[2026:RJ-JP:40450-DB]

REPORTABLE

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

Judgment reserved on: 30/09/2026

Judgment delivered on: 03/10/2026

Judgment (Full) uploaded on: 03/10/2026

D.B. Criminal Appeal (Db) No. 438/2024

CNR: RJHC020989232024 | URN: CRLAD / 721U / 2024

Wasim Ali (A6) Son Of Late Shri Imran Ali, Aged About 34 Years,

Resident Of House No. 525/725, Kishanpol Raza Nagar, Udaipur

(Rajasthan). (At Present Confined In Judicial Custody In High

Security Jail, Ajmer)

----Appellant

Versus

National Investigation Agency, (N.I.A.) New Delhi Through Special

Public Prosecutor.

----Respondent

Connected With

D.B. Criminal Appeal (Db) No. 351/2024

CNR: RJHC020892322024 | URN: CRLAD / 592U / 2024

Muslim Khan Son Of Sher Mohammed, Aged About 43 Years, R/o

New Awdhi Village Parsola Dhariyabad, District Pratapgarh (Raj).

(Presently The Accused Confined In High Security Jail, Ajmer).

----Appellant

Versus

National Investigation Agency, (N.I.A.) New Delhi Through Special

Public Prosecutor.

----Respondent

D.B. Criminal Appeal (Db) No. 436/2024

CNR: RJHC020989042024 | URN: CRLAD / 719U / 2024

Mohsin Khan(A-3) Son Of Shri Mujaffar Khan, Aged About 27 Years,

Resident Of House No. 18A, Government Press Colony, Raza Nagar,

Police Station Surajpol, Udaipur (Rajasthan). (At Present Confined In

Judicial Custody In High Security Jail, Ajmer)

----Appellant

Versus

National Investigation Agency, (N.I.A.) New Delhi Through Special

Public Prosecutor.

[2026:RJ-JP:40450-DB] (2 of 26) [CRLAD-438/2024]

----Respondent

D.B. Criminal Appeal (Db) No. 437/2024

CNR: RJHC020989102024 | URN: CRLAD / 720U / 2024

Mohammad Mohsin Son Of Shri Mohammad Inslam, Aged About 34

Years, Resident Of Gali No. 4, Vijay Singh Pathik Nagar, Udaipur

(Rajasthan). (At Present Confined In Judicial Custody In High

Security Jail, Ajmer)

----Appellant

Versus

National Investigation Agency, (N.I.A.) New Delhi Through Special

Public Prosecutor.

----Respondent

D.B. Criminal Appeal (Db) No. 439/2024

CNR: RJHC020988972024 | URN: CRLAD / 722U / 2024

Asif Hussain(A-4) Son Of Shri Mohammad Hussain, Aged About 25

Years, Resident Of House No 245 Mohallahmahawatbari Street

Behind Government School Girwa Udaipur (Rajasthan). (At Present

Confined In Judicial Custody In High Security Jail, Ajmer)

----Appellant

Versus

National Investigation Agency, (N.I.A.) New Delhi Through Special

Public Prosecutor.

----Respondent

For Appellant(s) : Mr. Syed Saadat Ali with

Mr. Salim Khan

Mr. Nadeem Qadeer

Ms. Uzma Ilyas

Ms. Aafreen Rizvi

Mr. K.M. Siddiqui

Mr. Sumit Kumar

Mr. Anshul Mathur

Mr. Aatif Aman Khan

For Respondent(s) : Mr. Raja Thakare, Sr. Adv. (ASG) with

Mr. Sneh Deep Khyalia, Spll. P.P.

Mr. Rohit Khare

Mr. Siddharth Sharma

Mr. Himanshu Choudhary

[2026:RJ-JP:40450-DB] (3 of 26) [CRLAD-438/2024]

DIVISION BENCH

HON'BLE THE CHIEF JUSTICE MR. SANJAY K. AGRAWAL

HON'BLE MR. JUSTICE SAMEER JAIN

C.A.V. JUDGMENT

By the Court:

"Terrorism and deception are weapons not

of the strong, but of the weak."

- Mahatma Gandhi

"सहनशीलता, क्षमा,

दया को तभी पूजता जग है

,

बल का दर्पचमकता उसके पीछे जब जगमग है।

क्षमा शोभती उस भुजंग कोजिसके पास गरल हो

,

उसको क्या जो दंतहीन

, वि

षरहित

, वि

नीत

,

सरल हो।

"

-

रामधारीसिंह

'दि

नकर

'

PREFATORY REMARKS:

1. The seat of a judge is surrounded by an invisible, yet

crushing weight, the weight to protect the rights of the citizens

and people of this country which are enshrined under the

Constitution of India.

2. Every time a case file is opened in this Court, we are not

merely adjudicating a dispute between a prosecution agency and

an accused; we are testing the very resilience of our Republic. But

the paradigm of bail shifts entirely when the crime in question is

not aimed at an individual, but at the very soul of the nation.

