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What is UAPA?

Unlawful Activities Prevention Act, 1967 was enacted as legislation to deter terrorism in the country. Since then. It has been several times to keep it alive with the changing times and to toughen the provisions from time to time. The ordinary legal procedure isn’t followed under this act and instead, to deal with terrorists, it has its own stringent procedure where the safeguards provided to an individual by the constitution are truncated. The provisions of the POTA act, 2002 (Prevention of Terrorism Act), which was repealed in the year 2004, were added to this legislation through an amendment in 2004 itself. The definition of a terrorist is given under Section 15 of this act. The act was again amended thrice, in 2008, 2013, and 2019. Not only a citizen but also a foreigner can be charged under this act. According to National Crime Records Bureau (NCRB), during the period from 2016 to 2019, around 4231 FIRs were filed under various provisions of the UAPA, of which, 112 cases have resulted in a conviction if an individual.

What is Anticipatory Bail?

Section 438 of the CrPC, 1973 defines anticipatory bail as “When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offense, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail.” In the case of Badresh Bipinbai Seth vs the State of Gujarat , not granting anticipatory bail to an individual may abridge the fundamental right to life and personal liberty of that person under Article 21. The apex court in the case of Sushila Aggarwal & Ors. Vs. State (NCT of Delhi) held that the bail provided under this sec 438 CrPC should not be granted under a time limit except in some unique cases. The object behind this provision is to protect the liberty enjoyed by individuals although the language used in the section can definitely be used as a loophole as it confers substantive powers of discretion with the judges to grant bail.

Is Anticipatory bail application maintainable under UAPA?

In 2008, the restrictions on the grant of bail were inserted. The chances of the individuals getting bail under this act are made grim through sections 43D(4) and 43D(5) of the UAPA. Section 43D(4) hinders the application of section 438 of the CrPC, which deals with the anticipatory bail, to an individual charged under this Act. This asserts that a person charged under this legislation CAN NOT take recourse to Anticipatory Bail provisions and thus, the application for the same is not maintainable.

The Supreme court in the case of State of Rajasthan vs Balchand alias Baliya laid a legal doctrine “Bail is a rule, jail is an exception”. The doctrine was given by Justice v. Krishna Aiyar. This principle is overridden by this Act as there are very stringent laws for granting a normal bail and is usually not provided easily. Section 43D(5) provides that a person cannot be granted bail if the court finds some reasonable basis to believe that the accusations made against him are prima facie true. In the case of NIA vs Zahoor Ahmad Shah Watali , the standards for this requirement for prima facie true accusations were laid down.

The factors that should be taken into account while deciding upon the bail applications were summarised in the case of State through CBI vs Amaramani Tripathi . Section 43D(5) of this act is only applicable when offenses related to terrorism are committed. In the case of Jayant Kumar Ghosh vs the State of Assam , it was held that reasonable grounds should consider a probable cause for believing that the accused is guilty of committing such offense. Hence, reasonable grounds need something more than mere apprehension. The case of Martin Burn Ltd. Vs RN Banerjee defines the terms ‘prima facie’ and ‘true’ used in section 43D(5). Thus, it can be easily concluded at getting bail under the section is quite tougher than in other criminal legislations.

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