Absence of Sanction Under UAPA Section 18 No Ground for Bail When Cognizance Taken of Offences as a Whole: Karnataka High Court Rejects Bail of PFI Leader Shahid Khan

"Section 43-D(5) of UAPA squarely attracted as material shows reasonable grounds to believe allegations are prima facie true" , High Court of Karnataka upheld the trial court’s refusal to grant regular bail to Shahid Khan, an accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA), involved in a wide-ranging terror conspiracy allegedly orchestrated through the now-banned Popular Front of India (PFI). Dismissing his appeal, the Division Bench comprising Justice H.P. Sandesh and Justice Venkatesh Naik T held that the statutory bar on bail under Section 43-D(5) of UAPA applied with full force.

The Court emphasized that the material placed on record "discloses reasonable grounds to believe that the accusations are prima facie true," thereby attracting the embargo under Section 43-D(5), which prohibits the release of an accused unless the court is satisfied to the contrary.

No Substantial Change in Circumstance to Justify Successive Bail Plea

The appellant, Shahid Khan, was arrested on September 22, 2022, and had previously been denied bail by the Special Court on February 21, 2024. His current bail appeal, filed under Section 21(4) of the National Investigation Agency Act, 2008, was based on alleged procedural lapses in the investigation, lack of sanction under Section 18 UAPA, and prolonged incarceration.

The Court reiterated the settled principle that while successive bail applications are not barred per se, they can only be entertained on showing a "demonstrable change in circumstance." In the present case, the Court noted, “the grounds urged are substantially similar to those raised in earlier applications, barring contentions on delay and sanction,” which were insufficient to justify re-litigation of the bail issue.

Absence of Sanction Under Section 18 Does Not Preclude Continuation of Trial

One of the key arguments raised by Shahid Khan’s counsel was that no sanction had been granted under Section 18 of UAPA (conspiracy), rendering the prosecution under that section defective. The Court, however, clarified the scope of Section 45 UAPA on sanction requirements, holding:

“Section 45 of UAP Act mandates that sanction is a pre-condition for the Court to take cognizance of an offence and not necessarily tied to a particular accused. The absence of sanction qua a particular provision does not ipso facto entitle the accused to bail.”

The Court added that since cognizance had already been taken for scheduled offences, the lack of sanction specifically for Section 18 did not invalidate the trial proceedings nor did it constitute a ground for bail.

Procedural Irregularities in Seizure of Cash Not Sufficient to Dislodge Prima Facie Case

Shahid Khan had also alleged that the seizure of cash from his residence violated the mandatory procedure under Chapter V and Section 25 of the UAPA, thereby undermining the charges under Section 17 (raising funds for terrorist acts). While the Court did not dismiss the possibility of procedural lapses, it categorically held:

“Any procedural lapse in the seizure of cash may, at best, be treated as an irregularity and does not go to the root of the case of the prosecution.”

The Bench found that the allegations of terrorist funding were backed by sufficient materials indicating his active role in raising and channelling funds through PFI’s front organisations. Whether the strict ingredients of Section 17 or 18 are made out is, the Court held, “a matter for trial.”

Case Diary Cannot Be Summoned by Accused for Bail Appeal

In a parallel application (I.A. No. 2 of 2025), the appellant had sought to summon the entire case diary under Section 482 CrPC. Rejecting the same, the High Court reaffirmed the principle under Section 172(2) CrPC that the case diary can be summoned “only by the Court for its own aid,” and not at the instance of the accused.

“The appellant has no locus to call for the case diary. It is only for the reference of the Court, and cannot be made available to the accused,” the Bench ruled.

Prolonged Incarceration Not a Ground for Bail in UAPA Offences Without Exceptional Circumstances

The Court took note of the fact that Shahid Khan had been in custody for over two years and the trial was likely to be prolonged due to the large number of witnesses (707 cited in the charge sheet). Nonetheless, it refused to grant bail, citing the statutory bar and absence of exceptional circumstances:

“Mere long incarceration and pendency of trial, in absence of exceptional circumstances, cannot override statutory embargo under Section 43-D(5) UAPA.”

Summing up, the Karnataka High Court concluded that the Special Court had committed no illegality or arbitrariness in denying bail to Shahid Khan. The accusations against him, including radicalisation of youth, conspiracy to wage war against the State, and raising funds for terrorist activities under the aegis of PFI, were supported by prima facie material. The statutory bar under Section 43-D(5) UAPA thus applied, and no relief could be granted to the appellant.

“The trial Court has dealt with all aspects of the material in its order and has rightly rejected the bail application of the appellant, the same does not require interference at the hands of this Court.”

The appeal and the interim application seeking case diary were both dismissed.

Date of Decision: January 23, 2026