Being a foreign national is not enough to deny bail under UAPA

In a significant judgment, the Supreme Court has stated that bail cannot be denied in cases under the UAPA merely because an individual is a foreign national. The Court clarified that if a foreign national has entered India legally and through authorised means, they may be entitled to obtain bail under the UAPA. Along with this, the Supreme Court upheld the decision of the Madras High Court which had ordered the grant of bail to Sri Lankan national Mohammed Rifas.

A bench of Justice Arvind Kumar and Justice Vipul M. Pancholi dismissed the appeal of the Central Government. The Court noted that the National Investigation Agency (NIA) has not produced any evidence to prove that the accused, Mohammed Rifas, had entered India's borders illegally. The Court stated that if a foreign national comes to India with a valid visa, they cannot be deprived of bail under Section 43D(7) of the UAPA merely because the visa expired or their stay subsequently became illegal.

The conditions for granting bail under Section 43D(7) of the UAPA are very stringent. This section applies when the accused is charged with an offence under the UAPA, is not an Indian citizen, and has entered India's borders in an unauthorised or illegal manner. The Supreme Court observed that it is necessary for the prosecution to prima facie prove that the accused is not an Indian citizen and that their initial entry into India was unauthorised. These two conditions are interconnected because the word 'and' has been used in the law, which means that both conditions must be fully met to deny bail.

The main accused in this case, Mohammed Rifas alias Mohammed Rigbas, is a Sri Lankan national. According to the NIA, he entered India on a valid visa in the year 2009, but continued to stay here even after the visa expired. He is accused of spreading tension among religious communities, conspiring against the government, and creating fake voter ID, Aadhaar cards, and ration cards. The investigating agency also alleged that he obtained documents associated with Indian identity and had also married here.

This case originated from an FIR registered in Tamil Nadu in April 2018, which contained allegations of a conspiracy to create communal imbalance and engage in armed struggle against the government involving Rifas and others. In July 2018, as the investigating agency failed to file the chargesheet within the prescribed timeframe, the trial court granted him 'default bail'. Subsequently, the NIA took over the investigation and filed the chargesheet in January 2021. A separate FIR was also registered in November 2019, alleging that Rifas had obtained Indian documents by concealing his foreign citizenship.

The Central Government argued that Rifas had concealed his Sri Lankan citizenship while obtaining bail, and therefore his bail should be cancelled. In April 2022, the Central Government filed an application in the trial court to cancel the bail. In July 2022, the Special Court accepted the government's argument and cancelled the bail, but in December 2023, the Madras High Court overturned the trial court's order and reinstated the bail. The Central Government approached the Supreme Court against this very decision.

The Supreme Court also dismissed the Centre's argument that concealing citizenship is sufficient ground for cancelling bail. The Court emphasised that Rifas was legally entitled to 'default bail', which is granted under Section 167(2) of the CrPC, and this right also applies to UAPA cases through Section 43D(2) of the UAPA. The Court clarified that the restrictive conditions of Section 43D(7) cannot override the legal right to obtain default bail.

Furthermore, the Court noted that although the chargesheet was submitted in January 2021, the application to cancel bail was made in April 2022, and the government could not provide a satisfactory reason for this delay. The Court also clarified that there is a difference between the power to cancel bail and the power to set aside an order granting bail. Bail can be cancelled based on conduct after bail is granted or due to new circumstances, but if the original bail order is legally unstable or irrelevant, an upper court can interfere in it. However, such power must be exercised cautiously and only on the basis of solid reasoning, as the constitutional value of individual liberty is much higher.

Highlighting the importance of Section 43D(7), the Court said that this provision has been made keeping in view national security, public interest, and the sovereignty of India. To grant bail under this section, there must be very exceptional circumstances, and the reasons must be recorded in writing. The burden of obtaining bail under this section lies on the accused. However, these strict provisions apply only when the entry is illegal, which could not be proved in this case. Ultimately, finding no merit in the Centre's appeal, the Supreme Court upheld the order of the Madras High Court.