3. Terrorism is not merely an assault on a physical body; it is a

calculated, theatrical assault on the psychological sovereignty of

the country. Its ultimate objective is not just to commit an

offence, but the assassination of peace. It seeks to replace the

‘Rule of Law’ with the ‘Rule of Fear’.

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संविधान की प्रस्तावना केवल एक दस्तावेज़ के पन्ने नहीं हैं; वे इस

राष्ट्र की आत्मा की अमर प्रतिज्ञा हैं –

“We, the People of India, resolve to secure

Justice, Liberty, Equality, and Fraternity.”

4. But how does a Republic secure fraternity when the very

fabric of its society is violently torn by those who wield terror as a

weapon? The gavel strikes, not merely to conclude a hearing, but

to echo the unyielding resolve of a sovereign Republic.

5. The preambles of the National Investigation Agency Act,

2008 and the Unlawful Activities (Prevention) Act, 1967 are not

mere statutory introductions; they are the legislative declarations

of a State fighting for its self-preservation. The said preambles

remind us that while the Constitution is the ultimate shield for the

innocent, it cannot be allowed to become a sanctuary for those

who seek to tear apart our social fabric. The law must possess the

teeth to bite those who attempt to devour the nation's harmony.

6. The NIA Act, and the UAPA, were not forged in the tranquility

of peace. They were born in the crucible of necessity. If we look at

the preamble of the NIA Act, its mandate is absolute:

“to constitute an investigation agency at the

national level to investigate and prosecute

offences affecting the sovereignty, security and

integrity of India, security of State, and friendly

relations with foreign States.”

7. Similarly, the preamble of the UAPA stands as a statutory

sentinel, enacted for the more effective prevention of certain

unlawful activities of individuals and associations, and for dealing

with terrorist activities.

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8. The above-mentioned legislation are not ordinary criminal

statutes; they are the armor of the State.

9. As we open this case, we must navigate the perilous

tightrope between the rights of the accused and the survival of the

State. We must examine the anatomy of the crime, not just

through the lens of an offence but through the unyielding prism of

national security.

INTRODUCTION:

10. The present bunch of D.B. Criminal Appeals has been

preferred under Section 21(4) of the National Investigation

Agency Act, 2008 (hereinafter referred to as the ‘NIA Act’)

challenging the impugned order s dated 09.10.2024 and

12.11.2024 passed by the learned Special Judge (NIA Cases) ,

Jaipur, Rajasthan. By way of the said impugned order s, the

Criminal Miscellaneous Bail Applications filed on behalf of the

accused-appellants under Section 483 of the Bharatiya Nagarik

Suraksha Sanhita, 2023 (BNSS) were dismissed.

11. The present appeals arise out of First Information Report

bearing No. RC27/2022/NIA/DLI dated 29.06.2022, registered at

Police Station NIA, New Delhi, for the alleged commission of

offences punishable under Sections 452, 302, 153A, 153B, 295A,

and 34 of the Indian Penal Code, 1860 (hereinafter referred to as

‘IPC’) and Sections 16, 18, and 20 of the Unlawful Activities

(Prevention) Act, 1967 (hereinafter referred to as ‘UAPA’).

12. With the consent of the respective counsel, the present

bunch of appeals arising out of the same FIR and challenging the

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orders rejecting bail, were heard and are being taken up together

for final adjudication, as they are interconnected, interlaced, and

arise out of the same set of facts and points of law.

FACTUAL MATRIX OF THE CASE AT HAND:

13. The genesis of the matter pertains to an incident where one

Nupur Sharma, the then spokesperson of a political party, made

certain remarks regarding Prophet Mohammad in May 2022 during

a television debate and her comments led to widespread agitation

and protests across the country.

14. As per the case of the appellants, the deceased, Kanhaiya

Lal, subsequently made remarks and forwarded comments relating

to Nupur Sharma through a Facebook post late at night on

10.06.2022. The said action allegedly agitated local residents

belonging to a particular community in his neighborhood.

Consequently, one Nazim lodged an FIR No.71/2022 at Police

Station Dhanmandi at 12:34 AM on 11.06.2022. Thereafter,

Kanhaiya Lal was arrested in connection with the said FIR and was

subsequently released on bail by the learned Trial Court after a

span of three days.

15. Sensing a threat to his life, Kanhaiya Lal installed three CCTV

cameras outside his shop, ‘Suprim Tailors’, on 15.06.2022.

16. It is further alleged that on 16.06.2022, one Kaleem,

accompanied by his wife and a newborn baby, came to Kanhaiya

Lal’s shop on his motorbike and had a verbal altercation with

Kanhaiya Lal.

