Court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 22 of the National Investigation Agency Act, 2008.”
That is to say, on a plain reading of Section 43-D(5) in conjunction with the definition of “Court” in Section 2(d) of the UAPA, it is clear that Section 43-D(5) is talking about the courts that have the jurisdiction to try the offences under the Act, and not the superior courts.
While moving the UA(P) Amendment Bill 2008 (which inserted the Section in question) in the Lok Sabha on December 17,2008, the Union Home Minister P Chidambaram stated:
“...This is one provision that I would like to draw your kind attention. We are saying that if on a perusal of the case diary or the report under Section 173 that is the final report or what we call the challan the court is of the opinion that there are reasonable grounds for believing that the accusation against a person is prima facie ture, then and then alone can be bail be refused…. Again, the High Courts and the Supreme Court have ample powers and this does not, in any way bind the High Courts and the Supreme Court, they will apply mainly to the trial court.”
[Lok Sabha Debates: Combined discussion on the Motion for Consideration of the National Investigation Agency Bill, 2008 and the Unlawful Activities (Prevention) Amendment Bill, 2008 (Bills Passed)... on 17 December 2008]
It may be noted that the Prevention of Terrorism Act, 2002 (POTA), after the repeal of which UAPA was recast as an anti-terrorism law and from which most of the anti-terrorism provision were imported to UAPA, did not make such a distinction between courts that have jurisdiction to try offences under the Act and other courts with respect to the power to grant bail. Neither do any of the other special laws that have similar restrictive bail clauses. Section 49(7) of POTA, the Section that restricts the power of the court to grant bail, refers to the “Court”, but there is no definition of “Court” in the Act. Section 2(f) of POTA defines only “Special Court”.
To be fair to Watali, no judgement of either the Supreme Court or of any of the High Courts seems to have delved into the issue of the statutory restriction on the power of Constitutional Courts to grant bail. However, prior to Watali, courts have granted bail without demurring on the restriction on their powers to grant bail imposed by Section 43-D(5) of the Act. Thus in decisions delivered in 2016 and 2017 [in cases of Angela Harish Sontakke v. State of Maharashtra (2021) 3 SCC 723 and Sagar Jataram Gorkhe v. State of Maharashtra (2021) 3 SCC 725)], the Supreme Court granted bail without going into the restriction imposed by section 43-D(5). Post Watali, High Courts and the Supreme Court begin to act as though their hands are fettered by Section 43-D(5) UAPA in spite of the clear and unambiguous definition in the Act.
For instance, in Soma Kanti Sen v. State of Maharashtra & Anr. (Cr.A. No. 2595/2023), the second supplementary chargesheet was filed after the trial court rejected the bail application, and the High Court, while sitting on appeal, directed the appellant to approach the trial court as it was the appropriate forum that should first appreciate the (new) evidence. The Supreme Court in appeal against the High Court order held that while the High Court was right in its position that the trial court was the first forum to appreciate the evidence, it also had every right to appreciate the evidence as the appellate body. It was further held that as the Supreme Court was sitting on appeal, “the same appellant jurisdiction which vested in the High Court will vest in the Supreme Court” (para 15). Thereafter, while examining the case for bail on merit, the Apex Court does not clarify that it is not bound by Section 43-D(5) of UAPA, but goes on to examine whether offences under Chapters IV and VI UAPA are applicable to the facts, as the restriction under Section 43-D(5) kicks in only in case of such offences. That is to say, the whole exercise is undertaken under the assumption that Section 43-D(5) construes the powers of the Supreme Court to grant bail on merit.
No doubt, courts have been categorical in holding that statutory restrictions cannot nullify constitutional powers. Therefore, it is well settled that the right to speedy trial (recognised as a facet of Article 21 of the Constitution) will override the statutory restriction imposed by Section 43-D(5) in case of long incarceration. The irony, however, is that the Statute itself imposed no such restriction. Just as Section 437 of the Code of Criminal Procedure, 1973 / Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 imposes a restriction on the powers of a Magistrate in the case of offences punishable with death or imprisonment for life if there are reasonable grounds for believing that the person is guilty of such offence, Section 43-D(5) of UAPA imposes a restriction on the powers of the trial court and not of the High Court and Supreme Court.
