Bail is not the rule for UAPA accused, says Supreme Court

The Supreme Court just made it clear: for certain crimes, bail is the exception, not the rule. Here's what happened when a man tried to argue otherwise.

October 2018. Two men caught hanging pro-Khalistan banners at a flyover in Amritsar. A routine arrest that unravelled something far larger — an entire module of the banned organization 'Sikhs for Justice' operating to spread separatist ideology, procure weapons, and carry out terror activities funded through hawala channels with ISI involvement. By the time the National Investigation Agency (NIA) took over in April 2020, eleven people had been charge-sheeted. One of them was Gurwinder Singh.

When the pistol deal failed in Srinagar

Gurwinder Singh had allegedly accompanied two co-accused to Srinagar to buy a pistol. When that failed, he suggested purchasing weapons from western Uttar Pradesh instead. His bail applications were rejected by both the Special NIA Court and the Punjab & Haryana High Court. He appealed to the Supreme Court.

The question before the bench of Justice Aravind Kumar and Justice M.M. Sundresh was deceptively simple: should Gurwinder Singh get bail while awaiting trial? The answer, delivered on February 7, 2024, was no — and the reasoning behind that rejection reshaped how every future accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) will be treated.

Gurwinder Singh was charged under multiple provisions: Sections 124A (sedition), 153A (promoting enmity between groups), 153B (imputations prejudicial to national integration), and 120B (criminal conspiracy) of the Indian Penal Code; Sections 17 (raising funds for a terrorist act), 18 (conspiracy to commit a terrorist act), and 19 (harbouring terrorists) of the UAPA; and Sections 25 and 54 of the Arms Act. The core allegation: he was part of a conspiracy to procure weapons for terrorist activities of the proscribed organization.

Why the golden rule died here

Every criminal lawyer knows the golden rule: bail is the rule, jail is the exception. That principle, embedded in Section 437(1) of the Code of Criminal Procedure, 1973 (CrPC), says a court may release an accused on bail unless certain conditions exist — like the accused being likely to abscond or tamper with evidence. But the UAPA creates a separate universe. Section 43D(5) of the UAPA uses different language: it says the court shall not release an accused if the court, on a perusal of the case diary or the police report (the charge-sheet filed under Section 173 CrPC), is of the opinion that there are reasonable grounds for believing that the accusation against the person is prima facie true (based on initial evidence that appears sufficient unless rebutted).

The Supreme Court drew a sharp contrast. "The legislative use of 'shall not be released' in the proviso to Section 43D(5), contrasted with 'may be released' in Section 437(1) CrPC, manifests legislative intent to make bail the exception and jail the rule for offences under Chapters IV and VI of the UAP Act," the bench observed. In plain language: for UAPA offences, Parliament deliberately flipped the default position. You don't start from a presumption of liberty. You start from a presumption of detention.

The twin-prong test that trapped him

The court applied what it called the "twin-prong test" — a framework it had earlier laid down in the landmark case NIA v. Zahoor Ahmad Shah Watali (2019). The first prong asks: does the material on record prima facie show that the accused committed an offence under Chapter IV or VI of the UAPA? If the answer is yes, bail must be rejected. Only if the answer is no does the second prong arise: whether the accused deserves bail under the general 'tripod test' — flight risk, tampering with evidence, and influencing witnesses.

In Gurwinder Singh's case, the first prong was satisfied. The NIA had gathered disclosure statements from co-accused, Call Detail Record (CDR) analysis (records of phone calls and tower locations), and other material showing the appellant's complicity in facilitating preparatory acts towards terrorism. The court noted that the appellant had not only accompanied co-accused to Srinagar to purchase a pistol but had also suggested an alternative source for weapons when that attempt failed. "The material on record prima facie shows his complicity in facilitating preparatory acts towards terrorism under Section 18 of the UAP Act," the bench held.

What the court refused to buy

Gurwinder Singh's lawyers argued that he had been in custody since 2018 — over five years — and that the trial was progressing slowly. They cited the Supreme Court's own judgment in KA Najeeb v. Union of India (2021), where the court had granted bail to a UAPA accused after prolonged incarceration. But the bench distinguished that case. In KA Najeeb, the accused had been in custody for over five years and the trial had not even begun. Here, charges had already been framed in December 2021, and the trial was underway. More importantly, the court held that "mere delay in trial pertaining to grave offences under the UAP Act cannot be used as a ground to grant bail where material on record indicates involvement in terrorist activities and release risks witness tampering."

The court also rejected the argument that the disclosure statements of co-accused were inadmissible. Under Section 43D(5), the court can consider the case diary and the police report — which includes such statements — for the limited purpose of forming a prima facie opinion. This is not the same as using them as evidence at trial, the court clarified.

What this means for every UAPA accused

The practical consequence of this judgment is stark. For any accused charged under Chapters IV or VI of the UAPA — which cover terrorist acts, conspiracy, fundraising, and harbouring — the default position is now jail, not bail. The accused must first overcome the prima facie test by showing that the material on record does not even make out a surface-level case. Only then can they argue the usual bail grounds of flight risk, evidence tampering, or witness influence. And even then, the restrictions under Section 43D(6) of the UAPA — which says these bail restrictions are in addition to those under the CrPC — mean the court has multiple layers of reasons to deny release.

THE PLAY: In every UAPA bail application, lead with an attack on the prima facie material — if the court finds reasonable grounds to believe the accusation, no other argument will save you.

For practitioners, the takeaway is clear: a bail application under the UAPA is not a routine hearing. It requires a focused attack on the prima facie material itself — showing gaps, contradictions, or absence of evidence linking the accused to the alleged conspiracy. Arguments about delay, good conduct in custody, or family circumstances will only work after the first prong is defeated.

The court ended where it began: with two men at a flyover, a banned organization, and a conspiracy that stretched from Amritsar to Srinagar to western Uttar Pradesh. Gurwinder Singh remains in custody. The trial continues.