1. Appeal against rejection of regular bail in a murder case linked to a larger conspiracy under the UAPA. (Para 1 )
Back
Next 
2026 Supreme(Ker) 1288
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, MURALEE KRISHNA S., JJ.
Abdul Kader, S/o. Muhammed - Appellant
Versus
Union of India, Rep. by Superintendent of Police, National Investigation Agency, Kochi - Respondent
Crl.A. No. 1749 of 2025
Decided On : 31-08-2026
Important Points
Bail under Section 43-D(5) of the UA(P) Act may be granted for prolonged incarceration under Article 21 only if the period spent in custody exceeds a substantial part of the prescribed sentence; this does not apply where the potential sentence is life imprisonment or death.
Subject
Criminal Law - Bail / Terrorist Activities
Act Referred
CRIMINAL PROCEDURE CODE: S.437, S.439, S.50
NATIONAL INVESTIGATION AGENCY ACT: S.21, S.8
INDIAN PENAL CODE: S.109, S.115, S.118, S.119, S.120(b), S.121(a), S.122, S.143, S.144, S.147, S.148, S.149, S.153(a), S.201, S.202, S.212, S.302, S.307, S.323, S.324, S.326, S.34, S.341, S.427, S.449, S.506 Part II
RELIGIOUS INSTITUTIONS PREVENTION OF MISUSE ACT: S.3(a)(b)(d), S.7
UNLAWFUL ACTIVITIES PREVENTION ACT: S.13, S.15, S.18, S.2(o), S.20, S.22(c), S.23, S.38, S.39, S.43(b)(1)
ARMS ACT: S.25(1)(a)
CONSTITUTION OF INDIA: Art.14, Art.21, Art.22(1)
PREVENTION OF MONEY LAUNDERING ACT: S.19, S.44(1)(b), S.45, S.62
BHARATIYA NAGARIK SURAKSHA SANHITA: S.193, S.438, S.47, S.482
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT: S.20(8), S.3, S.4, S.5
BHARATIYA NYAYA SANHITA: S.191(2), S.61(2)
EXPLOSIVE SUBSTANCES ACT: S.3
NATIONAL INVESTIGATION AGENCY ACT: S.21, S.8
INDIAN PENAL CODE: S.109, S.115, S.118, S.119, S.120(b), S.121(a), S.122, S.143, S.144, S.147, S.148, S.149, S.153(a), S.201, S.202, S.212, S.302, S.307, S.323, S.324, S.326, S.34, S.341, S.427, S.449, S.506 Part II
RELIGIOUS INSTITUTIONS PREVENTION OF MISUSE ACT: S.3(a)(b)(d), S.7
UNLAWFUL ACTIVITIES PREVENTION ACT: S.13, S.15, S.18, S.2(o), S.20, S.22(c), S.23, S.38, S.39, S.43(b)(1)
ARMS ACT: S.25(1)(a)
CONSTITUTION OF INDIA: Art.14, Art.21, Art.22(1)
PREVENTION OF MONEY LAUNDERING ACT: S.19, S.44(1)(b), S.45, S.62
BHARATIYA NAGARIK SURAKSHA SANHITA: S.193, S.438, S.47, S.482
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT: S.20(8), S.3, S.4, S.5
BHARATIYA NYAYA SANHITA: S.191(2), S.61(2)
EXPLOSIVE SUBSTANCES ACT: S.3
Headnote
(A) Unlawful Activities (Prevention) Act, 1967 - Section 43-D(5) - Constitution of India - Articles 21 and 22(1) - Indian Penal Code - Section 302 - Bail - Prolonged incarceration and delay in trial - The rigours of Section 43-D(5) of the UA(P) Act "melt down" where there is no likelihood of trial being completed within a reasonable time and the period of incarceration has exceeded a substantial part of the prescribed sentence (Paras 84, 134). Where the prescribed punishment is death or imprisonment for life, a period of 4 years and 4 months does not constitute a substantial part of the sentence (Para 155).
(B) Constitution of India - Article 22(1) - Grounds of arrest - The requirement to furnish written grounds of arrest as mandated by the Apex Court applies "henceforth" from the date of judgment and does not apply retrospectively to arrests made prior to such pronouncement (Paras 31, 42).
(C) Bail - Principle of Parity - Parity in granting bail must focus upon the role of the accused and their position in relation to the incident and the victims (Paras 61, 78). It cannot be claimed as a matter of right if the role of the applicant is more active or severe than that of the co-accused already released (Paras 81, 82).
