Union Of India vs Mohamed Rifas @ Mohamed Rigbas
- Court
- Supreme Court
2026 INSC 1160
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2026
Arising out of SLP (Criminal) No(s). 7177 of 2024
UNION OF INDIA … APPELLANT(S)
VERSUS
MOHAMED RIFAS @ MOHAMED
RIGBAS … RESPONDENT(S)
J U D G M E N T
“The issue of bail is one of liberty, justice, public
safety and burden of the public treasury, all of which
insist that a developed jurisprudence of bail is
integral to socially sensitized judicial process.”
Justice V.R. Krishna Iyer
ARAVIND KUMAR J.
1. Heard.
2. Leave Granted.
3. IA No(s). 78440 of 2025 and 203232 of 2026 are allowed.
Signature Not Verified
Digitally signed by
RASHI GUPTA
Date: 2026.10.27
17:48:41 IST
Reason:
SLP (Crl.) No. 7177 of 2024 Page 1 of 34
4. The present appeal raises a substantial question of law, that is:
whether a foreign citizen, accused of offence punishable under
Unlawful Activities Prevention Act, 1967 (for short “ UAP
Act ”), is entitled for grant of bail in the light of restriction
under Section 43D(7) of the UAP Act, falls for our
consideration by way of challenge to the Judgement and Order
dated 12.12.2023 passed by the Madras High Court in Criminal
Appeal No. 1000 of 2022 (for Short “ Impugned Order ”)
whereby the Division Bench of the High Court has allowed the
appeal preferred by the respondent herein and set aside the
order dated 05.07.2022 passed by the Learned Special Court
under the National Investigation Agency Act, 2008 (Sessions
Court for Exclusive Trial of Bomb Blast Cases) at Chennai in
Crl. M.P. No. 213 of 2022 (for short “ Learned Trial Court ”)
which had allowed the cancellation of bail granted to
respondent vide order dated 05.07.2018 by the court of
Principal District and Sessions Judge, Ramanathpuram (for
short “ Sessions Court ”) in Crl. MP No. 1292 of 2018.
FACTUAL MATRIX
5. Succinctly, the facts are that respondent herein was arrayed as
one of the accused in FIR No. 46/2018 dated 02.04.2018
registered at PS Keelakarai, Tamil Nadu for offences
SLP (Crl.) No. 7177 of 2024 Page 2 of 34
punishable under Section(s) 153A and 120B of Indian Penal
Code, 1860 (for short “ IPC ”), Section(s) 15, 17, 18, 19 and 20
of UAP Act and Section 25(1)(a) of the Arms Act, 1959 on the
allegation of hatching a conspiracy to bring disharmony
amongst the religious communities and against the government
and was arrested. On 03.07.2018, the respondent preferred
petition under Section 439 of the Code of Criminal Procedure,
1973 (for short “ Cr.P.C. ”) seeking regular bail before the
Sessions Court. On 05.07.2018, the Sessions Court after
considering the material on record granted default bail under
Section 167(2) of Cr.P.C. since the prosecution had not filed
the chargesheet within the prescribed statutory limit.
6. On 09.01.2019 an order came to be passed by the Ministry of
Home Affairs whereby considering the gravity of the offence
in Crime No. 46 of 2018, the National Investigation Agency
(for short “ NIA ”) was directed to conduct thorough
investigation to unearth a larger conspiracy in accordance with
provisions of National Investigation Agency Act, 2008 (for
short “ NIA Act ”). As such, on 10.01.2019, the NIA took over
the investigation of Crime No. 46 of 2018 and re-registered the
FIR as RC-01/2019/NIA/DLI in NIA PS New Delhi under the
same penal provisions. The said FIR alleged that the
SLP (Crl.) No. 7177 of 2024 Page 3 of 34
respondent knowingly and intentionally organized besides
participated along with other accused persons in criminal
conspiracy and met at different places in Tamil Nadu with
intent of inciting the co-accused persons and others for
disrupting communal harmony, to cause enmity and hatred
between religious groups and to cause dissatisfaction against
Government of India by waging armed struggle to liberate their
associates who are lodged in prisons, as such, committing
terrorist act under UAP Act. It is also alleged that respondent
possessed sharp edged weapon collected as part of preparations
to commit unlawful activity and terrorist acts.
7. Meanwhile, on 29.11.2019, another FIR No. 188 of 2019 came
to be lodged under Section(s) 468 and 471 of the IPC, Section
14 of the Foreigners Act, 1946, Section 3(a) and 6(a) of the
Passport (Entry into India) Rules, 1950, Section 6(c) of the
Passport Act, 1967 and Section 2(1)(b)(I) of the Citizenship
Act, 1955 against the respondent herein on his alleged
confession to a Village Administrative Officer, complainant in
the said FIR, on 28.11.2019, that respondent is a Sri Lankan
national holding passport no. M1 103657, who entered into
India in 2009 and overstated his visa and thereafter illegally
obtained Indian Voter ID Card, Aadhar Card and Ration Card
SLP (Crl.) No. 7177 of 2024 Page 4 of 34
and got married in 2011 to one Rosen Salma and has four
children with whom he resides at Keejakarai.
