The Jharkhand High Court has reaffirmed that prolonged custody and parity with co-accused cannot override the stringent bail restrictions under the Unlawful Activities (Prevention) Act, 1967, unless the prosecution’s case is prima facie untrue. This judgment reinforces the legislative intent behind Section 43D(5) and clarifies the limits of constitutional remedies in national security cases.
Background & Facts
The Dispute
The appellant, Kundan Kumar (A-28), was arrested on 19.07.2021 in connection with a terrorist conspiracy involving arson, attacks on police, and arms trafficking in the coal-mining region of Ranchi. The case originated as Balumath P.S. Case No. 234/2020, which was later transferred to the National Investigation Agency (NIA) under Section 6(5) of the NIA Act, 2008, due to its cross-border implications and scale of violence.
Procedural History
The appellant’s bail journey has been marked by repeated applications and dismissals:
- 19.07.2021: Appellant arrested from a flat in Namkum, Ranchi, where arms and ammunition were recovered
- 28.01.2023: First bail application rejected by Special Judge, NIA Ranchi
- 30.06.2023: Jharkhand HC dismissed Criminal Appeal (DB) No. 298 of 2023, finding a prima facie case under UAPA
- 20.09.2025: Fourth bail application (Misc. Cr. Appl. No. 1738 of 2025) rejected by Special Judge
- 11.03.2026: Present appeal dismissed by Division Bench
Relief Sought
The appellant sought regular bail on grounds of: (1) over four years of custody; (2) delay in trial due to large witness list; and (3) parity with co-accused who had been granted bail.
The Legal Issue
The central question was whether prolonged custody and parity with co-accused, in the absence of any change in factual circumstances, can override the statutory bar under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, when the prosecution’s case is prima facie true.
Arguments Presented
For the Appellant
Learned counsel contended that:
- The appellant has been in custody since July 2021, exceeding four years, violating the right to speedy trial under Article 21
- The trial is unlikely to conclude soon due to 129 remaining witnesses
- Several co-accused, including Santosh Kumar @ Banti Yadav and Prabhat Kumar Yadav, have been granted bail on similar charges of harbouring terrorists
- No incriminating material was recovered directly from the appellant’s person, and he was not named in the original FIR
- Reliance was placed on Union of India v. K.A. Najeeb to argue that undue delay justifies bail despite statutory restrictions
For the Respondent
The NIA countered that:
- The appellant was directly involved in arms procurement and sheltering absconding terrorists, as per paragraphs 17.23, 17.24, 17.26, and 17.36 of the supplementary charge-sheet
- Arms and 27 cartridges were recovered from the flat where he was present
- His role is identical to that of Akash Kumar Roy (A-27), whose bail was previously rejected by the same Court
- 26 witnesses have already been examined; the trial is at an advanced stage
- The Supreme Court in Gurwinder Singh and Gulfisha Fatima has held that delay alone cannot displace statutory bail restrictions in UAPA cases
- Parity cannot be claimed where roles differ materially
The Court's Analysis
The Court undertook a rigorous analysis of Section 43D(5) of the UAPA, which mandates that bail shall not be granted unless the court is satisfied that the accusations are prima facie untrue. The Court emphasized that this provision reflects Parliament’s intent to treat terrorism-related offences as exceptional, requiring heightened judicial restraint.
"The law does not contemplate an either-or approach. Nor does it contemplate an unstructured blending of statutory and constitutional considerations. What is required is disciplined judicial scrutiny that gives due regard to both."
The Court distinguished K.A. Najeeb by noting that constitutional relief under Article 21 is available only when delay is so excessive as to render detention punitive, and even then, it must be balanced against the gravity of the offence and the accused’s role. Here, the appellant was not a peripheral actor but an active facilitator of arms supply and safe harbour to absconding terrorists.
The Court examined the role of each co-accused granted bail and found material distinctions: those granted bail were alleged only to have provided shelter, whereas the appellant was directly linked to the receipt and distribution of arms, as corroborated by protected witness testimony and recovery evidence. The Court held that parity cannot be invoked where roles differ in substance.
"Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established."
The Court also rejected the argument that delay in trial justified bail, citing Gulfisha Fatima and Gurwinder Singh, which clarified that delay is not a trump card but a trigger for heightened scrutiny. The NIA’s reduction of witnesses from 345 to 129, with 26 already examined, demonstrated active progress in trial preparation.
The Court further held that the earlier dismissal of bail in 2023 constituted a binding judicial determination of prima facie guilt, and absent new facts, re-litigation was impermissible under the doctrine of judicial discipline.
The Verdict
The appellant’s appeal was dismissed. The Court held that Section 43D(5) UAPA bars bail unless the prosecution’s case is prima facie untrue, and the appellant’s active role in arms trafficking and harbouring terrorists satisfied this threshold. Delay and parity, without material change in circumstances, cannot override this statutory bar.
What This Means For Similar Cases
Parity Requires Role-Based Equivalence
- Practitioners must demonstrate that co-accused were similarly situated in terms of function, access to weapons, and level of conspiracy involvement
- Mere similarity in charges (e.g., "harbouring") is insufficient; the Court will examine actual conduct and evidence
- Bail granted to one accused does not create a precedent for others if their roles differ
Delay Alone Cannot Override UAPA Bail Bar
- Prolonged custody, even exceeding four years, is not a standalone ground for bail under UAPA
- Courts must assess whether delay is attributable to the prosecution or systemic inefficiency
- Pruning of witness lists and progress in trial proceedings negate claims of unreasonable delay
Prima Facie Case Must Be Scrutinized at Threshold
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The burden is on the accused to show that the prosecution’s material is demonstrably false or fabricated
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Courts must not engage in trial-like evaluation but must assess whether the allegations, on their face, lack credibility
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Supplementary charge-sheets with witness corroboration and recovery evidence create a strong prima facie case
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If a bail application is dismissed on merit, subsequent applications must introduce new facts or evidence
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Repeated applications without fresh grounds are an abuse of process
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Judicial discipline requires courts to respect prior determinations on prima facie guilt