Facts of the case:
Appellants, accused of conspiracy and involvement in a terrorist act resulting in murder, challenged the dismissal of their bail application. They argued illegal arrest due to lack of written grounds, parity with co-accused, and prolonged incarceration of over four years.
Findings of Court:
The court found that the appellants played active roles in the conspiracy and execution of the crime, supported by CCTV and DNA evidence. The arrest was valid as the written grounds requirement was prospective. Prolonged incarceration did not justify bail given the severity of the potential sentence.
Issues: Whether non-communication of grounds of arrest in writing vitiates the arrest; whether parity applies based on the role of co-accused; and whether prolonged incarceration overrides the statutory bar of Section 43-D(5) of the UA(P) Act.
Ratio Decidendi: The court held that the statutory embargo of Section 43-D(5) of the UA(P) Act is subordinate to Article 21, but the "melting down" of rigours occurs only when incarceration exceeds a substantial part of the prescribed sentence. In cases of life imprisonment or death, a few years of custody is insufficient to override the prima facie truth of the accusations.
Result: Criminal appeal fails and the same is accordingly dismissed.
(B) Constitution of India - Article 22(1) - Grounds of arrest - The requirement to furnish written grounds of arrest as mandated by the Apex Court applies "henceforth" from the date of judgment and does not apply retrospectively to arrests made prior to such pronouncement (Paras 31, 42).
(C) Bail - Principle of Parity - Parity in granting bail must focus upon the role of the accused and their position in relation to the incident and the victims (Paras 61, 78). It cannot be claimed as a matter of right if the role of the applicant is more active or severe than that of the co-accused already released (Paras 81, 82).
Facts of the case:
Appellants, accused of conspiracy and involvement in a terrorist act resulting in murder, challenged the dismissal of their bail application. They argued illegal arrest due to lack of written grounds, parity with co-accused, and prolonged incarceration of over four years.
Findings of Court:
The court found that the appellants played active roles in the conspiracy and execution of the crime, supported by CCTV and DNA evidence. The arrest was valid as the written grounds requirement was prospective. Prolonged incarceration did not justify bail given the severity of the potential sentence.
Issues: Whether non-communication of grounds of arrest in writing vitiates the arrest; whether parity applies based on the role of co-accused; and whether prolonged incarceration overrides the statutory bar of Section 43-D(5) of the UA(P) Act.
Ratio Decidendi: The court held that the statutory embargo of Section 43-D(5) of the UA(P) Act is subordinate to Article 21, but the "melting down" of rigours occurs only when incarceration exceeds a substantial part of the prescribed sentence. In cases of life imprisonment or death, a few years of custody is insufficient to override the prima facie truth of the accusations.
Result: Criminal appeal fails and the same is accordingly dismissed.
Legal Category Hierarchy
- crime and sentencing
-
practice and procedure
- bail
- arrest and detention
- evidence
Advocates Appeared:
For the Appellant : Shri. E.A. Haris, Sri. P.P. Harris, Sri. Renjith B. Marar.
For the Respondent: Shri. Sreenath Sasidharan, Shri. Sasthamangalam S. Ajithkumar (SR.), Special Prosecutor, NIA.
For the Appellant : Shri. E.A. Haris, Sri. P.P. Harris, Sri. Renjith B. Marar.
For the Respondent: Shri. Sreenath Sasidharan, Shri. Sasthamangalam S. Ajithkumar (SR.), Special Prosecutor, NIA.
Table of Contents
2. Appellants argued violation of Article 22(1) due to lack of written grounds of arrest and long incarceration, while NIA opposed citing prima facie case. (Para 17 , 18 )
3. Prima facie materials show active role of accused in conspiracy, arms training, and evidence tampering, making Section 43-D(5) applicable. (Para 74 , 143 )
4. Constitutional courts can grant bail despite Section 43-D(5) UAPA when trial delay violates Article 21, but incarceration of 4 years for life-sentence offences does not meet that threshold. (Para 131 , 152 )
5. Criminal appeal dismissed; bail application of the 19th and 20th accused rejected. (Para 157 )
6. Is the requirement to inform grounds of arrest in writing under Article 22(1) mandatory and retrospective?
The requirement to furnish written grounds of arrest, as held in Pankaj Bansal, applies prospectively from 03.10.2023. Arrests made before that date are valid if grounds were orally communicated. (Para 42 )
7. Does the proviso to Section 43-D(5) of the UAPA create an irrebuttable bar against granting bail when a prima facie case exists?