8. On 23.01.2021, the NIA filed the chargesheet against 10
accused persons including the respondent herein under various
provisions of IPC, UAP Act and Arms Act in connection with
FIR No. RC-01/2019/NIA/DLI to which the trial court took
cognizance and the same was registered as CC No. 01 of 2021.
9. On 29.04.2022, the appellant moved an application under
Section 439(2) of Cr.P.C. bearing Crl. MP No. 213 of 2022
seeking cancellation of bail granted to the respondent vide
order dated 05.07.2018 while relying upon FIR No. 188 of
2019 on the ground that respondent suppressed the material
fact that he is Sri Lankan citizen and intentionally
misrepresented in his bail petition at Para no. 5 that he is a law
abiding citizen to bypass the mandate of Section 43D(7) of
UAP Act which restricts grant of bail to a foreign citizen
accused of offences punishable under the UAP Act.
10. On 05.07.2022, the Learned Trial Court after considering the
grounds urged by the appellant and the counter affidavit filed
by the respondent, allowed the application and cancelled the
bail granted to the respondent vide order dated 05.07.2018
relying upon Section 43D(7) of UAP Act.
SLP (Crl.) No. 7177 of 2024 Page 5 of 34
11. Aggrieved by the order of the learned Trial Court, the
respondent preferred Criminal Appeal no. 1000 of 2022 before
the Madras High Court wherein the present Impugned Order
came to be passed by allowing the appeal and setting aside the
order dated 05.07.2022 which cancelled the bail. Hence, the
present appeal.
FINDINGS OF THE IMPUGNED ORDER
12. The High Court considered Section 43D(7) of the UAP Act and
held that the said provision does not take away the discretion
of the court and even if such restriction is mandated, the court
can still grant bail to a person who is not a citizen of India under
extraordinary circumstances.
13. The High Court further held that the learned Trial Court had no
power to review its own order in terms of judgement in Abdul
Basit Alias Raju and Others v. Mohd. Abdul Kadir
1
Chaudhary and Another , as such, appellant herein ought to
have filed an appeal against order dated 05.07.2018 rather than
seeking cancellation of bail before the same court. The High
Court did not accept the explanation tendered by the appellant
herein that since the statutory period of limitation had expired
1
(2014) 10 SCC 754
SLP (Crl.) No. 7177 of 2024 Page 6 of 34
for filing an appeal, appellant was constrained to file a petition
for cancellation of bail.
14. The High Court further observed that apart from the FIR No.
188 of 2019 based on the alleged confession given by
respondent to the Village Administrative Officer, the appellant
had no other independent material to establish that respondent
is a Sri Lankan National and he had entered the Indian territory
illegally. The High Court further observed that even if it is
assumed that respondent is a Sri Lankan national, he was
granted bail in 2018, as such, his liberty cannot be curtailed
after four years, merely because there is an FIR registered in
2019. The High Court also took note of the fact that petition
seeking cancellation of bail was not filed by the appellant
immediately after the registration of FIR but rather three years
after the registration of FIR in Crime No. 188 of 2019,
therefore, liberty could not have been curtailed especially in the
light of non-explanation of any reason for the delay seeking in
cancellation of bail. As such, the High Court was inclined to
allow the appeal preferred by the respondent herein and quash
the order dated 05.07.2022 which cancelled the bail granted to
the respondent vide order dated 05.07.2018.
SLP (Crl.) No. 7177 of 2024 Page 7 of 34
SUBMISSIONS ON BEHALF OF THE APPELLANTS
15.
We have heard Ms. Aishwarya Bhati, Learned Additional
Solicitor General of India appearing on behalf of the appellant.
16. It is contended that Sessions Court did not become functus
officio under Section 362 of the Cr.P.C. as it is well settled
principle of law that same court which granted the bail is
entitled to cancel the bail on finding “new material or
circumstances” at any point of time. To buttress the said
contention, Learned ASG placed reliance upon the decision of
this court in Bhadresh Bipinbhai Sheth v. State of Gujarat
2
and Another . Learned ASG has also placed reliance on Abdul
Basit (supra) to contend that the said decision which has been
relied by the High Court under the Impugned Order to allow
the appeal, itself holds before a Court of Session which has
admitted an accused person to bail, the state has two options. It
may move to the Sessions Judge if certain new circumstances
have arisen which were not earlier known to the State to seek
cancellation to the same court and the State may as well
approach the High Court being the superior court under Section
439(2) to commit the accused to custody.
2
(2016) 1 SCC 152
SLP (Crl.) No. 7177 of 2024 Page 8 of 34
17. It is further submitted that there has been suppression of fact
that respondent was a Sri Lankan national which is a
supervening factor justifiable for seeking cancellation of bail
since such suppression is a clear attempt on the part of
respondent to avoid rigor of Section 43D (7) of UAP Act.