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17. The pivotal incident occurred on 28.06.2022. On 29.06.2022

at around 06:31 hours, a formal complaint was lodged by Shri

Yash Teli, son of Kanhaiya Lal Teli, at Udaipur, Rajasthan,

regarding the brutal murder of his father. The said complaint was

initially registered as FIR No.81/2022 at Police Station Dhan

Mandi, Udaipur for offences under Sections 452, 302, 153-A, 153-

B, 295-A and 34 of the IPC read with Sections 16, 18, and 20 of

the UAPA. Subsequently, pursuant to the directions issued by the

Ministry of Home Affairs, Government of India, the National

Investigation Agency (NIA) re-registered the case on 29.06.2022

and took over the investigation.

18. The facts detailed in the above-mentioned FIR relate to the

gruesome and brutal murder of Kanhaiya Lal Teli by two assailants

armed with sharp weapons inside his shop located at Bhoot Mahal

Maaldas Street, Udaipur. During the said incident, two shop

assistants present at the scene were also grievously injured.

19. The assailants conspicuously recorded the act and circulated

videos of the gruesome murder on social media with assertions

intended to promote enmity on communal grounds and to spread

terror across the nation.

20. Upon completing a thorough investigation, the NIA filed a

comprehensive charge-sheet. The learned Trial Court framed

charges against the accused on 12.01.2024 and 13.02.2024. The

present accused-appellants, namely Wasim Ali (A-6, arrested on

05.07.2022), Muslim Khan (A-9, arrested on 10.08.2022), Mohsin

Khan (A-3, arrested on 01.07.2022) Mohammad Mohsin (A-5,

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arrested on 04.07.2022), and Asif Hussain (A-4, arrested on

01.07.2022), have been in judicial custody since their respective

dates of arrest.

21. As per the charge-sheet, the main accused, namely

Mohammed Riyaz Attari (A-1) and Mohammed Gos (A-2), stabbed

and beheaded Kanhaiya Lal inside his shop in the presence of two

workers, namely Raj Kumar Sharma and Ishwar Gaud, recorded

the ghastly incident, and subsequently circulated the videos online

to instill terror. It is in this background that the appellants

preferred bail applications before the learned Special Court, which

came to be rejected vide the impugned orders dated 09.10.2024

and 12.11.2024.

SUBMISSIONS ON BEHALF OF THE APPELLANTS:

22.Learned counsel for the appellants vigorously canvassed the

following grounds in support of the prayer for the grant of bail:

22.1 It was primarily contended that there is no cogent evidence

on record to demonstrate that the accused-appellants were

present in or around the vicinity of the deceased’s shop from

10.06.2022 to 28.06.2022.

22.2 It was further submitted that the accused-appellants were

never seen in the vicinity of the shop during the relevant period

leading up to the incident.

22.3 Learned counsel emphatically argued that there is no iota of

evidence on record to suggest that the accused-appellants had

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sent any message, voice note, or text on any WhatsApp group

that could be construed as hurting the religious faith of any

community or promoting enmity.

22.4 It was submitted that the co-accused, namely Farhad

Mohammed and Mohammed Javed, have already been granted

bail by the learned Trial Court and by this Court, respectively, on

the exact same set of charges as framed against the present

accused-appellants.

22.5 Learned counsel further relied upon the prolonged period of

incarceration, submitting that the appellants have been in custody

for over four and a half years. It was argued that the trial will take

its own considerable time, given that the prosecution proposes to

examine approximately 180 witnesses. Although the charge-sheet

was filed on 22.08.2022 and charges were framed in early 2024,

the trial is far from conclusion. In regard to the aforesaid

submission, reliance was placed upon the authoritative

pronouncement of the Hon’ble Supreme Court in Union of India

v. K.A. Najeeb

1

, to contend that the statutory embargo as

enshrined under Section 43D(5) of the UAPA cannot eclipse the

fundamental right to a speedy trial guaranteed under Article 21 of

the Constitution of India. It was argued that where a timely trial is

not possible, the constitutional courts are obligated to enlarge the

accused on bail, regardless of the statutory restrictions. Moreover,

reliance was placed on the recent judgment passed by the Hon’ble

1 (2021) 3 SCC 713

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Supreme Court in Syed Iftikhar Andrabi v. NIA

2

, which

reaffirmed the primacy of Article 21 of the Constitution of India

and clarified that the dictum laid down in K.A. Najeeb (supra) is

binding law that cannot be diluted, holding that Section 43D(5)

“melts down” in the face of prolonged pre-trial incarceration.

22.6 It was further contended that the disclosure statements of

the appellants were recorded in the English language, which they

do not comprehend, therefore vitiating the entire recovery carried

out as per the provisions enshrined under Section 27 of the Indian

Evidence Act, 1872 (hereinafter referred to as the ‘IEA’). It was

argued that such statements are also hit by Section 25 of the IEA.

22.7 It was next submitted that the names of the appellants were

not reflected in the FIR and that the implication of the appellants

is solely based on presumptions, assumptions, and Call Detail

Records (CDRs) merely because they are neighbors and were

regularly communicating with each other over the years.

