Trial Courts Must Strictly Follow Mandate Of Section 43D(5) UAPA To Record Prima Facie Finding Before Granting Bail: Delhi High Court

Delhi High Court, in a significant ruling dated July 21, 2026, held that trial courts must strictly adhere to the statutory mandate of Section 43D(5) of the Unlawful Activities (Prevention) Act and record a prima facie finding on the truthfulness of accusations before granting bail.

A division bench of Justice Prathiba M. Singh and Justice Vikas Mahajan observed that the trial court failed to arrive at any conclusion regarding the innocence of the accused, erroneously granting bail merely on the grounds of trial delay and reliance on oral testimonies.

The National Investigation Agency (NIA) challenged the orders of the Principal District & Sessions Judge granting regular bail to Khurram Parvez and Irfan Mehraj. The accused were charged under various sections of the UAPA and IPC for allegedly raising terror funds through an NGO and distributing them to families of slain militants and stone-pelters in Jammu and Kashmir. The trial court had granted them bail on the premise that the charges had not been framed and the allegations rested mostly on oral witnesses whose veracity would take time to be tested.

The primary question before the court was whether the trial court could grant regular bail in a UAPA case without making a specific finding under the proviso to Section 43D(5) regarding the prima facie truthfulness of the allegations. The court was also called upon to determine if the impugned bail orders warranted an immediate stay given the serious national security implications raised by the investigating agency.

Failure To Record Prima Facie Finding

The bench critically examined the trial court's reasoning for granting bail, noting that the lower court completely bypassed the strict requirements of Section 43D(5) of the UAPA. The High Court observed that the statutory framework requires a judicial mind to evaluate whether there are reasonable grounds to believe the accusations are prima facie true. The court noted that the judgment of the Trial Court clearly reveals that it failed to come to any conclusion in terms of the proviso to Section 43D(5).

Documentary Evidence Ignored By Trial Court

The court highlighted a glaring omission in the trial court's assessment, pointing out that the NIA's chargesheet contained substantial documentary evidence, not just oral testimonies. The bench noted that the trial court's two-pronged reasoning—relying on the delay in framing charges and the supposed exclusivity of oral evidence—was legally insufficient. The court remarked that a perusal of the chargesheet shows documentary evidence is relied upon, and therefore, there ought to have been a discussion in this regard in the impugned orders.

Trial Courts Bound By Statutory Mandate

Emphasizing the limits of the trial court's jurisdiction in UAPA cases, the High Court held that lower courts cannot exercise inherent or constitutional powers to bypass statutory embargoes on bail. The bench stressed that while constitutional courts might have wider latitude, trial courts must strictly apply the threshold test laid down in the special statute.

> "The ld. Trial Court is not a Constitutional Court and ought to, in the prima facie opinion of this Court, strictly have gone by the mandate of the statute."

Appellate Court Must Consider Statutory Threshold

The bench underscored its own duty to evaluate the case against the strictures of UAPA. The High Court observed that at the stage of reviewing the grant of bail, it is obligated to consider the mandate of Section 43D(5) and reach its own prima facie finding on the serious allegations raised by the NIA. The agency had alleged that the accused routed funds through a complex financial network and distributed them to families of active or killed Hizbul Mujahideen cadres.

Additional Stringent Conditions Imposed

Despite finding fault with the trial court's legal reasoning, the High Court declined to immediately stay the operation of the bail orders, considering that the accused had already been granted relief subject to various conditions. Instead, bearing in mind the serious nature of allegations, the court deemed it fit to impose further stringent conditions for bail without opining on the final merits of the matter.

The accused were directed to report to the Chief Investigating Officer at the NIA Headquarters twice a week. The court further restricted them from participating in any activities or organizations linked to the subject matter of the case, including the Jammu & Kashmir Coalition of Civil Societies. They were also barred from circulating any literature, attending rallies, or establishing communication with co-accused persons or individuals indulging in similar activities.

The High Court issued notice on the NIA's appeals and directed the respondents to file their replies within two weeks. While refraining from immediately cancelling the bail, the court tightened the restrictions on the accused to ensure they cannot engage in activities prejudicial to national security while the main challenge regarding the application of Section 43D(5) remains pending consideration.

Date of Decision: 21 July 2026