UAPA accused granted bail after over five years in custody as trial remains far from conclusion

The appellant, charged under Section 121 IPC and Sections 17, 18, 39 and 40 of the UAPA, was alleged to have participated in an ISIS-affiliated terrorist conspiracy and to have provided funds for its activities.

The prosecution relied on electronic chats, a co-accused’s disclosure and a cash recovery, and witness statements.

The Special Court rejected his bail application on 29 May 2024.

In appeal under Section 21(4) of the NIA Act, the appellant relied on more than five years’ custody, the slow progress of the trial, and evidence recorded after the impugned order; the prosecution opposed consideration of the later evidence and relied on the UAPA bail restriction.

At the time of the appeal, evidence of only 42 of 161 cited witnesses had been recorded.

1. Whether the appellant should be released on bail under the UAPA in light of his prolonged custody, the anticipated duration of the trial, and the material attributed to him.

2. Whether the appellate court could consider witness evidence recorded after the Special Court’s rejection of bail.

Section 21(4) of the NIA Act provides the appellate jurisdiction invoked in this appeal; Section 43D(5) of the UAPA restricts bail where the prosecution material makes the accusation prima facie true, but does not exclude constitutional courts’ power to grant bail where continued detention raises concerns under Article 21, including an unreasonable delay in trial (*Union of India v. K.A. Najeeb*).

The inquiry under Section 43D(5) must be accused-specific and assess whether the prosecution material, taken at face value, discloses the statutory ingredients and a meaningful nexus between the accused’s role and the prohibited activity; it is not a mini-trial (*Gulfisha Fatima*).

The delay inquiry is contextual, taking account of factors including the allegations, stage and likely trajectory of the trial, causes of delay, individual role, and risks on release; delay alone is not an automatic ground for bail.

An appellate court may consider relevant developments arising after the order under appeal, including later evidence, where the circumstances justify doing so (*Shoma Kanti Sen v. State of Maharashtra*).

The Court considered the appellant’s custody of more than five years alongside the trial’s progress—only 42 of 161 witnesses had been examined—and concluded that the trial was unlikely to finish soon.

It found no present positive evidence that the chats relied on by the prosecution originated from or were addressed to the appellant; the prosecution said the connection would be established through witness evidence and material concerning a co-accused.

Having reviewed the testimony of two examined witnesses and the statement under Section 161 Cr.P.C. of a third cited witness, the Court concluded, without making a final assessment of the evidence, that the appellant should not remain in custody pending a trial unlikely to conclude soon.

It rejected the prosecution’s objection to considering post-order evidence, noting that the appeal had been adjourned to allow relevant witnesses to be examined and that the appellate court could consider subsequent developments.

It clarified that its observations were confined to the bail decision and did not express a view on the merits of the trial.