22.8 It was lastly submitted that there are no criminal

antecedents registered against the accused-appellants and that

they are the sole breadwinners of their respective families.

22.9 Reliance in regard to the aforesaid submissions has also

been placed upon the ratio dated 17.04.2023 enunciated by the

Hon'ble Supreme Court in the case of Yedala Subba Rao v.

Union of India

3

and it was prayed that the accused-appellants

may be released on bail.

22026 SCC OnLine SC 881

3Criminal Appeal No. 1153/2023 (Arising out of SLP (Crl.) No.101/2021)

[2026:RJ-JP:40450-DB] (11 of 26) [CRLAD-438/2024]

SUBMISSIONS ON BEHALF OF THE RESPONDENT (NIA):

23. Per contra, Mr. Raja Thakare, learned Senior Counsel (ASG)

appearing on behalf of the NIA, vehemently opposed the present

appeals and advanced the following arguments:

23.1 It was submitted that the FIR has been registered under a

Special Act-UAPA, and the investigation was meticulously carried

out by a specialized agency-NIA. It was next submitted that the

accused-appellants played an active, indispensable, and integral

role in the commission of the alleged crime.

23.2 It was contended that the evidence on record, including

witness statements and investigative material, categorically

transpires that a deep-rooted criminal conspiracy was hatched. It

was submitted that the unlawful activities were executed in a

highly pre-planned and pre-meditated manner, culminating in a

brutal murder and a heinous offence against the State.

23.3 It was argued that a brutal murder was committed in broad

daylight pursuant to a conspiracy hatched by all the appellants

along with the main accused. It was further submitted that the

subsequent broadcasting and circulation of videos of the gruesome

act through various social media platforms was a calculated move

with the sole aim and object to instill fear, terrorize the common

conscience of the society, and strike terror in the nation at large.

23.4 It was urged that the said incident was deliberately given a

communal colour with the malicious intention to create a deep

divide in the social fabric between two predominant communities

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of the country, disrupt the communal tranquility of the State at

large, and project an international flavor to the terror act.

23.5 Learned Senior Counsel relied upon the statutory embargo

as enshrined under Section 43D(5) and (6) of the UAPA, 1967,

and further relied upon the ratio laid down by the Hon’ble

Supreme Court in National Investigation Agency v. Zahoor

Ahmad Shah Watali

4

and it was argued that as per the said

dictum, the Court is not required to conduct a mini-trial or weigh

the evidence meticulously at the bail stage. The Court must look

at the material provided by the investigative agency at its face

value, and if it discloses reasonable grounds for believing the

accusation to be prima facie true, bail must be rejected. It was

contended that the standard of scrutiny is even narrower post the

framing of charges.

23.6 Addressing the argument of delay qua the conduct of trial,

the learned Senior Counsel submitted that on the request of the

State, the trial is being conducted on a day-to-day basis

expeditiously. However, the said request had vehemently been

objected to by the appellants, thereby making the appellants

themselves attributable to the alleged delay.

23.7 Learned ASG clarified that the list of witnesses has been

considerably shaved down from 180 to 89, and nearly 30 material

witnesses have already been examined, therefore, the ratio laid

down by the Hon’ble Supreme Court in K.A. Najeeb (supra) is not

attracted to the present case, as the trial is progressing rapidly.

4(2019) 5 SCC 1

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23.8 Distinguishing the case of the present accused-appellants

from the co-accused who were granted bail, it was submitted that

the active role of every appellant is distinct and well-documented

in the charge-sheet. The co-accused who were granted bail stand

on a completely different set of factual matrices as those of the

present appellants as one of the co-accused was minor and he was

granted the concession of bail on the ground of juvenility.

23.9 It was emphasized that the statements, call details, video

recordings, and recovery of weapons from the accused-appellants

constitute concrete, tangible evidence supporting the prosecution’s

case of a heinous terrorist act, and therefore, it was prayed that

the present batch of appeals may be dismissed.

ANALYSIS AND FINDINGS:

24. We have given our anxious consideration to the rival

submissions advanced by learned counsel for the respective

parties, meticulously scanned the records of the present appeal,

and carefully perused the judgments cited by both sides at the

Bar.

25. The core issue before this Court is whether the appellants

are entitled to the concession of regular bail under the stringent

provisions of Section 21(4) of the NIA Act read with Section

43D(5) of the UAPA, particularly in light of their prolonged

incarceration.

26. Before dealing with the aforesaid issue, it is of the vital

importance to examine the provisions enshrined under Section

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43D(5) and (6) of the UAPA, the relevant extracts of the same are

reproduced as under:

“43D. Modified application of certain provisions

of the Code.

xxxxxxxxx

(5) 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.

(6) The restrictions on granting of bail specified in

sub-section (5) is in addition to the restrictions

under the Code or any other law for the time

being in force on granting of bail…..”