Reliance has been placed on Kusha Duruka v. State of
3
Odisha , whereby petitioner therein had obtained bail from
High Court without disclosing the fact that Special Leave
Petition for the same relief was pending before the Supreme
Court, as such, this court observed that “court is not a
laboratory where children come to play”, as such, in case of
suppression of material fact which was well within the special
knowledge of accused, he cannot be allowed to gain advantage
of the same in court of law and the order cannot be allowed to
stand.
18. It is also submitted that where a strong case for commission of
a non-bailable offence is made out from the chargesheet,
default bail granted under Section 167(2) can be cancelled.
Reliance has been placed on State through Central Bureau of
4
Investigation v. T Gangi Reddy Alias Yerra Gangi Reddy .
3
Criminal Appeal No. 303 of 2024
4
(2023) 4 SCC 253
SLP (Crl.) No. 7177 of 2024 Page 9 of 34
19. It is further submitted that respondent possesses a Sri Lankan
Passport bearing number MI 103657 is sufficient prima facie
evidence to establish that he is not an Indian National, as such,
the fact that respondent was earlier enjoying the benefit of bail
for four years cannot by itself be a ground for the High Court
to set aside the order of Sessions Court which had rightly
cancelled the bail upon finding that respondent was a foreign
national. As such, appellant has prayed for setting aside of the
Impugned Order.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
20. Per contra, Shri A Velan, learned counsel appearing on behalf
of the respondent vehemently opposed the appellant’s prayer
and submitted that trial court vide order dated 05.07.2018
granted statutory bail to the respondent as the chargesheet was
not filed within the prescribed period by the investigating
agency. The appellants had not filed an appeal against the grant
of statutory bail as such same had attained finality.
21. He has contended that High Court rightly observed that
appellant did not produce any independent material to establish
that respondent is a Sri Lankan national and he had entered the
country illegally. The respondent has placed reliance upon the
SLP (Crl.) No. 7177 of 2024 Page 10 of 34
documents such as voter ID issued by Election Commission of
India, Birth certificates issued by the Govt of Tamil Nadu,
Family Card and Aadhar Card of himself, his wife and their
children to content that he is a citizen of India.
22. He has placed reliance upon the decision of High Court dated
16.12.2024 in W.P. (MD) No. 19538 of 2021 whereby the
respondent was allowed to reside with his wife at his residence,
to contend that there exists no prima facie case that respondent
is a foreign national. It is further contended that said order has
also not been challenged in appeal, which has attained finality
and as such there is no merit in the contention raised by
appellant.
23. On Section 43D(7) UAP Act, it has been submitted that
stringent requirements for grant of bail to a foreign national has
to be strictly construed and burden of prima facie proof is on
the prosecution. However, in the present case, appellant did not
produce a speck of material to establish the factum of
nationality of the respondent. The claim of the appellant rests
on a pending proceeding in FIR No. 188 of 2019 solely on the
alleged confession of the respondent to the Village
Administrative Officer, which has no evidentiary value in the
SLP (Crl.) No. 7177 of 2024 Page 11 of 34
light of Section 25 of the Indian Evidence Act, 1872 (for short
“ Evidence Act ”).
24. It is also submitted that non-obstante clause in Section 43D(7)
of the UAP Act is restricted to sub-clause (5) and (6) of Section
43D and does not exclude the mandate of grant of default bail
as modified by Section 43D(2).
25. It is further submitted that bail cancellation must be based on
valid legal grounds such as the accused’s misconduct, violation
of bail conditions, or intimidation of witnesses, rather than on
premature and prejudicial findings on factual issues that are yet
to be adjudicated during trial, i.e., nationality of Respondent,
in the present case. To buttress the said contention, reliance is
placed on Samarendra Nath Bhattacharjee v. State of W.B.
5
and Another , whereunder it has been categorically held that
while considering bail conditions, court should refrain from
making premature factual determinations that may prejudice
the fair trial process.
26. It is also submitted that the cancellation of bail is not equivalent
to the initial rejection of bail, as it necessitates a review of an
already reasoned judicial determination. To buttress the said
5
(2004) 11 SCC 165
SLP (Crl.) No. 7177 of 2024 Page 12 of 34
contention, learned counsel has relied upon the law laid down
by this Court in State (Delhi Administration) v. Sanjay
6
Gandhi .
27.
Lastly, it has been contended that three grounds that appellant
predominantly relies upon are alleged suppression of Sri
Lankan Nationality, reviewability of bail orders by the granting
court and mandate of Section 43D(7) UAP Act which are
legally untenable. As such, he has prayed to dismiss the present
appeal.
