Right to Bail Cannot Be Denied Merely Due to Statutory Bar If Trial Is Unlikely to Commence: Kerala High Court Grants Bail to Accused in ISIS-Linked UAPA Case

Long Incarceration Without Commencement of Trial Violates Article 21 — Rigour of Section 43-D(5) UAPA Cannot Override Constitutional Liberties - Kerala High Court granted bail to an accused in a case registered under the Unlawful Activities (Prevention) Act, 1967 (UAPA), despite the statutory embargo under Section 43-D(5) of the Act. The Court held that when trial is not likely to commence in the near future and the accused has undergone prolonged incarceration, the constitutional guarantee of personal liberty under Article 21 must override statutory restrictions.
Justice P.V. Balakrishnan, delivering the judgment for the Division Bench also comprising Justice Raja Vijayaraghavan V, declared: “Statutory restrictions like Section 43-D(5) of UAPA do not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.”
The appellant, Shiyas T.S., was the 3rd accused in NIA SC No. 01/2024 pending before the Special Court for NIA Cases, Ernakulam. He was accused of having been a member of an ISIS module in Kerala, taking oath of allegiance to the proscribed organization, and attempting to recruit vulnerable youths while soliciting funds for pro-ISIS activities. He was further charged with conspiring to conduct reconnaissance of Hindu temples and prominent individuals for planned attacks.
The charges against him included Sections 120B of the Indian Penal Code and Sections 20, 38, and 39 of the UAPA. He was arrested on August 2, 2023, and had remained in custody since.
“Denial of Bail Must Be Justified on Constitutional Grounds of Reasonableness, Fairness, and Proportionality”
The appellant contended that he had not been served the grounds of arrest in writing, violating Article 22(1) of the Constitution. Although the Court acknowledged the ruling in Pankaj Bansal v. Union of India, which mandates written communication of arrest grounds, it clarified that the decision was prospective in effect. Since the appellant was arrested before the ruling, he could not claim the benefit.
However, the High Court focused on a broader constitutional issue — prolonged incarceration without commencement of trial. The Court noted that: “As on today, charge has not been framed against him and further investigation is going on… trial is not likely to commence or end in the near future.”
Referring extensively to the Supreme Court’s ruling in Union of India v. K.A. Najeeb, the Court reiterated: “The rigours of such statutory provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.”
The Court reaffirmed the doctrine laid down in Shoma Kanti Sen v. State of Maharashtra, Athar Parwez v. Union of India, and Javed Gulam Nabi Shaikh, observing: “Pre-trial detention must be justified by necessity — to collect evidence, prevent tampering, or ensure justice. But liberty under Article 21 cannot be curtailed indefinitely without fair, just and reasonable cause.”
“When Trial Is Illusory and Detention Is Prolonged, Courts Must Act as Guardians of Liberty”
Emphasizing proportionality and constitutional rights, the High Court held that in light of the continuing investigation, the voluminous evidence (147 witnesses, 161 documents), and the uncertainty of trial commencement, bail could not be denied solely due to UAPA's Section 43-D(5). The Court also took note that a similarly placed co-accused had been granted bail by the Supreme Court after 11 months in custody.
Thus, the Court concluded: “This is a fit case where the appellant, who is undergoing incarceration since 02.08.2023, can be released on bail.”
The Kerala High Court allowed the appeal and granted bail to the accused, subject to stringent conditions to prevent misuse or flight from justice, including restrictions on mobile phone usage, mandatory reporting to police, and prohibition from engaging in any activity similar to the alleged offence.
This judgment underscores the evolving judicial approach to balancing national security concerns under UAPA with fundamental rights, particularly when judicial delay threatens to turn preventive detention into punitive imprisonment.
 

Date of Decision: 8 April 2025