(emphasis supplied)

27. The statutory framework as laid down by the legislation

under Section 43D(5) has been dealt with in detail by the Hon’ble

Supreme Court in Gulfisha Fatima v. State (Govt. of NCT of

Delhi)

5

. The relevant extract of the said dictum is reproduced as

under:-

“3. STATUTORY FRAMEWORK OF SECTION

43D(5) AND THE SCOPE OF JUDICIAL

INQUIRY AT THE BAIL STAGE

64. The issues arising before this Court at the

stage of consideration of bail engage multiple

facets of law, including the nature of the statutory

framework, the limits of judicial scrutiny at the

pre-trial stage, and the manner in which

allegations under a special enactment are

required to be assessed. In order to address

these aspects in a structured and principled

52026 SCC OnLine SC 10

[2026:RJ-JP:40450-DB] (15 of 26) [CRLAD-438/2024]

manner, it becomes necessary to examine the

scheme of the Unlawful Activities (Prevention)

Act, 1967, and in particular the scope and content

of Section 43D(5), which regulates the exercise of

judicial discretion in such matters. An

understanding of this framework provides the

necessary foundation for evaluating the material

placed on record and the role attributed to each

accused in accordance with law.

65. The Unlawful Activities (Prevention) Act,

1967, is a special statute enacted to address

forms of criminal conduct which, by their very

nature, transcend ordinary breaches of penal law

and implicate the sovereignty, integrity, and

security of the State. Parliament, in framing the

Act and in subsequently strengthening its

provisions, has proceeded on the legislative

understanding that such offences are rarely

confined to isolated acts, but are more often the

culmination of organised, sustained, and

conspiratorial activity unfolding over time.

66. The statutory scheme of the Act reflects this

understanding. Chapters IV and VI do not confine

criminal liability to the final execution of a

terrorist act alone. They extend culpability to

preparatory conduct, facilitation, abetment, and

conspiracy, recognising that the threat sought to

be addressed by the statute often materialises

long before any overt act of violence is

committed. The law thus proceeds on a process-

based conception of criminality rather than an

event-based one.

67. It is within this legislative backdrop that

Section 43D(5) assumes significance. The

provision constitutes a conscious departure from

the general principles governing the grant of bail

under the Code of Criminal Procedure. Parliament

has imposed a calibrated restriction on the power

of courts to grant bail in respect of offences under

Chapters IV and VI, reflecting its assessment that

the ordinary presumption in favour of pre-trial

liberty requires modification where allegations

pertain to activities threatening the foundations of

the State.

68. At the same time, Section 43D(5) does not

exclude judicial scrutiny. Nor does it mandate

denial of bail by default. The restriction operates

only upon the Court being satisfied that there are

reasonable grounds for believing that the

accusation against the accused is prima facie

true. The provision thus preserves the judicial

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function, while carefully defining its contours at

the pre-trial stage.

69. This Court has, on several occasions,

examined the scope and application of Section

43D(5) in diverse factual settings. Decisions such

as National Investigation Agency v. Zahoor

Ahmad Shah Watali , Vernon v. State of

Maharashtra, Shoma Kanti Sen v. State of

Maharashtra, Athar Parwez v. Union of

India, and Jalaluddin Khan v. Union of India

disclose a consistent judicial approach to the

provision, notwithstanding variations in factual

context. The present analysis seeks not to restate

those authorities individually, but to distil the

governing principles that emerge from them and

to apply those principles in a structured and

coherent manner.

70. The expression “prima facie true”, which lies

at the heart of Section 43D(5), does not invite a

detailed examination of evidence, nor does it

require the Court to assess the probability of

conviction. Equally, it does not reduce the judicial

role to a mechanical acceptance of the

prosecution’s assertions. The statutory standard

contemplates a threshold inquiry of limited but

real content.

71. At this stage, the Court is required to

examine whether the material relied upon by the

prosecution, taken at face value and without

rebuttal, discloses the essential ingredients of the

offences alleged against the accused. The inquiry

is one of statutory plausibility, not evidentiary

sufficiency. The Court tests the allegations

against the legal ingredients of the offence, not

against possible defences or competing factual

narratives.

72. The discipline imposed by Section 43D(5)

necessarily circumscribes the nature of judicial

scrutiny permissible at the bail stage. The Court is

not called upon to weigh the probative value of

evidence, to assess its admissibility, or to

determine whether the prosecution version will

ultimately withstand trial. Any exercise

approximating a mini-trial at this stage would

transgress the statutory boundary deliberately

drawn by Parliament.

73. Such premature adjudication is not merely

procedurally inappropriate; it carries institutional

consequences. It risks prejudging issues reserved

for trial, distorting the adversarial process, and

undermining the legislative intent underlying the

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special bail regime. Section 43D(5) therefore

demands judicial restraint, not judicial abstention,

at the pre-trial stage.

