UAPA Accused’s Default Bail Stands: Overstaying a Valid Visa Alone Does Not Trigger Section 43D(7), Supreme Court Holds

The respondent was charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA), among other provisions.

On 5 July 2018, the Sessions Court granted him default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC), because the chargesheet had not been filed within the prescribed period.

The NIA later filed a chargesheet.

In 2019, a separate FIR alleged that the respondent was a Sri Lankan national who had entered India on a valid visa but overstayed and obtained Indian identity documents.

The Union of India applied in 2022 to cancel his bail, relying on Section 43D(7) of the UAPA and alleging that he had suppressed his nationality.

The Trial Court cancelled bail, but the Madras High Court set that order aside.

The Union appealed to the Supreme Court.

Section 43D(2) of the UAPA applies Section 167(2) CrPC to UAPA cases, with the UAPA’s extended investigation periods, and preserves the right to default bail when the statutory requirements are met.

Section 43D(7) bars bail where the accused is a non-Indian citizen and entered India unauthorisedly or illegally; those conditions are conjunctive, and the provision’s exception permits bail only in very exceptional circumstances for reasons recorded in writing.

Its non obstante clause overrides Sections 43D(5) and (6), not Section 43D(2), and therefore does not displace default bail.

Under Gurcharan Singh v. State (Delhi Administration) and Abdul Basit v. Mohd. Kadir Chaudhary, a court may cancel bail for new circumstances, while a superior court may set aside an illegal or perverse bail order.

Dolat Ram v. State of Haryana identifies grounds such as interference with justice, absconding, or misuse of bail; Deepak Yadav v. State of Uttar Pradesh confirms that bail may also be cancelled where the original order is legally unsustainable, but the power must be exercised cautiously.

An extra-judicial confession to a Village Administrative Officer is not, for that reason alone, barred by Section 25 of the Evidence Act, subject to assessment of its voluntariness and credibility.

The Court held that Section 43D(7) required prima facie material both that the respondent was not an Indian citizen and that his initial entry into India was unauthorised or illegal.

The material relied on alleged that he entered on a valid visa and that his stay became illegal only after the visa expired; that did not establish the required illegal entry.

Although the alleged confession to the Village Administrative Officer could not be dismissed solely under Section 25 of the Evidence Act, its probative value remained for trial and it did not establish illegal entry at the bail stage.

Further, the respondent had received default bail under Section 167(2), and Section 43D(7) did not override that statutory entitlement.

The Union also failed to show a special and strong ground for cancellation after the chargesheet was filed, or adequately explain its delay in seeking cancellation.

Finding no sufficient ground to cancel the bail, the Court dismissed the appeal and affirmed the Madras High Court’s order.