FINDINGS AND REASONINGS
On interpretation and application of Section(s) 43D(2) and
43D(7) of UAP Act
28. As stated at the outset, the adjudication of present appeal
directly pertains to interpretation of Section 43D(7) UAP Act
and collaterally Section 43D(2). Hence, we deem it is apt and
appropriate to refer Section 43D of UAP Act and the same is
extracted hereinbelow for reference:
43D. Modified application of certain provisions of the
Code. —
(1) Notwithstanding anything contained in the Code
or any other law, every offence punishable under this Act
shall be deemed to be a cognizable offence within the
meaning of clause (c) of section 2 of the Code, and
6
(1978) 2 SCC 411
SLP (Crl.) No. 7177 of 2024 Page 13 of 34
“cognizable case” as defined in that clause shall be
construed accordingly.
(2) Section 167 of the Code shall apply in relation
to a case involving an offence punishable under this
Act subject to the modification that in sub-section
(2),—
(a) the references to “fifteen days”, “ninety days”
and “sixty days”, wherever they occur, shall be
construed as references to “thirty days”, “ninety days”
and “ninety days” respectively; and
(b) after the proviso, the following provisos shall be
inserted, namely:
“Provided further that if it is not possible to complete
the investigation within the said period of ninety days,
the Court may if it is satisfied with the report of the
Public Prosecutor indicating the progress of the
investigation and the specific reasons for the detention
of the accused beyond the said period of ninety days,
extend the said period up to one hundred and eighty
days:
Provided also that if the police officer making the
investigation under this Act, requests, for the purposes
of investigation, for police custody from judicial
custody of any person in judicial custody, he shall file
an affidavit stating the reasons for doing so and shall
also explain the delay, if any, for requesting such police
custody.
(3) Section 268 of the Code shall apply in relation to
a case involving an offence punishable under this Act
subject to the modification that—
(a) the reference in sub-section (1) thereof—
SLP (Crl.) No. 7177 of 2024 Page 14 of 34
(i) to “the State Government” shall be construed
as a reference to “the Central Government or
the State Government.”;
(ii) to “order of the State Government” shall be
construed as a reference to “order of the
Central Government or the State Government,
as the case may be”; and
(b) the reference in sub-section (2) thereof, to “the
State Government” shall be construed as a
reference to “the Central Government or the State
Government, as the case may be”.
(4) Nothing in section 438 of the Code shall apply in
relation to any case involving the arrest of any person
accused of having committed an offence punishable
under this Act.
(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters 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.
(6) The restrictions on granting of bail specified in
sub-section (5) is in addition to the restrictions under the
Code or any other law for the time being in force on
granting of bail.
(7) Notwithstanding anything contained in sub-
sections (5) and (6), no bail shall be granted to a person
accused of an offence punishable under this Act, if he
SLP (Crl.) No. 7177 of 2024 Page 15 of 34
is not an Indian citizen and has entered the country
unauthorisedly or illegally except in very exceptional
circumstances and for reasons to be recorded in
writing.
29. A bare perusal of the Section 43D reveals that it pertains to
modified application of certain provisions of Cr.P.C. Sub-
section (2) of Section 43D clearly mandates that Section 167
of Cr.P.C. will be applicable to offences punishable under the
UAP Act provided with modification that is, enhancement of
number of days required for completion of investigation, as
such, the maximum period mandated by the said sub-section
for completion of investigation pertaining to an offence
punishable under UAP Act is 90 days which is extendable to
the maximum period of 180 days subject to report of public
prosecutor and specific reason assigned for continuation of
detention as envisaged in the proviso, as such, undoubtedly
Section 167(2) of Cr.P.C. which pertains to default bail is
applicable to investigation of offences punishable under UAP
Act. It is trite law that where bail is granted under Section
167(2) Cr.P.C., it acts as deeming fiction whereby the release
of the accused person is equated to his release under Chapter
XXXIII of Cr.P.C. empowering the Courts to cancel the bail.
SLP (Crl.) No. 7177 of 2024 Page 16 of 34
30. Sub-section 43D(7) commences with a non-obstante clause
overriding the mandate envisaged under sub-sections (5) and
(6) of Section 43D and provides that “ no bail shall be granted
to a person accused of an offence punishable under UAP Act,
if he is not an Indian Citizen and has entered the country
unauthorizedly or illegally”. This happens to be the initial part
of sub-section (7) of Section 43D which indicates the
ingredients for its application, as such, it is pertinent to
enumerate these ingredients at the outset, which in our
considered view, are sine qua non for application of the said
sub-section:
a. First , the person needs to be an accused of an
offence punishable under the UAP Act;
b. Second , such person must not be an Indian Citizen;
and
c. Third , he must have entered India unauthorizedly
or illegally.
31. Thus, if these three conditions stand satisfied by the
prosecution prima facie, it appears that the court would be
barred from exercising jurisdiction in favour of grant of bail.
