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Synopsis

While dealing with a bunch of appeals against orders of cancellation of bail granted to the persons accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the Madras High Court recently observed that Section 43-D (7) of the Act which stipulates that bail cannot be granted to a person who is not an Indian citizen and has entered the country unauthorisedly or illegally, does not put a bar on court's discretion. 

"The Court can grant bail even to a person who is not a citizen under extraordinary circumstances," said the bench of Justice SS Sundar and Justice Sunder Mohan. 

Court underscored the text of the provision which states: “(7) Notwithstanding anything contained in sub - sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.”

The allegations against the accused persons were that they conspired against the government and planned to disrupt communal harmony at different places in Tamil Nadu to cause enmity and hatred between different religions.

Allegedly, the accused persons connected through Facebook and shared violent jihadi material on the platform. As per the prosecution, they also formed a WhatsApp group intending to further violent extremist ideology and share pro-jihadi materials to commit terrorism and to establish Islamic rule in India by unlawful means.

All the accused persons were arrested in April 2018 and released on bail in the months of either June or July 2018. However, the bail orders were subsequently canceled by the NIA court for different reasons in each case.

In one case, the accused namely Mohamed Rifas was found to be a Sri Lankan national. The NIA court cancelled his bail on the ground that bail cannot be granted to a non-Indian citizen as per the provisions of 43-D (7) of the UA (P) Act, 1967.

The high court observed that Section 43-D (7) of the UA(P) Act, 1967, stipulates that bail cannot be granted to a person who is not an Indian citizen and has entered the country unauthorisedly or illegally.

While highlighting the text of the provision, court held that it is not as if there is no discretion given to the court under the provision. 

Further, regarding the process adopted for cancellation of the bail granted to Mohamed Rifas, court said that the Trial Court has no power to review its own order in terms of the judgment in Abdul Basit Vs. Abdul Kadir Choudhary (2014).

Court said that the NIA ought to have filed an appeal against the order of the bail instead of filing a petition for a cancellation of the bail.

Therefore, court held the order of bail cancellation against Mohamed Rifas unjustified and allowed his appeal to set aside the bail cancellation order. Court allowed the other connected appeals as well. However, it imposed stringent conditions upon the accused persons so that the investigation officer will be able to ensure that the liberty was not misused by the accused persons. 

Case Title: Mohamed Rifas @ Mohamed Rigbas and Others v. UOI and connected matters