Supreme Court Clarifies UAPA Bail Bar for Non-Citizens Applies Only on Proved Illegal Entry

New Delhi, October 27: The Supreme Court on October 27 dismissed the Union of India's appeal against bail granted to Sri Lankan national Mohamed Rifas @ Mohamed Rigbas in a case under the Unlawful Activities (Prevention) Act, holding that the special restriction on UAPA bail for non-citizens applies only where the prosecution proves unauthorised or illegal entry into India.

Justices Aravind Kumar and Vipul M. Pancholi delivered the order in Union of India v. Mohamed Rifas @ Mohamed Rigbas, arising from SLP (Crl.) No. 7177 of 2024. The Bench refused to interfere with the bail and explained how trial courts must read the bar in Section 43D(7) when the accused is a foreign national.

Two questions came up. One concerned foreign nationality under the anti-terror law. The other concerned default bail after the prosecution missed the chargesheet deadline. The Court kept the bail in force on both counts.

Section 43D of the Unlawful Activities (Prevention) Act lays down a stricter test than ordinary criminal law. It gives longer time for investigation, limits release where the accusations appear prima facie true, and adds a separate clause for persons who are not citizens of India. That last clause, Section 43D(7), was the focus of the Union's appeal.

According to the prosecution, the bar operated because the accused is a Sri Lankan national charged under the Act. The defence opposed that reading and defended the bail. The Court rejected the wider interpretation. Foreign nationality alone, it said, does not close the door to bail.

When UAPA bail bar applies to foreigners

Section 43D(7), the Bench held, is attracted only if the prosecution proves that the non-citizen entered India unauthorisedly or illegally. The burden on that fact rests on the prosecution. A mere assertion of foreign citizenship, without material to show how the person entered the country, will not trigger the special bar.

A later overstay, the Court said, does not by itself amount to illegal entry for this provision. A person shown to have crossed the border without authority stands apart from a person whose presence may have become irregular later for other reasons. Only the first category, proved by evidence, falls within the entry-based bar.

For trial courts deciding bail under UAPA where the accused holds a foreign passport or is said to be a foreign national, that distinction matters. The court cannot assume illegal entry from nationality. It must look for specific prosecution material on entry and decide whether unauthorised entry has been proved at the bail stage.

The ordinary rigour of the Act remains. Courts must still apply the prima facie test under Section 43D(5) and examine the police report, statements and documents collected during investigation. What changes is the use of citizenship as a shortcut. Judges will now need to record a finding on entry, based on what the prosecution has placed on record, before refusing bail on that ground.

Investigating agencies face a direct task if they rely on Section 43D(7). The case diary and the bail reply must give facts on the place, time and manner of entry. Details of border crossing, travel documents, visa records, or findings that no valid documents existed would need to be shown. Without such material, the court will treat the entry bar as not established.

Burden on prosecution to prove entry

It is not for the accused, the Bench said, to prove lawful entry at the stage of seeking bail. The State seeks to invoke an exception that denies bail to a class of persons. It must prove the facts that bring the accused within that class.

That follows the ordinary rule that the party asserting a disabling fact must establish it. In bail hearings, where liberty is at stake and the record is still developing, the Court said a bare plea of foreign nationality cannot replace proof. Allegations must be supported by documents or investigation findings that the judge can test.

The wider UAPA Act bail framework already gives weight to prosecution material. Police reports, protected witness statements and forensic reports go before the court and are assessed for prima facie truth. The October 27 ruling keeps that structure intact but stops an additional layer from being added without proof. Citizenship alone closes no inquiry; entry must be shown.

At the first hearing itself, lawyers for foreign nationals are likely to use this part of the order. The defence can ask the court to call upon the prosecution to state its case on entry and point to the pages in the chargesheet or case diary that support it. Where the prosecution has no such material, the court can decide bail on the usual prima facie test and other factors such as flight risk and tampering.

Conditions to meet flight risk remain open to courts. Surrender of passport, curbs on movement, reporting to the local police or investigating officer, and sureties can still be imposed where bail is granted. The ruling on Section 43D(7) does not take away the power to impose strict terms to secure presence at trial, particularly where the accused is not an Indian citizen.