However, there is more to the said sub-section than meets the
eye. Pertinently, the legislature has explicitly used the
conjunction “and” between second and third condition as
SLP (Crl.) No. 7177 of 2024 Page 17 of 34
envisaged under the said sub-section, mandating a conjunctive
reading, therefore, merely because a person is not an Indian
Citizen will not suffice to trigger the rigors of sub-section (7)
of Section 43D rather the condition mandating “ at the time he
entered India ”, such entry must be either unauthorized or
illegal must also co-exist, therefore, a probable inference that
can be drawn herein is that where a foreign national enters
India under an authorization or through a legal process such as
a valid visa, mere fact that subsequently, such authorization is
revoked or the stay becomes illegal will not retroactively
convert a lawful entry into an “unauthorized or illegal entry”
warranting invocation of sub-section (7) of Section 43D and
what is required and necessary is that when such person entered
India initially such entrance itself was unauthorized or illegal.
Unless, these conditions are satisfied, the statutory bar under
Section 43D(7) cannot be invoked. Therefore, the prosecuting
agency will have to establish prima facie the aforesaid three
conditions to restrain the courts from exercising its jurisdiction
to grant bail to an accused of an offence punishable under UAP
Act who is a foreign national.
32. Though it appears that judicial discretion, once all conditions
are prima facie established, is absolutely barred by use of the
SLP (Crl.) No. 7177 of 2024 Page 18 of 34
expression “ no bail shall be granted ” by the legislature, the
latter part of sub-section (7) channels a narrow scope for
exercise of judicial discretion even when all the condition
discussed above stand fulfilled. The relevant part opening such
narrow window of judicial discretion is discernible through the
expressions “ except in very exceptional circumstances and
reasons to be recorded in writing” occurring in the latter part
of said sub-section. 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 ”. By the usage of said two expressions, again the
legislative intent is explicitly apparent that even though the
court is of the considered opinion that a foreign national, who
is an accused of an offence punishable under UAP Act, is
entitled for grant of bail unless there is an “exceptional
circumstances” that too is qualified by the word “very” which
warrants a standard extremely high showing a strong
exceptional circumstance, the court shall not exercise its
judicial discretion in favour of the accused person but even
SLP (Crl.) No. 7177 of 2024 Page 19 of 34
then where the court is of considered opinion to exercise such
discretion, it has to record reasons in writing explaining such
circumstances which warrants such exercise of judicial
discretion for grant of bail in favour of the accused person. The
burden of showing such “ very exceptional circumstances ” will
solely lie on the shoulders of the accused person which may
impel the courts to exercise the judicial discretion in favour of
grant of bail. What can be a “very exceptional circumstances”
would depend upon the facts and circumstances of each case
and there cannot be straight jacket formula or a pigeonhole to
exhaustively lay down those circumstances herein. Therefore,
we are of the considered view, that Section 43D(7) creates a
very high bar to be satisfied by the accused person once the
prosecution establishes prima facie ingredients of sub-section
(7) of Section 43D exists. The legislative intent warranting
such high threshold is primarily backed by considerations of
national security, larger public interest and sovereignty of
India.
Relevancy of Confession allegedly made by the respondent to
Village Administrative Officer, the complainant in FIR No. 188
of 2019
33. The High Court under the impugned order has recorded that
FIR No. 188 of 2019 alleging Sri Lankan nationality of the
SLP (Crl.) No. 7177 of 2024 Page 20 of 34
respondent was based on alleged confession given by the
respondent to the Village Administrative Officer and there was
no other independent material to establish that the respondent
was a Sri Lankan National. The relevant portion of the
impugned order is extracted herein below for reference:
That apart, the version of the respondent that the
appellant is a Sri Lankan national and had entered the
country illegally is based on an FIR registered by
Keelakarai Police Station in Crime No. 188 of 2019,
which in turn was registered on the alleged confession
given by the appellant to the Village Administrative
Officer. Admittedly, there is no Final Report in the said
FIR. The respondent also has no other independent
material to establish that the appellant is a Sri Lankan
national, and that he entered the country illegally.
34. The respondent has also submitted the claim of the appellant
rests on a pending proceeding in FIR No. 188 of 2019 solely
on the alleged confession of the respondent to the Village
Administrative Officer, which has no evidentiary value in the
light of Section 25 of the Evidence Act.
35. We are conscious of the fact that at stage consideration for
grant or cancellation of bail, the courts cannot conduct a mini
trial to appreciate the evidentiary value of each factual matrix,
and the exercise is confined to prima facie satisfaction which
makes the grant or cancellation of bail probable or improbable.
SLP (Crl.) No. 7177 of 2024 Page 21 of 34
36. Keeping the said principle in mind, when we consider the
prima facie veracity of the alleged confession made by the
respondent herein to the Village Administrative Officer, the
complainant in FIR No. 188 of 2019, we are of the considered
view that both the reasoning rendered by the High Court under
the impugned order and the submission of the respondent lack
merit. We say so because it is settled position of law by this
court through catena of decisions including Sivakumar v. State
7
by Inspector of Police , R. Kuppusamy v. State represented by
8
Inspector of Police, Ambeiligai , Baskaran and Another v.
9
State of Tamil Nadu and Kadamanian Alias Manikandan v.
