The Conundrum Of Bail Or Jail Under UAPA

Vivek Tripathi, LL.M. (Criminal Law), 2023-224, Amity Law School, Lucknow.

Prof. (Dr.) Jay Prakash Yadav, Director, Amity Law School, Lucknow.

ABSTRACT

The criminal jurisprudence necessitates that the appearance of an accused must be secured at the trial at all given times. For this purpose, the provision of arrest and detention has been mandated by the legislature. However, an arrest/detention strikes at a person’s liberty, as such in cases wherethe appearance can be ensured reasonably otherwise, then depriving such individual of his libertywould be unjust and unfair. It is thus judicious to release that accused on bail with an undertakingof his appearance at the designated time and place. This release not only ensures against the societal demands for protection against any hazard but also safeguards the rights of the accused itself. Bailis, therefore, crucial and should be granted as a rule, while jail must be the exception.

This otherwise laudable approach is however not practicable for all offences. Grave and serious offences such as those relating to Terrorism, Money laundering, etc. have larger ramifications on people at large, thus releasing the accused on bail in such cases becomes difficult. These offencesin such understanding stand as a different class and as such need to be dealt more severely than a regular offence.

The Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as ‘UAPA’), which deals with anti-terror activities, is one such legislation that lays down stringent provisions and requires the courts to exercise a far stricter approach and measure all the competing forces in the case beforeenlarging an accused on bail. Section 43D (5) of UAPA makes the grant of bail to an accused an extremely difficult task if reasonable grounds establishing a prima facie case against such accusedis present in the opinion of the court after perusing the case diary and police report. Interpreting this provision, recently, in Gurwinder Singh v. State of Punjab & another a two-bench of the Hon’ble Supreme Court held that the bail provision under UAPA is restrictive in its scope, and thus the tilt of the courts in such cases must be against the grant of bail as the rule. This line of judgement departs from the principle followed by the Hon’ble Court in the cases of Shaheen Welfare Association and K.A.Najeeb. The instant therefore paper seeks to analyze the competing trends of granting bail under the UAPAand the implications, if any, it possesses on the rights of accused.

Keywords: Bail, UAPA, Arbitrary, Arrests, Liberty.