LI Network
Published on: 6 August 2023 at 18:00 IST
The Supreme Court refused to grant bail to Vernon Gonsalves and Arun Ferreira, who were accused in the Bhima Koregaon case and known activists.
The court’s ruling appears to have introduced an exception to the stringent interpretation of bail-granting powers under the Unlawful Activities (Prevention) Act (UAPA), which was influenced by the Zahood Ahmad Watali judgment.
The Watali principle, established in 2019 by a bench headed by former judge AM Khanwilkar, had set aside the bail granted by the Delhi High Court to a Kashmiri businessman accused under UAPA.
The high court had found no reasonable grounds to believe the allegations against the accused were prima facie true and had discarded certain pieces of evidence as inadmissible.
The National Investigating Agency (NIA) had challenged the high court’s decision, arguing that it conducted a “mini-trial” during the bail hearing. However, the Supreme Court clarified that the admissibility and credibility of evidence should be determined during the trial, not at the pre-trial stage.
The Watali precedent restricted courts from extensively analyzing the prosecution’s case during the bail hearings, and evidence placed on record by the NIA, regardless of admissibility or probative value, could be used to deny bail. This interpretation made it more difficult for UAPA undertrials to secure bail.
In previous cases, some progress had been made in liberalizing the bail jurisprudence under UAPA, such as the Najeeb case in 2020, where the court upheld the constitutional court’s power to grant bail on the grounds of violating the accused’s right to a speedy trial under Article 21.
Similarly, in Thwaha Fasal case in 2021, the court had tempered the Watali principle, stating that the embargo on bail would not apply if the charge sheet did not reveal a prima facie case.
However, the recent case of Vernon has brought a new analysis standard. The bench of Justices Aniruddha Bose and Sudhanshu Dhulia held that a plea for bail under Section 43D(5) of UAPA would not pass the prima facie test envisioned in Watali without at least a surface-level analysis of the probative value of evidence.
The court emphasized the importance of considering evidence quality during the bail hearings.
The Supreme Court also highlighted the duty of the court to ensure that stringent provisions of the law, like UAPA, are applied carefully, especially in cases involving serious offences.
The Vernon ruling marks a departure from the Watali precedent and paves the way for more UAPA undertrials to seek bail based on a thorough analysis of evidence.