10
State represented by Inspector of Police , that an extra-
judicial confession made to the Village Administrative Officer
who is not acting under the authority of a police officer is not
inadmissible under Section 25 of the Evidence Act
(corresponding to Section 23(1) of Bharatiya Sakshya
Adhiniyam, 2023) since a Village Administrative officer is not
a police officer for the purpose of Section 25 of Evidence Act.
Therefore, such confession is not hit by embargo contained
7
(2006) 1 SCC 714
8
(2013) 3 SCC 322
9
(2014) 5 SCC 765
10
(2016) 9 SCC 325
SLP (Crl.) No. 7177 of 2024 Page 22 of 34
under Section 25 subject to the court being satisfied as to its
voluntariness, truthfulness and credibility.
37. As such, prima facie we are of the considered view that alleged
confession tendered by the respondent to the complainant in
FIR No. 188 of 2019 holds some veracity and cannot be
brushed aside altogether. However, it is suffice to say that
probative value of such alleged confession has to be considered
by the trial court at relevant stage of appreciation of evidence
and our view is merely based on the prima facie satisfaction.
LEGAL PRINCIPLES ON CANCELLATION OF BAIL
38. It is settled principle of law that parameters of setting aside a
perverse or illegal order of grant of bail are different than those
of cancellation of bail. The scope of power of High Court to
cancel bail has been discussed by this Court in Gurcharan
11
Singh and Others v. State (Delhi Administration) , wherein
this court observed:
“16 . Section 439 of the new code confers special powers
on the High Court or Court of Session regarding bail.
This was also the position under section 498 CrPC of the
old Code. That is to say, even if a Magistrate refuses to
grant bail to an accused person, the High Court or the
Court of Session may order for grant of bail in
11
(1978) 1 SCC 118
SLP (Crl.) No. 7177 of 2024 Page 23 of 34
appropriate cases. Similarly under Section 439(2) of the
new Code, the High Court or the Court of Session may
direct any person who has been released on bail to be
arrested and committed to custody. In the old Code,
Section 498(2) was worded in somewhat different
language when it said that a High Court or Court of
Session may cause any person who has been admitted to
bail under sub-section (1) to be arrested and may commit
him to custody. In other words, under Section 498(2) of
the old Code, a person who had been admitted to bail by
the High Court could be committed to custody only by the
High Court. Similarly, if a person was admitted to bail by
a Court of Session, it was only the Court of Session that
could commit him to custody. This restriction upon the
power of entertainment of an application for committing
a person, already admitted to bail, to custody, is lifted in
the new Code under Section 439(2). Under Section 439(2)
of the new Code a High Court may commit a person
released on bail under Chapter XXXIII by any court
including the Court of Session to custody, if it thinks
appropriate to do so. It must, however, be made clear that
a Court of Session cannot cancel a bail which has already
been granted by the High Court unless new circumstances
arise during the progress of the trial after an accused
person has been admitted to bail by the High Court. If,
however, a Court of Session had admitted an accused
person to bail, the State has two options. It may move the
Session Judge if certain new circumstances have arisen
which were not earlier known to the State and necessarily,
therefore, to that Court. The State may as well approach
the High Court being the superior court under section
439(2) to commit the accused to custody. When, however,
the State is aggrieved by the order of the Sessions Judge
granting bail and there are no new circumstances that
SLP (Crl.) No. 7177 of 2024 Page 24 of 34
have cropped up except those already existed, it is futile
for the State to move the Sessions Judge again and it is
competent in law to move the High Court for cancellation
of the bail. This position follows from the subordinate
position of the Court of Session vis-à-vis the High Court.”
39. A two-Judge bench of this Court in Dolat Ram and Others v.
12
State of Haryana , laid down the grounds for cancellation of
bail as follows:
i. Interference or attempt to interfere with the due
course of administration of Justice.
ii. Evasion or attempt to evade the due course of
justice.
iii. Abuse of the concession granted to the accused in
any manner.
iv. Possibility of accused absconding
v. Likelihood of/actual misuse of bail
vi. Likelihood of the accused tampering with the
evidence or threatening witnesses.
40. This Court in Prakash Kadam and Others v. Ram Prasad
13
Vishwanath Gupta and Another , held that gravity of the
offence would also be taken into consideration and has further
held that:
“18. In considering whether to cancel the bail, the court
has also to consider the gravity and nature of the offence,
prima facie case against the accused, the position and
standing of the accused, etc. if there are serious
12
(1995) 1 SCC 349
13
(2011) 6 SCC 189
SLP (Crl.) No. 7177 of 2024 Page 25 of 34
allegations against the accused, his bail may be cancelled
even if he has not misused the bail granted to him.
