The Supreme Court on Tuesday held that an accused’s foreign nationality alone does not bar the grant of bail under the Unlawful Activities (Prevention) Act (UAPA) [Union of India v. Mohamed Rifas ].
A Bench of Justices Aravind Kumar and Vipul M Pancholi clarified that the bail restriction under Section 43D(7) of UAPA applies only if the foreign national also entered India illegally or without authorisation.
“Merely because a person is not an Indian Citizen will not suffice to trigger the rigors of sub-section (7) of Section 43D,” the Court held.
It explained that a foreign national’s lawful entry into India does not become unlawful merely because their authorisation is subsequently revoked or their stay becomes illegal.
“What is required and necessary is that when such person entered India initially, such entrance itself was unauthorised or illegal,” the Court said.
The Court was hearing the Union government’s appeal against a Madras High Court judgment restoring bail to Mohamed Rifas, whom the prosecution alleged was a Sri Lankan national.
The case arose from a 2018 FIR concerning an alleged conspiracy to disrupt communal harmony and commit terrorist acts. Rifas was arrested but secured default bail in July 2018 after the prosecution failed to file its chargesheet within the prescribed time.
The National Investigation Agency (NIA) took over the investigation in January 2019 and filed a chargesheet in January 2021.
Meanwhile, a separate FIR registered in November 2019 alleged that Rifas had entered India on a Sri Lankan passport, overstayed his visa and illegally obtained Indian identity documents.
In April 2022, the prosecution sought cancellation of his bail, arguing that he had concealed his foreign nationality and that Section 43D(7) restricted his release.
A special court accepted the plea and cancelled his bail. However, the High Court set aside that order in December 2023, prompting the Union government to approach the Supreme Court.
The Supreme Court found that the prosecution had not produced material to prima facie establish that Rifas entered India illegally. It noted that even the subsequent FIR recorded that he had entered on a valid visa and overstayed after its expiry.
Addressing the prosecution’s allegation that Rifas had concealed his foreign nationality, the Bench noted that he had secured default bail because the chargesheet was not filed within the prescribed time.
This was a statutory right under Section 167(2) of the Code of Criminal Procedure, made applicable to UAPA cases through Section 43D(2), the Court explained. It held that Section 43D(7) does not override Section 43D(2) and therefore does not bar default bail.
The Bench also distinguished between setting aside an illegal or perverse bail order and cancelling bail over subsequent misconduct or newly discovered facts. It clarified that even without subsequent circumstances, cancellation must be supported by sound reasons and the power must be exercised cautiously, since the accused’s liberty is involved.
The subsequent filing of a chargesheet did not automatically justify bail cancellation, the Court held, finding that the prosecution had established no special and strong ground to cancel Rifas’ bail.
It accordingly dismissed the Union government’s appeal and upheld the High Court’s judgment restoring his bail.
[Read Judgment]