No Statutory Bar On Granting Bail U/S 13 Of UAPA As Restrictions U/S 43-D(5) Do Not Apply: J&K High Court Clarifies

In a ruling delivered by a Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar the court added,

“.. though offence under Section 13 does not fall within the purview of Section 43-D (5), however, in matters arising for granting of bail thereto, the conditions laid in the Code are to be taken care of”.

Case Background:

The case arose out of FIR registered under Sections 13, 18, 19, and 39 of the UAPA. The prosecution alleged that the respondent, was an Over Ground Worker (OGW) affiliated with the banned terrorist outfit TRF (The Resistance Front), and had played an instrumental role in providing logistical support to TRF operatives involved in attacks on soft targets including street vendors, migrant labourers, and off-duty police personnel.

During investigation, various materials were recovered from other co-accused, including anti-national posters and objectionable digital content. The prosecution claimed that the respondent had radicalized youth and incited them towards anti-national activities. A charge-sheet was filed against 20 accused persons, including the respondent.

However, on October 29, 2022, the designated NIA Court discharged the respondent from serious offences under Sections 18, 18-B, 39, and 40 of the UAPA, and framed charges only under Section 13, which criminalizes "unlawful activity".

The trial court, after hearing arguments, granted bail to the respondent in 2023, which was challenged in appeal by the Union Territory of Jammu and Kashmir.

Court's Observations:

Justice Sanjay Parihar authoring the Judgment for the bench undertook a thorough examination of the legal position surrounding Section 13 of the UAPA and the applicability of Section 43-D(5). Justice Parihar noted that Section 13 is punishable with a maximum term of seven years and falls under Chapter III of the Act. Consequently, Section 43-D(5), which imposes a stringent bar on bail for graver offences under Chapters IV and VI, does not apply.

“In the aforesaid background, neither under the Code nor under the UAPA was there any legal bar on the trial Court in exercising discretion of bail in favour of the respondent,” the Court held.

Justice Parihar emphasized that in absence of the 43-D(5) embargo, bail had to be considered in accordance with the general principles under Sections 437 and 438 CrPC, which only prohibit bail in offences punishable with life imprisonment or death.

The Court relied on several landmark decisions of Union of India v. K. A. Najeeb (2021) &Thawha Fasal v. Union of India (2021) to reiterate that constitutional courts retain the power to grant bail even in cases governed by UAPA, especially where there is prolonged incarceration and no likelihood of early trial completion.

The Bench highlighted that despite strong allegations, the prosecution could not present any concrete material establishing the respondent's direct nexus with active TRF militants. No incriminating recovery was made from the respondent, the court pointed and added,

“The accusations, though grave in nature, had no backing of any past criminal history or recovery. The case having proceeded to the stage of trial, the learned trial court after considering the material before it has rightly exercised jurisdiction of granting bail,”.

It further added that permitting continued detention in the face of a lesser charge would amount to pre-trial punishment, which the law does not permit.

The Court also dismissed the contention that the trial court “sifted the evidence” at the bail stage, clarifying that the bail was granted only after the charge/discharge stage was concluded, and thus no prejudice was caused to the prosecution.

Affirming the trial court's order, the Division Bench held,

“Respondent is presumed to be innocent until proven guilty and if the offence alleged to have been committed by him is punishable with Seven (7) years, he was entitled to be bailed out.”

Finding no perversity or illegality in the trial court's exercise of discretion, the High Court dismissed the appeal filed by the UT Government and upheld the bail order.

Case Title: UT Of J&K Through P/s Chanapora Vs Sameer Ahmad Koka

Citation: 2025 LiveLaw (JKL) 216

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