UAPA bail: Madras High Court says courts must weigh accused’s role, custody period and trial pace against Article 21, denies lodge manager relief

The appellant was arrested on 14.11.2024 and remanded to custody on 15.11.2024 for offences under Sections 341, 294(b), 307, 120B, 143, 147, 148 and 302 read with Section 149 of the IPC, and Sections 15 read with 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”).

He was arrayed as A19 in the supplementary charge-sheet filed on 09.05.2025.

The prosecution case arose from the alleged murder of Ramalingam on 05.02.2019 following disputes concerning the religious propagation and dawah activities of certain accused persons.

The appellant’s specific role was allegedly to harbour three proclaimed offenders—A12, A13 and A15—in forest areas near Kodaikanal and at Poombarai Cottage, a lodge which he had leased and managed.

The prosecution relied on protected-witness testimony, call-detail records, digital devices seized from the appellant, and allegations that the appellant facilitated accommodation, concealment, false identities and mobile connections for the proclaimed offenders.

The Special Court rejected his bail application in Crl.M.P. No.176 of 2025 dated 09.06.2025.

The appellant challenged that order under Section 21(4) of the National Investigation Agency Act, 2008.

At the time of consideration, he had been in custody for approximately one year and nine months; the supplementary charge-sheet contained 59 prosecution witnesses, charges had not yet been framed, and the trial was not progressing expeditiously.

Whether the material collected by the prosecution disclosed reasonable grounds for believing that the accusation against the appellant under Sections 19 and other relevant provisions of the UAPA was prima facie true, thereby attracting the bail restriction under Section 43D(5) of the UAPA?

Whether the appellant was entitled to bail under Article 21 of the Constitution on the ground of prolonged incarceration and the unlikely completion of trial within a reasonable time, notwithstanding the statutory embargo under Section 43D(5) of the UAPA?

Whether the appellant was entitled to bail on the ground of parity with a co-accused who had earlier been granted bail?

Section 43D(5) of the UAPA restricts the grant of bail where, after hearing the Public Prosecutor and perusing the case diary or Section 173 report, the Court finds reasonable grounds for believing that the accusation is prima facie true.

Section 19 of the UAPA penalises voluntarily and knowingly harbouring or concealing a person while knowing that such person is a terrorist; the provision incorporates the essential elements of knowledge and concealment/harbouring.

Under National Investigation Agency v. Zahoor Ahmad Shah Watali, the Court must assess the prosecution material as a whole and apply a prima-facie standard lower than that applicable at the stage of discharge or framing of charges.

Under Union of India v. K.A. Najeeb, the statutory restriction under Section 43D(5) does not exclude the constitutional power of superior courts to grant bail where prolonged incarceration and delayed trial result in a violation of Article 21; however, mere passage of time does not automatically entitle an accused to bail.

The Court also considered the approach in Gurwinder Singh v. State of Punjab, Syed Iftikhar Andrabi v. NIA, and Suhail Ahmad Thokar v. NIA concerning the interaction between the prima-facie standard, prolonged incarceration, trial delay and constitutional liberty.

The Court found prima facie material connecting the appellant with the proclaimed offenders.

The evidence indicated that he was in frequent contact with them, facilitated their stay in forest locations and at his lodge, provided or arranged necessities, assisted with mobile connections, and concealed their identities through the use of false names.

The Court held that these circumstances went beyond mere ownership or management of the lodge and prima facie amounted to harbouring under Section 19 of the UAPA.

The fact that the proclaimed offenders were not named in the Fourth Schedule and that their status as terrorists had not been finally adjudicated did not, at the bail stage, defeat the prosecution case; accepting that contention would undermine the operation of Section 43D(5).

Although the Court recognised that the appellant had undergone approximately one year and nine months of incarceration and that the trial was delayed, it held that the period of custody, the number of witnesses and the pace of trial had to be assessed together with the appellant’s alleged role and the prima facie evidence against him.

The Court did not find the circumstances sufficiently comparable to K.A. Najeeb or the other cases where bail had been granted after substantially longer incarceration or in materially different factual circumstances.

Parity was also rejected because the co-accused relied upon had a substantially different and lesser alleged role, with no comparable material indicating prior knowledge or continuing assistance to the offenders.

While prolonged incarceration and trial delay are relevant Article 21 considerations, the circumstances of the present case did not warrant constitutional intervention at that stage.

The claim of parity was likewise rejected because the appellant’s alleged role was materially distinguishable from that of the co-accused who had obtained bail.

The criminal appeal was dismissed, and the order of the Special Court rejecting bail was affirmed. No order as to costs was made.