In fact, the question of the exclusion of the jurisdiction of the superior courts by legislation was one of the issues before a Constitutional Bench of the Supreme Court in the context of Section 25 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (restricting) the power of the High Court to entertain petitions under Article 226 of the Constitution) in Kartar Singh v. State of Punjab (1994) 3 SCC 569. The Constitution Bench held that the power of the Constitutional Court, which is on a higher pedestal, cannot be divested under a statute albeit with a cautioning that such power should be undertaken only in rare and exceptional cases.
While interpreting the proviso to Section 43-D(5), Watali says “ the totality of the material gathered by the investigation agency and presented along with the report and including the case diary, is required to be reckoned…” (Para 27, emphasis supplied). When the Statute expressly uses the disjunction ‘or’ in the Section (“case diary or the report made under section 173 of the Code”), Watali changes the connecting word to the conjunctive ‘and’. Admittedly, ‘or’ can be read in certain contexts. However, there has to be a reasoning given for such an interpretation, especially since the impugned High Court judgement (supra) has offered the following reasoning:
“34…(iii)...what the trial Court will peruse is the case diary ‘or’ the chargesheet under S.173 CrPC. At a stage prior to the filing of the charge sheet, the case diary can be looked into by the trial court to find out the progress of the investigation and about the material gathered against the accused persons. The charge sheet is the culmination of the analysis of the investigation officer (IO) of all the material gathered and reflects his opinion about the guilt of the accused. Although it is argued by Mr. Luthra that the trial court could peruse both the case diary as well as the charge sheet, the legislative intent is clear that once a charge-sheet has been filed, the trial court will look to the charge-sheet as it is the expression of opinion formed by the Investigation Officer (‘IO’) after analyzing the evidence that has been gathered, all of which ought to have been referred to in the case diary.”
Thus, when the statute uses ‘or’ and the impugned decision makes a reasoned argument for interpreting it as ‘or’, and not as ‘and’, Watali gives no reasoning for arriving at a decision to the contrary. In fact, it cannot even be said that Watali arrives at a different finding. It just appears that the Court is unmindful of the difference - a classic case of sub-silentio.
The Loss of Reasonableness
What is hailed as Watali’s most significant contribution to bail jurisprudence in UAPA, which perhaps has inflicted the biggest dent on the rights of the accused by prolonging incarceration, is its interpretation of what it means when Section 43-D(5) says that the Court shall not release the accused person on bail if it “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” [Emphasis supplied]
It may be noted that the particular formulation of the restrictive bail clause in UAPA (which requires the court to find reasonable grounds for believing that the accusation is prima facie true) is different from restrictive bail clauses in other special statutes like Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Section 45(1) of the Prevention of Money Laundering Act, 2002 (PMLA), or even Section 49(7) of the repealed POTA, where the requirement is for the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. Certain decisions like Shamil Saquib Nachan 2013 ALL MR (Cr.) 2273 have held that there is “no basic difference in the practical application of these provisions in spite of the difference in the phraseology" (para 27). We shall not engage in a comparison of the restrictive bail clauses of different statutes, but shall show that Watali has not appreciated the restrictive bail clause of UAPA in its right perspective.
The essence of Watali’s exegesis is captured in the passage quoted below:
“23. …the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused ‘not guilty of such offence’ as required under the other special enactments. In any case the degree of satisfaction to be recorded by the court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.” [Emphasis supplied]
The line of reasoning cannot be more clearly expressed than this. A very strong suspicious framing of charge; and that very strong suspicion leads to the assumption that “reasonable grounds” exist to believe that the accusation is true.
