But wouldn’t they get bail if there is no evidence against them?
So why is Umar Khalid, like all the other defendants in FIR 59 (except Safoora Zargar, who was released on humanitarian bail), going to be stuck in jail for years to come?
The answer is in Section 43D (5) of the UAPA.
In normal criminal cases, bail is assumed to be the norm and pretrial detention the exception. If the defendant can show that he is cooperating, is not likely to repeat the alleged offense, does not elope or threaten witnesses or tamper with evidence, the court may grant them bail, even for what are called non-subject offenses. bond.
However, Section 43D (5) of the UAPA says that a person charged with a crime under Chapters IV and VI of the UAPA (terrorism and membership of a terrorist organization) will not be released on bail if the court, after reading the journal of the case and the police report, “believes that there are reasonable grounds to believe that the accusation against said person is prima facie true.”
Police and the NIA have viewed this provision over the years as an embargo on anyone who is released on bail in a case involving terrorism charges under the UAPA, regardless of the actual evidence in their against. The lower courts have also, over the years since this provision was added to the UAPA in 2008, have considered the provision as such, due to its use of the term ‘prima facie’.
However, in 2018, the Delhi High Court was hearing the case of Zahoor Ahmad Shah Watali, a defendant in an NIA case, who had attempted to obtain bail due to incomplete evidence against him, evidence in the nature of the hypothetical at first. of this article.
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