Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

Project Final Draft

REAFFIRMATION OF BAIL NORMS IN ASIF TANHA CASE, A

RECOLLECTION.

SUBMITTED BY: SUBMITTED TO:

Akash Gulati Dr. Prem Kumar
Gautam
Semester-V Assistant Professor (Law)
Section-A
Enr. No. 200101015

1
 ACKNOWLEDGEMENT
It has been really fun to work on this project, and I would like to dedicate my sincere thanks
to Prof. (Dr.) Prem Kumar Gautam for providing me the opportunity to work on this
project and for extending his excellent guidance throughout the course of this project.

I would also like to thank all the other individuals who participated in the survey and helped
me throughout the project to the best of their abilities.

Akash Gulati

2
 TABLE OF CONTENTS

ACKNOWLEDGEMENT.......................................................................................................2

REAFFIRMATION OF BAIL NORMS IN ASIF TANHA CASE, A

JURISPRUDENTIAL RECOLLECTION............................................................................4

THE RATIONALE OF PROVIDING BAIL IN NON-BAILABLE OFFENCES AND

AFFECTING FACTORS........................................................................................................4

BAIL FOR UAPA ACCUSED................................................................................................6

CONCLUDING REMARKS...................................................................................................6

BIBLIOGRAPHY....................................................................................................................8

3
 REAFFIRMATION OF BAIL NORMS IN ASIF TANHA CASE, A
JURISPRUDENTIAL RECOLLECTION.

Recently the three student activists who were arrested and booked under various penal
provisions and the infamous UAPA (The Unlawful Activities (Prevention) Act, 1967) were
granted bail by the Delhi High Court after the same was denied by the special court. The
reasoning and analysis in the judgement regarding the grounds for bail grant follow the true
intent of the provision of bail, while reaffirming the general bail norms, the court also deals
with the problem of misuse of UAPA for its stringent bail norms under Section 43D and
highlights the exception where the stringent bail norms of UAPA loses their application and
bail is granted only on the general bail norms. Let’s take a look at the principles and the
jurisprudence that the court made use of in this current case.

THE RATIONALE OF PROVIDING BAIL IN NON-BAILABLE

OFFENCES AND AFFECTING FACTORS.

The literal meaning of the word bail is a surety. In Sanjay Chandra v CBI, the supreme court
affirmed that the objective of bail is to secure the appearance of the accused person at his
trial. The object of bail is neither punitive nor preventative. Depriving a person of his liberty
is considered punitive, therefore it should only be used when proportion calls for and to
ensure that the accused will stand his/her trial when called upon. The punishment begins after
conviction, and that every man is deemed to be innocent until duly tried and duly found
guilty. Detention in custody pending completion of the trial could be a cause of great
hardship and that should only be used after passing an operative test of “necessity”.

The factors for consideration in cases of courts exercising discretionary power for granting
bail (Ram Govind Upadhyay v. Sudarshan Singh)-

1. While granting bail the court has to keep in mind not only the nature of the
accusations, but the severity of the punishment, if the accusation entails a conviction
and the nature of evidence in support of the accusations.
2. Reasonable apprehensions of the witnesses being tampered with or the apprehension
of there being a threat for the complainant should also weigh with the court in the
matter of grant of bail.

4
 3. While it is not expected to have the entire evidence establishing the guilt of the
accused beyond reasonable doubt but there ought always to be a prima facie
satisfaction of the court in support of the charge.
4. Frivolity in prosecution should always be considered and it is only the element of
genuineness that shall have to be considered in the matter of grant of bail, and in the
event of there being some doubt as to the genuineness of the prosecution, in the
normal course of events, the accused is entitled to an order of bail.”

Reiteration of factors while considering a bail application as recently held in P.