Abhinav Sekhri in a study of the restrictive bail regimes notes that when the clause restricting the powers of the Magistrate to grant bail in cognizable offences was first introduced in the Criminal Procedure Code of 1898, the “material which formed the basis of applying the test [of reasonable grounds] was fundamentally different” (“Jail is not the rule - A history of restrictive bail regimes”, March 4, 2024, “Proof of Guilt”). The committal hearings under Section 206 of the 1898 Code ensured that the prosecution witnesses were examined on oath and subjected to cross examination before a Magistrate was to form an opinion about the existence of reasonable grounds. When committal hearings were done away with following the 1973 Amendment of the Code, the same exercise of arriving at a finding of reasonable grounds came to be based on “unsigned unsworn statements by the police officers which the law itself declares ought not to be used as substantive evidence”. Thus, Sekhri argues, a “jurisprudence of suspicion” came to dominate bail hearings.
Watali not only cements the “jurisprudence of suspicion,” but equates the degree of satisfaction required to reject bail to the level of the one necessary to frame charge, or even lower as we shall show. The significant difference in the language used with respect to framing of charge in Sections 228 and 240 of CrPC and Section 43-D(5) of UAPA seems to have escaped the learned judges. The former says framing of charge is to be done if the Magistrate/Judge “is of opinion that there is ground for presuming that the accused has committed an offence…” while the latter requires the Court to have “the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” That is to say, there are two crucial differences between both: (i) The latter qualified “grounds” with “reasonable” while the former has no such qualification, and (ii) the former talks about “presuming” while the latter is about “believing”.
“Reasonable” is defined as “fair, practical and sensible” and “acceptable and appropriate in a particular situation” (Oxford Advanced Learner’s Dictionary of Current English, 9th Ed.). The phrase “reasonable grounds” occurs in many penal statutes, and there have been many judicial pronouncements on its import. Both in Union of India v. Shiv Shankar Kesari (2007) 7 SCC 798 with regard to Section 37(1)(b)(ii) of the NDPS Act and in Chenna Boyanna Krishna Yadav v. State of Maharashtra (2007) 1 SCC 292 in the context of Section 21(4) of MCOCA, the Supreme Court has held that reasonable grounds “means something more than prima facie ground” (Para 7 of the former and Para 13 of the latter).
“To presume something” in its plain meaning is “to suppose that something is true although you do not have proof” or “to accept that something is true until it is shown not to be true” (Oxford, supra). Believing requires a more degree of certainty. The dictionary meaning is :to think something is true or possible” or “to have an opinion” that something is true. The distinction should be clear if we think of presumption of innocence. An accused is only presumed to be innocent, not believed.
A careful reading of Watali would reveal that it is the total disregard of the qualification “reasonable” that leads to the lowering of the bar for finding the accusation to be prima facie true. While the prima facie test is expounded in several paragraphs, not a single drop of ink is spent on understanding the import of what counts as “reasonable grounds” in Watali. It is our contention that without applying the standard of reasonableness, the test to determine whether the accusation is prima facie true becomes nothing more than an exercise to establish a “prima facie case”, which is defined as “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted” [Anees v. State Government of NCT, 2024 Cri LJ, para 49]. Or in other words, it means that “a legal claim has sufficient evidence to proceed to trial or judgement” (ibid). If there is no prima facie evidence, the initial claim is dismissed.
At the core of Watali’s reasoning is also the principle that “the issue of admissibility and credibility of the material and evidence presented by the investigation agency would be a matter for trial” (para 52). What persuades the learned judges to accept this line of argument is nothing more than the “force of the learned Attorney General” (ibid). A pertinent question is whether reasonable grounds for believing something is true can be founded on material that is neither credible nor admissible. Watali does note that Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 says:
“46. …the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgement of conviction…”
However, since the only operative expression for Watali is “prima facie true”, and since the Attorney General makes forceful arguments, Watali is swayed to accept documents presented by the investigation officer as it is.
