In a significant judgment, the Jammu and Kashmir and Ladakh High Court clarified that there is no legal bar on granting bail under Section 13 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Court stated that the strict conditions under Section 43-D(5) of the UAPA do not apply to offences under Chapter III, which includes Section 13.
“The offence under Section 13 does not fall within the purview of Section 43-D(5). So, courts can consider bail under the regular provisions of CrPC,” the Court explained.
Case Background
The case involved Sameer Ahmad Koka, who was earlier charged with multiple offences under UAPA for allegedly supporting the banned terrorist group TRF (The Resistance Front). He was accused of being an Over Ground Worker (OGW) providing logistic help and motivating youth toward unlawful activities.
During the investigation, digital material and posters were seized from co-accused, and Sameer was also named. However, the designated NIA court discharged him from serious charges under Sections 18, 18-B, 39, and 40 of the UAPA, and retained only Section 13.
“Respondent is presumed to be innocent until proven guilty, and if the offence carries a sentence of up to seven years, he was entitled to be bailed out,” the High Court ruled.
The trial court granted him bail, which was challenged by the Union Territory of J&K. The High Court dismissed the appeal, saying that since the charge was only under Section 13, and no recovery was made directly from Sameer, bail was rightly granted.
Justice Sanjay Parihar, delivering the judgment, stressed that constitutional courts still have the power to grant bail even in UAPA cases.
“There is no legal bar under the UAPA or CrPC for granting bail in Section 13 cases. The restrictions of Section 43-D(5) apply only to Chapters IV and VI,” the Court noted.
The bench cited important Supreme Court cases like Union of India v. K. A. Najeeb (2021) and Thawha Fasal v. Union of India (2021) to support the view that courts can override statutory restrictions to protect constitutional rights, especially when the trial is delayed.
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The court also addressed the argument that evidence was examined at the bail stage. It clarified that since the charge/discharge decision was already taken, there was no prejudice to the prosecution.
“The accusations, though serious, were not supported by any direct recovery or previous criminal history. Continued detention would amount to pre-trial punishment,” the Court observed.
In conclusion, the High Court upheld the lower court’s decision, stating it was legally sound and not arbitrary.
Case Title: UT of J&K Through Police Station Chanapora Vs. Sameer Ahmad Koka