No. The proviso is a ground for refusal, not an absolute bar. Constitutional courts can grant bail on grounds of violation of Part III of the Constitution, particularly Article 21. (Para 84 , 118 )
8. Can prolonged incarceration alone justify bail under the UAPA, irrespective of the statutory bar?
Not automatically. The court must consider the period of incarceration relative to the prescribed sentence. For life-sentence offences, a 4-year period may not exceed a substantial part of the sentence to override the bar. (Para 135 , 150 , 155 )
9. Is parity in bail decisions determined solely by the similarity of charges against co-accused?
No. Parity focuses on the role of the accused. Different roles (e.g., assailant vs. defence team) and stronger prima facie evidence can justify differential treatment in bail decisions. (Para 61 , 62 , 78 , 81 )
JUDGMENT :
Anil K. Narendran, J.
INDEX
| Sl.No. | Heading |
| A | Factual Matrix |
| B | Arguments on behalf of the appellants –19th and 20th accused |
| C | Arguments on behalf of the respondents |
| D | No written grounds of arrest |
| E | Proviso to Section 43-D(5) of the UA(P) Act– prima facie materials |
| F | Claim for parity in bail |
| G | Bail – long incarceration and inordinatedelay in completion of the trial |
The appellants - Abdul Kader and Firoz – are the 19th and 20th accused in S.C.No.2 of 2023 on the file of the Special Court for the Trial of NIA Cases, Ernakulam, and the petitioners in Crl.M.P.No.381 of 2025, a bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.PC). The appellants have filed this criminal appeal, invoking the provisions under Section 21 of the National Investigation Agency Act, 2008 (NIA Act), to set aside the order dated 09.09.2025 of the Special Court in Crl.M.P.No.381 of 2025 in S.C.No.2 of 2023 (Annexure A10), and to grant them regular bail. The 1st appellant-19th accused was arrested on 24.04.2022, and the 2nd appellant-20th accused was arrested on 26.04.2022, in crime No.318 of 2022 of Palakkad Town South Police Station. After the National Investigation Agency took over the investigation of the said case as a connected offence, the 19th and 20th accused were produced before the Special Court on production warrants, and the National Investigation Agency recorded their formal arrest on 10.02.2023.
2. Factual Matrix:- Crime No.318 of 2022 of Palakkad Town South Police Station was registered on the allegation that Popular Front of India (PFI) leaders and members conspired together with the intention to create terror and communal divide in the society, conducted intense recce of several Hindu leaders of that locality, whom they had shortlisted using their ‘Reporter Wing’ and subsequently selected and brutally murdered one Sreenivasan, who was available, on 16.04.2022, at Palakkad. The Kerala Police filed a charge sheet in that case against 44 persons for offences under Sections 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 read with Section 149 of the Indian Penal Code, 1860 (IPC) and Section 3(a)(b)(d) read with Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988.
3. It is alleged that the PFI, a society registered under the Societies Registration Act, 1860, was formed in the year 2006, merging the three radical organisations with extremist ideologies, namely, National Democratic Front (NDF) from Kerala, Manitha Neethi Pasarai (MNP) from Tamil Nadu and Karnataka Forum for Dignity (KFD) from Karnataka. The founder leaders of PFI were former cadres and leaders of the Students Islamic Movement of India (SIMI), an organisation proscribed by the Government of India in 2001. PFI has the strongest presence in Kerala, where it has been repeatedly involved in cases of murder, rioting, intimidation, and having links with terrorist organisations.
4. PFI has frontal organisations like Rehab India Foundation (RIF), Campus Front of India (CFI), All India Imams Council (AIIC), National Confederation of Human Rights Organisation (NCHRO), National Women’s Front (NWF), Junior Front, Empower India Foundation and Rehab Foundation, in addition to their political wing, Social Democratic Party of India (SDPI). On 28.09.2022, the Government of India declared the Popular Front of India and its affiliates/frontal organisations as an Unlawful Association, as per the provisions of the Unlawful Activities (Prevention) Act, 1967, for brevity ‘the UA (P) Act’.
5. The Central Government received credible information that the office bearers, members and cadres of PFI and its affiliates in Kerala have conspired to instigate communal violence and radicalise its cadres to commit terrorist acts in the State of Kerala and various other parts of the country. PFI members and office bearers based in Kerala having earlier association with the proscribed terrorist organisation, SIMI, maintain operational nexus with other
