In a significant development, the Supreme Court of India has ruled that the precedent set by the Zahoor Ahmad Watali judgment will not apply if the evidence presented in a case under the Unlawful Activities (Prevention) Act (UAPA) is of low probative value on surface level analysis. The court’s decision came in the context of granting bail to activists Vernon Gonsalves and Arun Ferreira, who were accused in the Bhima Koregaon case.
The Watali principle, established in 2019 by a bench headed by former judge AM Khanwilkar, had set aside the bail granted by the Delhi High Court to a Kashmiri businessman. The high court had found no reasonable grounds to believe that the allegations against the accused under the UAPA were prima facie true and had disregarded certain pieces of evidence as inadmissible.
The National Investigating Agency (NIA) challenged the Delhi High Court’s decision, arguing that the court had conducted a mini-trial and exceeded its jurisdiction. The Supreme Court, while criticizing the high court’s approach, emphasized that at the pre-trial stage, the court should not venture into the merits and demerits of the case. Instead, it should focus on recording a finding based on the broad probabilities regarding the accused’s involvement in the alleged offense.
The Watali judgment restricted the examination of a court at the pre-trial stage to the prosecution’s version of events, placing a bar on a detailed analysis of the prosecution’s case when considering bail under Section 43D (5) of the UAPA. This interpretation allowed courts to consider evidence placed on record by the NIA, irrespective of its admissibility or probative value, to deny bail. Consequently, undertrials facing UAPA charges faced increased difficulty in obtaining bail.
However, subsequent judgments, such as KA Najeeb and Thwaha Fasal, made progress in liberalizing the bail jurisprudence under the UAPA. In Najeeb (2020), the Supreme Court upheld the power of a constitutional court to grant bail to individuals accused under the UAPA, even if Section 43D (5) applied, on the grounds that their right to a speedy trial under Article 21 had been violated. Thwaha Fasal (2021) further tempered the severity of the Watali principle by stating that the embargo on bail under Section 43D (5) would not apply if the charge sheet did not reveal a prima facie case.
In the recent case of Vernon Gonsalves, the Supreme Court held that a bail application under Section 43D (5) of the UAPA must satisfy the prima facie test set out in the Watali judgment, including at least a surface analysis of the probative value of evidence. If the court is not satisfied with the worth of the probative value of such evidence, the bail application would not pass muster. This decision introduces a new layer of analysis, allowing for the consideration of low-value evidence while adhering to the precedent.
The court also emphasized the duty of the judiciary to preserve the liberty and rights of UAPA accused, particularly in cases involving grave offenses. It drew on a principle established in the context of the now-repealed Terrorist and Disruptive Activities (Prevention) Act, 1987, stating that the court’s duty becomes more onerous when dealing with stringent provisions.
The ruling in Vernon marks a departure from the Watali precedent or, at the very least, a dilution of its scope. By allowing for a shallow analysis of the probative value of evidence, the Supreme Court has made it more feasible for UAPA undertrials, who often face prolonged incarceration, to seek and obtain bail.
Case Details:
– Vernon v. State of Maharashtra | Criminal Appeal No. 639 of 2023
– Arun v. State of Maharashtra | Criminal Appeal No. 640 of 2023
– Citation: 2023 LiveLaw (SC) 575
Source: [LiveLaw](https://www.livelaw.in/top-stories/uapa-watali-precedent-wont-apply-if-evidence-is-of-low-probative-value-on-surface-level-analysis-supreme-court-234489)
Written by: Shriya Ayalasomayajula, College name: Nyaya Vidya Parishad, Intern at Legal Vidhiya
