Section 43-D(5) UAPA’s bail bar does not apply to offences under Sections 10 and 13.

Information was received by Police Station Bijbehara on 23 March 2024 alleging that leaders and members of the Muslim Conference, J&K—Sumji Faction, led by the respondent, were continuing activities of an organisation declared unlawful and were provoking youth to agitate for the secession of Jammu and Kashmir from India. FIR No. 54/2024 was registered under Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), and Sections 121 and 121-A IPC. A search of the respondent’s premises allegedly resulted in the recovery of documents and organisational material, and witness statements were recorded.

The respondent was arrested on 18 November 2025. The Special Judge designated under the UAPA granted him interim bail on 6 December 2025 and made it absolute on 29 December 2025, subject to conditions concerning cooperation with investigation, non-tampering with evidence, and non-misuse of liberty.

The Union Territory challenged the bail orders under Section 21(4) of the National Investigation Agency Act, 2008, contending that the Trial Court had undervalued the recovered material, conducted a mini-trial, and failed to account for the seriousness of the allegations and the respondent’s alleged previous abscondence.

1. Whether the Trial Court erred in granting and subsequently confirming bail to the respondent despite the allegations under Sections 10 and 13 UAPA and Sections 121 and 121-A IPC.

2. Whether the statutory bar under Section 43-D(5) UAPA applied to the respondent’s case.

3. Whether the Trial Court exceeded the permissible scope of bail adjudication by assessing the prosecution material and concluding that there were no reasonable grounds for believing in the respondent’s involvement.

4. Whether the respondent’s age, medical condition, compliance with bail conditions, and the absence of material showing tampering or evasion justified continuation of bail.

The Court applied Section 21(4) of the National Investigation Agency Act, 2008, governing appeals against bail orders in specified cases.

It held that Section 43-D(5) UAPA imposes an additional restriction on bail only where the accused is charged with offences under Chapters IV or VI of the UAPA and the accusation appears prima facie true; Section 43-D(6) makes those restrictions supplementary to the ordinary bail restrictions under the Code or other law.

Sections 10 and 13 UAPA fall under Chapter III and therefore do not attract the Section 43-D(5) embargo.

The ordinary principles under Sections 437 and 439 CrPC, corresponding to Sections 480 and 483 BNSS, remain applicable, including the restriction concerning offences punishable with death or imprisonment for life in the alternative.

“Prima facie true” means more than mere suspicion but less than proof, and bail courts must not conduct a preliminary trial or determine guilt or innocence.

The Court also relied on Gur Baksh Singh v. State of Punjab, AIR 1980 SC 1632, for the principle that bail depends on the cumulative facts and circumstances, particularly the likelihood of the accused appearing for trial and avoiding interference with witnesses or the administration of justice.

Bail discretion must be exercised judiciously, balancing individual liberty against societal interests, with attention to witness tampering, obstruction of investigation, and subversion of the judicial process.

The Court found no illegality or perversity in the Trial Court’s approach. Since the offences under Sections 10 and 13 UAPA were within Chapter III, the statutory embargo under Section 43-D(5) was inapplicable.

Although Sections 121 and 121-A IPC were initially included in the FIR, the investigating agency subsequently dropped those offences, and the Trial Court had independently found no reasonable grounds for the respondent’s involvement in them.

The High Court held that the Trial Court’s assessment of the material for the limited purpose of bail did not amount to a mini-trial, particularly because the Trial Court expressly preserved the prosecution’s right to seek cancellation of bail in case of breach.

The respondent had complied with the interim bail conditions, and no adverse material was placed before the Trial Court indicating tampering, misuse of liberty, or evasion during the interim period.

The conditions imposed—personal and surety bonds, cooperation with investigation, and restraint against tampering or misuse—were considered sufficient to address the prosecution’s apprehensions.

The seriousness of the allegations alone could not justify pre-trial incarceration where the statutory bar was inapplicable and the ordinary bail considerations favoured release.

The Trial Court had not conducted an impermissible mini-trial or acted perversely in granting bail.

Finding no illegality in the orders dated 6 December 2025 and 29 December 2025, the Court dismissed the appeal and allowed the respondent to remain on bail subject to the conditions imposed by the Trial Court.