XXXXXXX

80. From the foregoing discussion, certain

propositions governing the application of Section

43D(5) emerge with clarity. First, the provision

embodies a deliberate legislative departure from

ordinary bail jurisprudence, premised upon the

distinctive nature of offences under Chapters IV

and VI of the Act. Second , the expression “prima

facie true” mandates a threshold judicial inquiry

which is neither perfunctory nor adjudicatory,

requiring the Court to examine whether the

prosecution material, taken at face value,

discloses the essential statutory ingredients of the

alleged offence. Third, the inquiry is necessarily

accused- specific, directed to the role and

attribution qua the individual, and does not admit

of collective or undifferentiated treatment merely

because allegations arise from a common

transaction or conspiracy. Fourth , the bail stage

under Section 43D(5) is not a forum for

evaluating defences, weighing evidence, or

conducting a mini- trial; judicial restraint at this

stage is not an abdication of duty but a fulfilment

of the statutory mandate. These propositions,

read together, define the contours of judicial

power and responsibility under the provision.

81. The correct application of Section 43D(5),

therefore, requires the Court to undertake a

structured inquiry confined to the following:

i. whether the prosecution material, accepted as

it stands, discloses a prima facie case satisfying

the statutory ingredients of the offence alleged;

ii. whether the role attributed to the accused

reflects a real and meaningful nexus to the

unlawful activity or terrorist activity proscribed

under the Act, as distinguished from mere

association or peripheral presence; and

iii. whether the statutory threshold is crossed qua

the individual accused, without embarking upon

an assessment reserved after full- fledged trial.

82. Where these requirements are met, the

statutory restraint on the grant of bail must

operate with full force; where they are not, the

embargo stands lifted. This approach preserves

the legislative purpose of the Act, and ensures

that the exceptional nature of the bail regime

under Section 43D(5) is neither diluted by

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overreach nor distorted by mechanical

application….”

(emphasis supplied)

28. Upon the careful consideration of the aforesaid provisions,

we are of the considered view that Section 43D(5) of the UAPA

places a statutory embargo on the grant of bail if the Court, on a

perusal of the charge-sheet, is of the opinion that there are

reasonable grounds for believing that the accusation against such

person is prima facie true.

29. Upon the assiduous perusal of the judgments cited at the Bar

by the respective parties, we are of the view that jurisprudence

surrounding Section 43D(5) is governed by two vital pillars laid

down by the Hon’ble Supreme Court and they are as follows:

29.1The Prima Facie True Test: In NIA v. Zahoor Ahmad

Shah Watali (supra), the Hon’ble Supreme Court categorically

clarified that the degree of satisfaction required at the bail stage is

only to assess whether the accusations are prima facie true based

on broad probabilities. It is further held that the Court cannot

evaluate the admissibility, reliability, or weigh the evidence as if

conducting a mini-trial. The prosecution material must be

accepted at face value. Moreover, as correctly pointed out by the

learned ASG, since charges have already been framed in the

present case, the material has already crossed a preliminary

judicial filter, thereby elevating the threshold for the accused. The

relevant extracts of the ratio laid down by the Hon’ble Supreme

Court in Zahoor Ahmad Shah Watali (supra) is reproduced

hereunder:

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“26. Be it noted that the special provision,

Section 43-D of the 1967 Act, applies right from

the stage of registration of FIR for the offences

under Chapters IV and VI of the 1967 Act until

the conclusion of the trial thereof. To wit, soon

after the arrest of the accused on the basis of the

FIR registered against him, but before filing of the

charge-sheet by the investigating agency; after

filing of the first charge-sheet and before the

filing of the supplementary or final charge-sheet

consequent to further investigation under Section

173(8) CrPC, until framing of the charges or after

framing of the charges by the Court and recording

of evidence of key witnesses etc. However, once

charges are framed, it would be safe to assume

that a very strong suspicion was founded upon

the materials before the Court, which prompted

the Court to form a presumptive opinion as to the

existence of the factual ingredients constituting

the offence alleged against the accused, to justify

the framing of charge. In that situation, the

accused may have to undertake an arduous task

to satisfy the Court that despite the framing of

charge, the materials presented along with the

charge-sheet (report under Section 173 CrPC), do

not make out reasonable grounds for believing

that the accusation against him is prima facie

true. Similar opinion is required to be formed by

the Court whilst considering the prayer for bail,

made after filing of the first report made under

Section 173 of the Code, as in the present case.

