UAPA Bail: Section 43D(7) Applies Only If Foreign National’s Entry Into India Was Illegal, Says Supreme Court

The Supreme Court has held that the statutory bar under Section 43D(7) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) preventing bail to a foreign national applies only when the person’s initial entry into India was unauthorised or illegal.

Section 43D(7) of the UAPA provides that a foreign national accused of an offence under the Act, who has entered India without authorisation or illegally, cannot ordinarily be granted bail, except in very exceptional circumstances, with the court recording reasons for doing so in writing.

A Bench of Justices Aravind Kumar and Vipul M Pancholi held that where a foreign national enters India lawfully, such as on a valid visa, but his stay subsequently becomes unauthorised or illegal, that subsequent illegality does not trigger the specific bail bar under Section 43D(7) of the UAPA.

Court dismissed an appeal filed by the Union government against the Madras High Court’s December 12, 2023 judgment, which had set aside an order of the special court dated July 5, 2022 cancelling the bail granted to Mohamed Rifas alias Mohamed Rigbas.

When does Section 43D(7) of UAPA bar bail to a foreign national?

The Bench held that three conditions must prima facie be established by the prosecution for Section 43D(7) to apply: the person must be accused of an offence punishable under the UAPA, must not be an Indian citizen, and must have entered India unauthorisedly or illegally.

Court said these conditions are cumulative. Therefore, merely establishing that an accused is a foreign national is not enough to attract the statutory bar. The prosecution must also prima facie establish that his entry into India itself was unauthorised or illegal.

"Subsequent revocation of authorization or stay becoming illegal won’t attract the rigors of sub-section (7) of Section 43D," the Bench said, adding that the initial entry itself must have been unauthorised or illegal.

Court noted that, in the present case, the subsequent FIR itself recorded that Rifas had entered India through a valid visa and that his stay became illegal only after the expiry of the visa.

The Bench said Section 43D(7) creates a "very high bar" for an accused once the prosecution establishes its ingredients, with the legislative intent being rooted in national security, public interest and the sovereignty of India.

Case background

Rifas was one of the accused in FIR No. 46/2018 registered at Keelakarai police station in Tamil Nadu on April 2, 2018 for offences under Sections 153A and 120B of the Indian Penal Code [BNS Sections 196 and 61(2)], Sections 15, 17, 18, 19 and 20 of the UAPA and Section 25(1)(a) of the Arms Act, 1959.

The case alleged a conspiracy to create disharmony between religious communities.

On July 5, 2018, Rifas was granted statutory bail under Section 167(2) of the Code of Criminal Procedure, 1973 (BNSS Section 187(3)), after the investigating agency failed to file the chargesheet within the stipulated period.

The case was subsequently transferred to the National Investigation Agency (NIA) in 2019.

A second FIR was registered against Rifas in 2019, alleging that he was a Sri Lankan national who had entered India in 2009, overstayed his visa, and thereafter obtained an Indian voter ID card, Aadhaar card and ration card. It was also alleged that he married in 2011 and had four children.

The NIA subsequently moved the special vourt seeking cancellation of his bail. On July 5, 2022, the special court cancelled the bail, following which Rifas approached the Madras High Court.

The high court set aside the cancellation order, observing, among other things, that Rifas had already been granted bail in 2018 and that the application seeking cancellation was filed nearly three years after the registration of the second FIR.

Before the Supreme Court, Additional Solicitor General Aishwarya Bhati argued that Rifas had suppressed the fact that he was a Sri Lankan national and that this constituted a supervening circumstance justifying cancellation of bail. She also relied on his Sri Lankan passport, arguing that it prima facie established that he was not an Indian citizen.

Rifas' counsel, Advocate A Velan, submitted that the Union government had not produced independent material establishing either his nationality or that he had entered India illegally. He also argued that the alleged confession relied upon by the prosecution was insufficient to establish the respondent's nationality or illegal entry.

Alleged confession

The Bench also considered the prosecution's reliance on an alleged extrajudicial confession made by Rifas to a Village Administrative Officer.

Court rejected the argument that the confession was inadmissible merely because of Section 25 of the Indian Evidence Act, 1872 (BSA Section 23(1)), holding that a Village Administrative Officer is not a police officer for the purposes of the provision.

It held that such a confession is not hit by the statutory bar, subject to the court being satisfied about its voluntariness, truthfulness and credibility.

The Bench, however, clarified that the probative value of the alleged confession would have to be assessed by the trial court at the appropriate stage of appreciation of evidence.

Section 43D(7) does not override statutory bail under Section 167(2) CrPC

Court also examined the effect of Section 43D(7) on statutory or default bail granted under Section 167(2) CrPC (BNSS Section 187(3)).

It noted that Section 43D(2) of the UAPA makes Section 167 CrPC applicable to UAPA cases, with modifications relating to the period available to the investigating agency to complete its investigation.

The Bench held that Section 43D(7), which begins with a non-obstante clause, overrides only Sections 43D(5) and 43D(6), and not Section 43D(2).

Therefore, the provision does not take away the right to statutory bail under Section 167(2) CrPC once the statutory conditions for default bail are satisfied.

Court also noted that Rifas' bail had been granted as a matter of right after the chargesheet was not filed within the prescribed period.

The Bench further took note of the delay in seeking cancellation of bail. It observed that the Union government had failed to explain why it did not approach the court for cancellation for approximately a year after the relevant developments.

"At the cost of repetition," the Bench said, "subsequent revocation of authorization or stay becoming illegal won’t attract the rigors of sub-section (7) of Section 43D" when the initial entry itself was not shown to be unauthorised or illegal.

Finding the appeal devoid of merit, the Supreme Court dismissed it and affirmed the Madras High Court judgment restoring Rifas' bail.

Case Title: Union of India Vs Mohamed Rifas @ Mohamed Rigbas Section 167 CrPC

Bench: Justices Aravind Kumar and Vipul M Pancholi 

Date of Judgment: October 27, 2026