19. In our opinion, there is no absolute rule that once bail
is granted to the accused then it can only be cancelled if
there is likelihood of misuse of bail. That factor, though
no doubt important, is not the only factor. There are
several other factors also which may be seen while
deciding to cancel the bail”
14
41. This Court in Abdul Basit v. Mohd. Kadir Chaudhary , while
relying upon Gurcharan Singh (supra ) has observed that:
“ 19. Therefore, the concept of setting aside an unjustified,
illegal or perverse order is different from the concept of
cancellation of a bail on the ground of accused’s
misconduct or new adverse facts having surfaced after the
grant of bail which require such cancellation and a
perusal of the aforesaid decisions would present before us
that an order granting bail can only be set aside on
grounds of being illegal or contrary to law by the court
superior to the court which granted the bail and not by
the same court.”
42. This Court again in Neeru Yadav v. State of Uttar Pradesh and
15
Another , examined the precedents pertaining to principles on
cancellation of bail and observed that:
“ 12 ….It is well settled in law that cancellation of bail
after it is granted because the accused has misconducted
himself or of some supervening circumstances warranting
14
(2014) 10 SCC 754
15
(2014) 16 SCC 508
SLP (Crl.) No. 7177 of 2024 Page 26 of 34
such cancellation have occurred is in a different
compartment altogether than an order granting bail
which is unjustified, illegal and perverse. If in a case, the
relevant factors which should have been taken into
consideration while dealing with the application for bail
and have not been taken note of bail or it is founded on
irrelevant considerations, indisputably the superior court
can be set aside the order of such a grant of bail. While
dealing with a case of second nature, the court does not
dwell upon the violation of conditions by the accused or
the supervening circumstances that have happened
subsequently. It, on the contrary, delves into the
justifiability and the soundness of the order passed by the
Court”
43. A three-Judge bench of this Court in Deepak Yadav v. State of
16
Uttar Pradesh and Another , held that cancellation of bail
cannot be limited to the occurrence of supervening
circumstances and observed:
“33. It is no doubt true that cancellation of bail cannot be
limited to the occurrence of supervening circumstances.
This Court certainly has the inherent powers and
discretion to cancel the bail of an accused even in the
absence of supervening circumstances. Following are the
illustrative circumstances where the bail can be cancelled:
33.1. Where the court granting bail takes into account
irrelevant material of substantial nature and not trivial
nature while ignoring relevant material on record.
33.2. Where the court granting bail overlooks the
influential position of the accused in comparison to the
16
(2022) 8 SCC 559
SLP (Crl.) No. 7177 of 2024 Page 27 of 34
victim of abuse or the witnesses especially when there is
prima facie misuse of position and power over the victim.
33.3. Where the past criminal record and conduct of the
accused is completely ignored while granting bail.
33.4. Where bail has been granted on untenable grounds.
33.5. Where serious discrepancies are found in the order
granting bail thereby causing prejudice to justice.
33.6. Where the grant of bail was not appropriate in the
first place given the very serious nature of the charges
against the accused which disentitles him for bail and thus
cannot be justified.
33.7. When the order granting bail is apparently
whimsical, capricious and perverse in the facts of the
given case.”
17
44. In State of Karnataka v. Sri Darshan and Others , and
Yogendra Pal Singh v. Raghvendra Singh alias Prince and
18
Another , this Court authoritatively held that cancellation of
bail on account of post-bail misconduct stands on a
fundamentally different footing from annulment of a bail order
which is itself unjustified or legally unsustainable at its
inception. An order granting bail is liable to be interfered with
where it reveals reliance on irrelevant considerations, ignores
relevant material, or suffers from perversity without the
necessity of waiting for supervening circumstances.
17
(2025) SCC OnLine SC 1702
18
(2025) SCC OnLine SC 2580
SLP (Crl.) No. 7177 of 2024 Page 28 of 34
19
45. In Zeba Khan v. State of U.P. & Others , this Court again
while considering the legal principles of governing
annulment/cancellation of bail observed:
“ 18 .Equally well-settled is the distinction between an
appeal against an order granting bail and an application
seeking cancellation of bail founded on post-bail conduct
or supervening circumstances. In an appeal against the
grant of bail, the focus of judicial scrutiny is the legality,
propriety, and sustainability of the bail order as it stood
at the time of its grant. Where such an order is shown to
suffer from non-application of mind, reliance on disputed
or prima facie suspect material forming the subject-
matter of trial, suppression or non-consideration of
material facts, or disregard of binding legal principles,
annulment of the bail order is not only permissible but
warranted in order to avert a miscarriage of justice.
19. Accordingly, where a bail order is demonstrated to be
legally untenable or fundamentally perverse, interference
by the appellate court is not an exception, but a judicial
imperative. Such interference does not trench upon the
sanctity of personal liberty; rather, it subserves the rule
of law by ensuring that discretionary relief is granted in
conformity with settled legal standards and that the
administration of criminal justice is not undermined by
arbitrary or capricious orders.”