Chidambaram vs. CBI-

1. The nature of accusation and the severity of the punishment in the case of conviction
and the nature of the materials relied upon by the prosecution;
2. Reasonable apprehension of tampering with the witnesses or apprehension of threat to
the complainant or the witnesses;
3. Reasonable possibility of securing the presence of the accused at the time of trial or
the likelihood of his abscondence;
4. Character behaviour and standing of the accused and the circumstances which are
peculiar to the accused;
5. Larger interest of the public or the state

The judges in the current case also provided an emphasis on the Supreme Court’s stance as
held in P. Chidambaram vs. Directorate of Enforcement that, “ultimately the consideration
will have to be on a case to case basis on the facts involved therein and securing the presence
of the accused to stand trial.” And that “the gravity can only beget the length of sentence
provided in law and by asserting that the offence is grave, the grant of bail cannot be
thwarted” which hints at the practice of bail denial in a high number of cases of UAPA with
almost no case-to-case basis consideration, and because of the stringent bail norms in the act,
the current accused was also denied bail prior to the appeal.

All of the factors are weighed against the need for detention and maintaining the liberty of
the accused. The supreme court in Masroor v. State of U.P. remarked that “There is no
denying the fact that the liberty of an individual is precious and is to be zealously protected
by the courts. Nonetheless, such protection cannot be absolute in every situation. The
valuable right of liberty of an individual and the interest of society, in general, must be

5
balanced. Liberty of a person accused of an offence would depend upon the exigencies of the
case.”

While in Moti Ram vs. State of M.P the supreme court regarding the deprivation of liberty
due to denial of bail remarked that, “The consequences of pre-trial detention are grave.
Defendants presumed innocent are subjected to the psychological and physical deprivations
of jail life, usually under more onerous conditions than are imposed on convicted defendants.
The jailed defendant loses his job if he has one and is prevented from contributing to the
preparation of his defence. Equally important, the burden of his detention frequently falls
heavily on the innocent members of his family.”

BAIL FOR UAPA ACCUSED

According to Section 43D(5) in UAPA, no Indian citizen can be granted bail accused of any
offence mentioned in chapter IV or VI of UAPA if the courts deem the accusations to be
prima facie true. This becomes the exception where the courts don’t have the liberty to
consider the regular norms of bail and is restricted to deny bail. So for an UAPA accused to
get bail, as they did in the current case, the court has to examine two basic qualifications-

A. The charges framed should not be exclusively punishable under Chapter IV or/and VI
of UAPA and should be regular offences covered and punishable in the penal code.
The charges should prima facie be unjustified to be framed under UAPA, where the
court must also consider the authenticity of the charges for bail denial.
B. The charges should be deemed to be prima facie false by the court for bail grant.

In presence of these qualifications proviso to section 43D(5) loses its application leading the
court to then consider the general bail norms as we’ve discussed above, and if the accused
passes the general qualifications too in the eyes of the court then the bail is granted with
appropriate conditions levied by the courts.

CONCLUDING REMARKS

Apart from bailable offences where bail is a matter of right, it is also an important facilitating
factor in non-bailable offences, in the absence of which an accused suffers the consequences
of mental & physical trauma and reduced contribution towards the preparation of his/her
trial. Therefore, whenever an accused passes the general bail requirements, mainly, no flight

6
risk, no risk of tampering with evidence, and no risk of influencing witnesses they should
indeed be provided bail. The reaffirmation on the fact that a template denial of bail is also not
warranted and every case requires an individual approach in light of jurisprudential
principles while assessing the matter of bail. The goal is to ensure that the restriction on their
liberty remains minimal and proportional throughout the trial, enough to maintain the
fairness of the trial so that in case of acquittal the person comes out with minimal and
proportional encroachment on their liberty. Likewise, if the person is convicted the person
only receives the punishment in proportion with the magnitude sanctioned by law, no more
and no less.

7
 BIBLIOGRAPHY

1. https://indiankanoon.org/doc/73074664/
2. https://www.livelaw.in/pdf_upload/asif-iqbal-tanha-ajb15062021crla392021105447-1-
395008.pdf
3. https://delhihighcourt.nic.in/judgement.asp
4. https://ccjarmlnlu.wordpress.com/2021/08/18/favouring-unfounded-fear-of-security-
threat-over-personal-liberties-restrictive-bail-prisons-and-the-death-of-stan-swamy/
5. https://www.barandbench.com/news/litigation/delhi-high-court-grants-bail-asif-iqbal-
tanha-devangana-kalita-natasha-narwal-delhi-riots-case
6. https://www.thehindu.com/news/national/student-activists-devangana-kalita-natasha-
narwal-asif-iqbal-tanha-freed-after-court-rejects-delhi-police-stand/
article34837304.ece