Recently, the Jharkhand High Court refused to grant bail to an accused charged under the Unlawful Activities (Prevention) Act, holding that mere delay in trial or prolonged incarceration cannot by itself justify release on bail in cases involving grave offences affecting national security. The Division Bench of Justice Sujit Narayan Prasad and Justice Gautam Kumar Choudhary emphasised that statutory restrictions under Section 43D(5) of the UAPA prevail when the allegations appear prima facie true.
Brief facts:
The case arose from an incident in which unidentified persons allegedly set vehicles on fire and opened indiscriminate firing near a mining check post, causing injuries to civilians and damage to property. On the basis of the incident, a criminal case was registered under various provisions of the Indian Penal Code, Arms Act, 1959, Explosive Substances Act, 1908, and the Unlawful Activities (Prevention) Act, 1967. In view of the seriousness of the allegations, the National Investigation Agency (NIA) took over the investigation and filed a supplementary charge-sheet implicating the appellant for allegedly harbouring members of a criminal gang and facilitating the supply of arms and ammunition. After the trial court rejected his bail application in the NIA case, the appellant approached the` High Court by filing an appeal challenging the order refusing bail.
Contentions of the Appellant:
The Appellant argued that the bail rejection order was unsustainable as the appellant was neither named in the original FIR nor was any incriminating material recovered directly from his possession. The Counsel further contended that the allegation of harbouring terrorists surfaced only in the second supplementary charge-sheet, and no substantial material had been produced during the investigation linking the appellant with the alleged conspiracy. The Appellant also claimed parity with several co-accused who had already been granted bail by the High Court. Additionally, reliance was placed on the Appellant’s prolonged incarceration since July 2021, coupled with the slow pace of the trial involving a large number of witnesses and documents, to argue that continued custody would violate the principles of personal liberty and fair trial.
Contentions of the Respondent:
Opposing the appeal, the National Investigation Agency submitted that the appellant was apprehended during a police raid at a flat where six country-made pistols and twenty-seven cartridges were recovered, establishing his direct nexus with the criminal conspiracy. The prosecution further relied on the second supplementary charge-sheet, which alleged that the appellant had actively assisted the gang by arranging safe shelter for absconding members and facilitating the movement and supply of arms and ammunition. The Respondent argued that the Appellant’s role was similar to that of another co-accused whose bail had already been rejected by the High Court, thereby negating the plea of parity. The NIA also contended that the statutory bar under Section 43D(5) of the UAPA would apply since the materials collected during the investigation clearly disclosed a prima facie case against the appellant.
Observation of the Court:
The Court noted that the investigation revealed that the appellant had allegedly facilitated safe harbour for absconding accused persons and was involved in the supply and storage of arms and ammunition used by the gang. The Bench also recorded that the appellant had been arrested from the premises where weapons were recovered and that the investigation indicated his active association with the group.
Referring to the statutory scheme under Section 43D(5) of the UAPA, the Court reiterated that bail in such cases can be granted only when the Court is satisfied that the allegations against the accused are prima facie untrue. Where the materials collected during the investigation disclose a prima facie case, the embargo on bail under the statute operates with full force.
The Bench relied on recent Supreme Court jurisprudence to emphasise that delay in trial cannot automatically override the statutory restriction on bail in cases involving serious offences affecting national security. The Court observed that “Mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail.”
The Court further held that the plea of parity was not applicable since the role attributed to the appellant differed from that of other co-accused who had been granted bail. The Bench emphasised that parity must be assessed on the basis of the specific role attributed to the accused and the material available against them, and cannot be applied mechanically. The Court therefore concluded that the allegations against the appellant were supported by prima facie material and that the statutory threshold for bail under the UAPA had not been satisfied.
The Court reiterated that prolonged custody or delay in trial cannot by itself justify bail in serious offences implicating national security, reaffirming the principle that the right to personal liberty must be balanced against the interests of society and the State.
The decision of the Court:
In light of the foregoing discussion, the Court dismissed the criminal appeal and upheld the order rejecting the appellant’s bail application, holding that the statutory embargo under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, prevents the grant of bail where the allegations appear prima facie true.
Case Title: Kundan Kumar vs. National Investigation Agency,
Case No.: Criminal Appeal (DB) No.1508 of 2025
Coram: Hon’ble Mr. Justice Sujit Narayan Prasad, Hon’ble Mr. Justice Gautam Kumar Choudhary
Advocate for the Petitioner: Adv. Abhinay Kumar
Advocate for the Respondent: Adv. Amit Kumar Das, Adv. Vineet S
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