46. Through the catena of decisions discussed above, it is apt and
appropriate to note that it is well-settled proposition of law that
19
(2026) SCC OnLine SC 188
SLP (Crl.) No. 7177 of 2024 Page 29 of 34
there is distinction between the consideration of factors while
adjudicating an appeal against the order of grant of bail and an
application for cancellation of bail. In an appeal, the Courts
have to see whether the order granting bail suffers from any
perversity or has been passed without due application of mind
or on irrelevant considerations and in such a case the appellate
court would be justified to interfere with the order of grant of
bail. Whereas in an application for cancellation of bail, the
considerations are entirely different, namely the Courts will
have to bear in mind that bail has already been granted, the
judicial discretion has been exercised in favour of accused’s
liberty which holds substantial constitutional value, the courts
will have to be cautious while subsequently exercising the
discretion cancelling the bail and where the Courts form an
opinion that such discretion ought to be exercised it necessarily
has to be based on some supervening circumstance which
demands that if such discretion is not exercised it would tend
to impair a fair trial. Such circumstances may include the
violation of bail conditions through post-bail conduct of the
accused person or discovery of some material fact which was
suppressed during the time of grant of bail of such nature which
would have refrained the court from exercising its imprimatur
SLP (Crl.) No. 7177 of 2024 Page 30 of 34
in favour grant of bail to the accused person. Even when there
is no such supervening circumstance, this court has held in
Deepak Yadav (supra) 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 jeopardise.
47. As such, when we consider the submissions made by the
learned counsel on behalf of the appellant, in the light of settled
position of law, we do not find merit on the contention that
Section 43D(7) of UAP would be applicable to the respondent.
At the cost of repetition, we are of the considered view that
subsequent revocation of authorization or stay becoming
illegal won’t attract the rigors of sub-section (7) of Section 43D
and it is apposite that initially entry itself should’ve been
unauthorized or illegal. The appellant has failed to place any
material on record to prima facie establish the entry as
unauthorized or illegal. Even the allegations in subsequent FIR
SLP (Crl.) No. 7177 of 2024 Page 31 of 34
No. 188 of 2019 records that respondent 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 prosecution
under the Foreigner Act has been invoked for the same. We do
not propose to enter into further discussion on this issue, as said
issue is pending adjudication.
48. The appellant has contended that conduct of the respondent in
not disclosing the fact of his nationality amounts to suppression
of material fact which would have refrained the Sessions Court
from granting the bail vide order dated 05.07.2018. We are not
convinced by the said submission, since we cannot lose sight
of the fact that respondent was granted statutory bail under
Section 167(2) Cr.P.C. due to non-filing of the chargesheet.
Therefore, bail was granted to respondent as a matter of right
and in the light of Section 43D(2) which enables the
application of Section 167(2) Cr.P.C. to UAP Act, we fail to
understand that even if sub-section (7) of Section 43D would
have been attracted how it would whittle down the mandate of
Section 43D(2) since the overriding effect of sub-section (7) of
Section 43D is confined to sub-sections (5) and (6) of Section
43D and not sub-section (2), as such, it does not bar the grant
of statutory bail.
SLP (Crl.) No. 7177 of 2024 Page 32 of 34
49. The appellant relied upon State v. T Ganga Reddy (supra) to
contend that even when a statutory bail is granted since such
bail is not granted on merit, the courts have power to cancel the
bail subsequently on filing of chargesheet. We fail to agree
with said contention. What State v. T Ganga Reddy (supra)
mandated was not a mechanical exercise of cancellation of bail
after filing of chargesheet rather it was held that such
cancellation can be made on making out a special and strong
ground that commission of non-bailable crime is disclosed
from the chargesheet. No special and strong ground has been
made out for cancellation of bail. Rather, the bail was granted
in 05.07.2018 under Section 167(2) Cr.P.C., the chargesheet in
the subject case was filed on 23.01.2021 and application
seeking cancellation of bail was moved on 29.04.2022. Even
condoning the period from 06.07.2018 to 23.01.2021, nothing
has been placed on record to explain the delay in approaching
the court seeking cancellation of bail from 24.01.2021 to
28.04.2022. If the appellant was of the view that chargesheet
disclosed commission of non-bailable offence against the
respondent which demanded cancellation of bail granted on
05.07.2018, what prompted the appellant not to approach the
court for approximately a year seeking cancellation of bail has
SLP (Crl.) No. 7177 of 2024 Page 33 of 34
remained unanswered. The appellant in IA No. 203232/2026
though attempted to explain that from 29.11.2019 to
25.01.2022 they were occupied in verification of respondent’s
nationality from official immigration records to invoke Section
43D(7) of UAP, we are not satisfied with said reasoning or
explanation.
CONCLUSION
50. 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
12.12.2023 passed by the Madras High Court in Criminal
Appeal No. 1000 of 2022 stands affirmed.
51. Pending Applications, if any, stand consigned to record.
………...........................................J.
[ARAVIND KUMAR]
.………...........................................J.
[VIPUL M. PANCHOLI]
NEW DELHI;
th
OCTOBER 27 , 2026.
SLP (Crl.) No. 7177 of 2024 Page 34 of 34