Supreme Court says legal entry keeps UAPA bail open to foreign nationals

The Supreme Court upheld bail relief for Sri Lankan national Mohmad Rifas. The ruling clarifies that foreign citizenship alone cannot trigger the UAPA bail bar.

The Supreme Court has ruled that the Unlawful Activities (Prevention) Act does not bar a foreign national from securing bail if the person entered India legally and with authorisation, news agency Press Trust of India reported.

A bench of Justices Aravind Kumar and Vipul M Pancholi upheld a Madras High Court order that had set aside a trial court's decision to cancel the bail granted to Sri Lankan national Mohmad Rifas, also known as Mohamed Rigbas, in a terror case.

According to PTI, the bench said the National Investigation Agency had failed to place any material on record to establish at first glance that Rifas had entered India illegally or without authorisation. Records in subsequent first information reports stated that he had entered the country on a valid visa and that his stay became illegal only after the visa expired. Proceedings under the Foreigners Act were initiated against him.

"In the light of aforesaid discussion, we are of the considered view that present appeal is devoid of merit and hence stands dismissed. Consequently, the impugned order dated December 12, 2023 passed by the Madras High Court in criminal appeal stands affirmed," the court ordered.

Rifas was arrested over allegations that he had conspired to create disharmony among religious communities and act against the government.

The bench said Section 43D(7) of the UAPA lays down three requirements for denying bail to a foreign national: the person must be accused of an offence punishable under the UAPA, must not be an Indian citizen, and must have entered India illegally or without authorisation.

It said the second and third conditions must be read together because the word "and" is used between them. Both conditions must, therefore, be met to deny bail to a foreign national. Merely establishing that an accused is a foreign national is not enough; the prosecution must also prove that the person's initial entry into India was illegal or unauthorised.

The NIA alleged that Rifas entered India in 2009 and overstayed his visa. It also alleged that he obtained Indian identity documents, including a voter identity card, Aadhaar card and ration card, and got married.

The trial court initially granted him default bail in July 2018 after the investigating agency failed to file a chargesheet within the prescribed period. The Centre later sought cancellation of his bail, arguing that he had concealed his Sri Lankan nationality, and the trial court cancelled it.

The Madras High Court set aside the trial court's order in December 2023, following which the Centre approached the Supreme Court.

The Supreme Court said bail could be granted to foreign nationals under the UAPA in "very exceptional circumstances" for reasons recorded in writing, even when all three conditions under Section 43D(7) were met.

"The said expression makes it apparent that the exception for grant of bail to a foreign national even when the above three conditions stand satisfied can be carved out but again such carving out has an extremely high threshold which is inherent therein itself by use of two expressions 'very exceptional circumstances' and 'reasons to be recorded in writing'," it said.

On a trial court's power to cancel bail, the bench said courts had the inherent authority to do so. However, such a decision must be based on reasonable grounds and exercised with caution because it concerns an individual's liberty.

"Though this court expanded the scope of power of courts while considering grant of bail even in absence of supervening circumstances, however, such power must be based on plausible reasoning and should not be exercised capriciously but with caution since the matter pertains to liberty of an individual and prosecution cannot be allowed to trifle with such liberty unless of paramount consideration for a fair trial was likely to be jeopardised," the bench said, according to PTI.

The Supreme Court, therefore, dismissed the Centre's appeal and affirmed the Madras High Court's order, holding that the UAPA restriction on bail could not apply merely because the accused was a foreign national when his initial entry into India had not been shown to be illegal or unauthorised.