27. For that, the totality of the material gathered

by the investigating agency and presented along

with the report and including the case diary, is

required to be reckoned and not by analysing

individual pieces of evidence or circumstance. In

any case, the question of discarding the document

at this stage, on the ground of being inadmissible

in evidence, is not permissible. For, the issue of

admissibility of the document/evidence would be a

matter for trial. The Court must look at the

contents of the document and take such

document into account as it is.

xxxxxxxx

46. In Niranjan Singh Karam Singh Punjabi

(supra), the Court essentially considered the

scope and ambit of the enquiry by the trial court

at the stage of “discharge”. In that context, the

Court made observations in paras 6 and 8 of the

said judgment which must be understood

accordingly. In the present case, however, we are

called upon to consider the prayer for bail in the

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context of the purport of the proviso to Section

43-D(5) of the 1967 Act which mandates that the

accused person involved in the commission of

offence referable to Chapters IV and VI of the

1967 Act shall not be released on bail or on bond.

However, the Court may release such accused on

bail only if it is of the opinion, on perusal of the

case diary and/or the report made under Section

173 of CrPC that there are “no reasonable

grounds” for believing that the accusation against

such person is prima facie true. Conversely, if in

the opinion of the Court, there are reasonable

grounds for believing that the accusation against

such person is prima facie true, the question of

granting bail would not arise as the bar under the

first part of the proviso of no bail in such cases

would operate…”

(emphasis supplied)

29.2 The Article 21 Safeguard:

न्याय के इस कक्ष में, अक्सर हमारे सामने दो अत्यंत पवित्र

सिद्धांतों का टकराव होता है। एक ओर है भारतीय संविधान का

अनुच्छेद 21 व्यक्तिगत स्वतंत्रता (Personal Liberty) की

धड़कन। और दूसरी ओर है एक संप्रभु राष्ट्र की सुरक्षा और

अखंडता। सामान्य आपराधिक न्याय प्रणाली का स्वर्ण नियम

कहता है: “Bail is the rule, jail is an exception.”

Learned counsel for the appellants have relied on the dictum

enunciated by the Hon’ble Supreme Court in K.A. Najeeb (supra),

wherein a three-judge bench categorically held that the statutory

restriction under Section 43D(5) cannot render the constitutional

guarantee of personal liberty as enshrined under Article 21 of the

Constitution of India illusory. The Hon’ble Court held that the

rigors of Section 43D(5) will melt down where there is no

likelihood of trial being completed within a reasonable time and

the period of incarceration already undergone has exceeded a

substantial part of the prescribed sentence. The said principle was

recently reaffirmed by the Hon’ble Supreme Court with formidable

clarity in Syed Iftikhar Andrabi (supra) wherein the Hon’ble

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Supreme Court categorically stated that the ratio encapsulated in

K.A. Najeeb (supra) is a binding law entitled to the protection of

stare decisis and the same cannot be circumvented or diluted. It is

further reiterated and clarified that anti-terror legislation cannot

create a parallel constitutional order where liberty stands

suspended indefinitely, and that the dictum enunciated in the case

of Zahoor Ahmed Shah Watali (supra) cannot be used as a

universal anti-bail trump card to justify endless pre-trial detention

of the accused.

30. However, by way of the dictum encapsulated by the Hon’ble

Supreme Court in Gulfisha Fatima (supra), it has been held that

Article 21 of the Constitution of India is of seminal importance but

where the Parliament in the special statute conditioned the grant

of bail upon the satisfaction of a defined statutory threshold, a

constitutional court cannot treat such constraint as voidable. The

relevant extract of the aforesaid dictum is reproduced as under:-

“428. The position of law that emerges may be stated

with clarity. The right to personal liberty enshrined

under Article 21 is of seminal importance, and

prolonged pre-trial incarceration is a matter of serious

constitutional concern. At the same time, where

Parliament has, in the context of a special statute,

conditioned the grant of bail upon the satisfaction of a

defined statutory threshold, a constitutional court

cannot treat such restraint as avoidable. Section

43D(5) of the Unlawful Activities (Prevention) Act,

1967, represents a legislative judgment that offences

alleged to implicate the security of the State warrant a

distinct bail regime. The constitutional role of the

Court, therefore, is neither to mechanically enforce the

statutory embargo nor to neutralise it by invocation of

liberty as straight-jacket formula, but to apply it with

disciplined scrutiny. Where the prosecution material,

taken at face value, discloses reasonable grounds for

believing the accusation to be prima facie true, the

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statutory restraint must ordinarily operate. Where it

does not, liberty must prevail. Article 21 thus

commands the manner of application of the statute; it

does not dissolve the statutory condition itself.

429. It is in this constitutional and statutory framework

that the individual appeals have been examined based

on facts obtained. The Court has consciously avoided a

collective or uniform approach. Each appellant has

been assessed on the basis of the role attributed, the

nature of material relied upon, and the stage of the

proceedings, strictly within the limited compass of

adjudication for grant of bail...”

(emphasis supplied)

APPLICABILITY OF THE JURISPRUDENCE LAID DOWN BY

THE HON’BLE SUPREME COURT TO THE PRESENT FACTS:

31. For better adjudication of the present bunch of appeals and

the core issue formulated herein, this Court must balance the

statutory mandate as enshrined under Section 43D (5) of the

UAPA against the constitutional safeguards as enshrined under

Article 21 of the Constitution of India, keeping in mind the specific

facts of the present case. In the present bunch of appeals, we

observe the following significant considerations:

i. The NIA has completed a detailed and comprehensive

investigation, filed the charge-sheet, and the learned Trial Court

has already framed charges against the accused-appellants. This

establishes that upon a prima facie evaluation, there exists

sufficient material to proceed against the appellants, and

therefore, the foundational test laid down by the Hon’ble Supreme

Court in Zahoor Ahmad Shah Watali (supra) is squarely met at

this stage.

