Since the act of protesting can’t be conflated with the act of terror, the three accused who are primarily charged for being present at the site of the protests, can’t be subjected to the stringent provisions of the UAPA.
Throughout the proceedings, the state heavily relied upon the Supreme Court’s judgment in the NIA v Zahoor Ahmad Shah Watali to argue that courts can’t apply regular bail provision under the Criminal Procedure Code in UAPA cases. As per the state, the bail applications of Pinjra Tod protesters should be dealt with under the stringent section 43D of UAPA, which provides additional restrictions on bail.
In the Watali judgment, the apex court had ruled that while adjudicating bail under section 43D of UAPA, the courts need not go into the admissibility of the evidence, and must base their reasoning on the evidence produced by the police in their report.
This has set a significant precedent for the high courts and trial courts to follow while adjudicating bail applications filed by UAPA accused. The courts have to follow the following two steps:
Whether the alleged act of the accused would fit into the “essential character of terrorism” under Section 15 of the UAPA, based on the evidence produced by the prosecution.
If not, the bail application must be dealt with as per regular bail provision under the Criminal Procedure Code instead of Section 43D of the UAPA.