Bhima Koregaon accused Father Stan Swamy has approached the Bombay High Court challenging the constitutional validity of Section 43D(5) of the Unlawful Activities Prevention Act (UAPA) of 1967. (Father Stan Swamy v. National Investigation Agency). .Swamy in his writ petition, submitted that Section 43D(5) creates an unsurmountable hurdle for any accused to be granted bail under UAPA thus making it violative of Articles 14 and 21 of the Constitution of India. .Section 43D(5) reads as follows:"Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.".In his petition filed by Advocate Mihir Joshi, Swamy contended that the condition of prima facie finding by the court (considering the bail plea) of the accusation being true, puts a major obstacle for the accused to get bail and makes the provision of bail illusory..He submitted that even for cases under UAPA the bail provisions needed to be seen in context of the Code of Criminal Procedure (CrPC) which did not prescribe any condition concerning the Court having to come to a prima facie conclusion about guilt or innocence of the accused in order to grant bail.Swamy contended that the UAPA did not impose any bar on High Courts from exercising powers under Section 439 of the CrPC to grant bail. However the wording of the Section was such that took away the judicial discretion of the Court to even superficially examine the case against the accused..Referring to the Supreme Court’s judgment in the National Investigation Agency vs. Zahoor Ahmad Shah Watali, Swamy submitted that the judgment created a situation where bail could be denied by relying upon prosecution documents even if they would be inadmissible during trial. Thus the judgment read along with Section 43D (5) "created a de-facto prohibition on grant of bail especially considering the degree of satisfaction is lighter in UAPA compared to other acts".Grant of anticipatory bail under Section 43D was prohibited, the petition stated..The provisions of Section 43D were compounded by Section 38 wherein membership of a banned organisation or mere 'association with a terrorist organisation' was considered a crime and participation in a specific incident was not necessary. He submitted that the use of "frontal organisations" by the investigating agencies to oppose his bail applications was blatantly arbitrary and violated his fundamental rights..“Presumption of innocence is a fundamental tenet of our criminal jurisprudence and is a human right... When such harsh conditions are imposed in respect of grant of bail even before the trial is conducted the same inverts on its head the presumption of innocence..." the plea stated..The Jesuit priest and octogenarian was arrested from his house in Ranchi on October 8, 2020 for his alleged role in inciting riots at Bhima Koregaon in 2018. He was later remanded to judicial custody. He is presently admitted in the Holy Family Private Hospital due to his deteriorating health after an order of the High Court in his appeals challenging rejection of bails by the Special Court. .He submitted in the petition his continued detention within the prison has deprived him of his constitutional right to health and while he was presently in hospital, there was a likelihood that he may sent back to Taloja prison. Swamy submitted that he was entitled to bail under Article 21 of the Constitution due to his advanced age and deteriorating health.In the alternative, he requested to be placed under house arrest at his residence.