It may be noted that more recently in Arvind Kejriwal v. Directorate of Enforcement 2024 Cri LJ 3531 the Supreme Court while dealing with bail under PMLA held that in the context of considering bail application, “[a]ll material and evidence that can be lead in the trial and admissible, whether relied on by the prosecution or not and can be examined” (para 46) as “41. …Guilt can only be established on admissible evidence to be led before the court, and cannot be based on inadmissible evidence…”
The same judgement also noted that the parameters of stipulation relevant at the time of framing of charge will not apply when the issue is of grant or denial of bail (para 46)
When all that is required of the court is to look at the contents of the documents or the evidence presented by the investigation officer and take them into account as it is on the basis of broad probabilities regarding the involvement, the accused in the commission of the alleged offence as outlined in paras 24 and 27 of the judgement, the degree of satisfaction required is nothing more than establishing a prima facie case. This is evident in a more recent decision of the Supreme Court [Union of India v. Barkathullah etc. 2024 Cri LJ 3183].
The legal dictum while dealing with stringent laws have always been “graver the offence, greater should be the care taken to see that the offence must strictly fall within the four corners of the Act” [Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. AIR 1994 SC 2623 (Para 14)]. Some of the High Court decisions prior to Watali have been more circumspect in applying the prima facie test. The Bombay High Court in Shamil Saquib Nachan (supra) did acknowledge that “judging the existence of a prima facie case at the stage of bail would not be the same as judging the existence of a prima facie case for proceeding against an accused for framing a charge” (para 27). The High Court goes on to reiterate
“28. …It is too obvious that an accused would never be required to put forth a stronger case for bail, than would be required for discharge. The tests that are applied at the time of bail cannot be as rigorous as are applied while considering the discharge of an accused from a particular case."
In what is perhaps the most brilliant exposition of Section 43-D(5) with respect to the question of discharge, a Full Bench of the Guwahati High Court holds as follows in Rajen Boro & Ors. v. NIA & Ors. MANU/GH/0420/2016:
“26. …if there is a strong suspicion about the culpability of the accused, that would be sufficient for the court to frame charge against the accused under 228 CrPC. However, while considering bail of a person arrested on an accusation of having committed an offence under Chapters IV and VI of the ULAP Act, the Court must not only form an opinion that the accusation against the accused in prima facie true but such opinion has to be based on reasonable grounds, which have been explained to mean something more than prima facie grounds, contemplating substantial probable causes for believing that the accused is guilty of the accusation. Thus, the standard of scrutiny in both the fields are different. While there is strong suspicion at the stage of framing of charge, on the other hand, while considering bail under section 43(D)(5), it is something more than prima facie grounds for believing that the accused is guilty of the alleged offence. In other words, the standard of scrutiny to determine prima facie correctness of the accusation against the accused while considering bail under Section 43D(5) is much higher than at the stage of framing charge.”
Thus, while both the High Courts have been arguing for raising the standard required for holding that the accusation is prima facie true, Watali traverses a diametrically opposite direction without offering any valid argument and in complete disregard of the express wording of the Statute.
Watali also seems to be oblivious of the discretionary power of courts in bail jurisprudence and operates as though the courts were denuded of all such powers although it is professed that it takes guidance from the judgement of a three-judge bench of the Supreme Court, which, while interpreting the restrictive bail clause of MCOCA, warned that the “restraint of the power of the court to grant bail should not be pushed too far” [(Para 38 of Ranjitsing, supra). Watali seems to be impervious to the warning Rajen Boro (supra) was also categorical in that it cannot be “overlooked that grant of bail is a discretionary power conferred upon the Court” (para 30).
Thus, we see that while Watali ignores both statutory provisions and binding precedents, Najeeb steps in with the constitutional safeguard against long incarceration. However, both the judgments seem not to have taken into consideration that the statutory restriction does not bind constitutional courts, and, therefore, they are not constrained by the “prima facie test” spelt out in Section 43-D(5) UAPA while deciding bail applications on merit. Even the attempt in Vernon v. State of Maharashtra and Anr. 2023 All MR (Cri) 3082 SC to undertake a “surface analysis of probative value of the evidence” and the stipulation that the probative value should satisfy the court, though significant, only operates within the constraints of Section 43-D(5) of UAPA (para 36 of Vernon). The approach in Vernon may be a step towards acknowledging that the prima facie test adopted by Watali is flawed and inadequate unless conducted in the light of reasonable grounds. Long and ominous are, still, the shadows cast by Watali.