[2026:RJ-JP:40450-DB] (23 of 26) [CRLAD-438/2024]

ii. The nature of the crime alleged against the present accused-

appellants is not an ordinary offence; it is a calculated act of terror

designed to strike fear into the populace at large. The prosecution

has alleged a deep-rooted, organized criminal conspiracy involving

a group of persons, including the appellants, who allegedly played

active and specific roles in facilitating the crime. A conspiracy of

this nature is often established by circumstantial material, tacit

understandings, and electronic records (CDRs), which the

prosecution has placed on record.

iii. While the learned counsel appearing on behalf of the

accused-appellants have cited the judgment passed by the Hon’ble

Supreme Court in K.A. Najeeb (supra) and Syed Iftikhar

Andrabi (supra) regarding prolonged incarceration of

approximately four and a half years, we must view this in the

context of the trial’s progress. Unlike cases where the trial has not

even commenced or where hundreds of witnesses remain

untouched, the learned ASG has demonstrated that the trial in the

present case is proceeding at a rapid pace on a day-to-day basis.

The said material fact has also been corroborated by the fact that

the prosecution has reduced its witness list significantly, and

approximately 30 primary witnesses have already been examined,

and therefore, it cannot be said that the trial is entirely stalled or

that there is no likelihood of trial being completed within a

reasonable time. We are of the considered view that the factual

matrix involved in the present case is distinguishable from the

extreme delay that warranted the invocation of the Article 21 of

the Constitution “melt down” principle as encapsulated by the

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Hon’ble Supreme Court in K.A. Najeeb (supra) and Syed

Iftikhar Andrabi (supra), and therefore, the said dicta are not

applicable to the present case.

iv. A prima facie consideration, which is neither perfunctory nor

adjudicatory, requires the Court to examine whether the

prosecution material, taken at face value, discloses the essential

statutory ingredients of the alleged offences. Upon perusal of the

detailed charge-sheet placed on record by the respondent-NIA, we

find that the accusations against the appellants regarding their

participation in the conspiracy are prima facie made out.

v. We are conscious of the fact that the inquiry at the bail stage

must be accused-specific. However, it is a well-settled proposition

of law that the stage of bail does not require or permit the

evaluation of defenses, such as the language of the disclosure

statements as contended by the learned counsel appearing on

behalf of the appellant, the weighing of evidence, or the

conducting of a mini-trial regarding the admissibility of electronic

evidence, as these issues are strictly reserved for the learned Trial

Court to examine during the course of trial.

32. Coming to the facts emerging from the present bunch of

appeals, we are of the view that the brutal murder by entering the

shop of the deceased-victim in broad daylight, coupled with the

recording and dissemination of the act of such a grave and

heinous nature to create communal disharmony and terror, strikes

at the very foundation of the State. Criminal conspiracy for such

an organized terror activity has a profound and devastating impact

[2026:RJ-JP:40450-DB] (25 of 26) [CRLAD-438/2024]

on society at large, far exceeding that of an individual, ordinary

crime. In such matters, falling within the statutory framework of

the UAPA, and relying upon the above-discussed precedents laid

down by the Hon’ble Supreme Court, we are of the considered

view that the grant of bail must deviate from the ordinary rule,

and a strict approach must be adopted unless the rigors of Section

43D(5) are successfully dislodged by the accused, which the

accused-appellants have failed to do in the present instance.

CONCLUSION:

33. Considering the overall facts and circumstances of the

present case, and without commenting upon the final merits of the

evidence which is subject to trial, we find that the gravity of the

offence, the specific roles attributed to the appellants in the larger

criminal conspiracy, and the heinous nature of the terrorist act

disentitle the accused-appellants to the benefits of bail, at this

stage, as it is observed that trial is progressing actively and at a

rapid pace, negating the sole ground of delay urged by the learned

counsel for the appellants as enshrined under Article 21 of the

Constitution of India.

34. Consequently, we are not inclined to allow the present

appeals preferred by the appellants under Section 21(4) of the

NIA Act. The impugned orders dated 12.11.2024 and 09.10.2024

passed by the learned Trial Court dismissing the bail applications

qua the accused-appellants are hereby sustained and affirmed.

35. Accordingly, the present batch of D.B. Criminal Appeals

stands dismissed.

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36. It is, however, made clear that any observations made

hereinabove are solely for the purpose of deciding the present bail

appeals and shall not be construed as an expression of opinion on

the merits of the case during the trial. The learned Trial Court shall

proceed with the trial uninfluenced by the observations made

hereinabove.

(SAMEER JAIN),J (SANJAY K. AGRAWAL),CJ

54-58/JKP