NIA loses UAPA bail appeal: Delhi HC finds special court applied Section 43D(5), did not run a mini-trial
A division bench of Justice Navin Chawla and Justice Arun Bhardwaj dismissed the NIA appeal against the May 2023 bail of Mateen Ahmed Bhat, accused no. 10 in a Jammu and Kashmir terror conspiracy case, holding that an appeal against grant of bail tests only whether the order was illegal, perverse or arbitrary, and that the special court had done the prima facie exercise Section 43D(5) demands.
Mateen Ahmed Bhat, a Shopian resident whom the National Investigation Agency calls an overground worker for Hizbul Mujahideen, stays on bail. A Delhi High Court division bench of Justice Navin Chawla and Justice Arun Bhardwaj on 30 October 2026 dismissed the agency's appeal against the bail order a special NIA court passed in May 2023.
The bench held that an appeal against the grant of bail tests only whether the order was illegal, perverse or arbitrary. The special court, it found, had stayed alive to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 and had asked the right question: whether the material on record made the accusations prima facie true.
The role the charge-sheet pins on Bhat
The appeal, CRL.A. 562/2023, was filed under Section 21(1) of the National Investigation Agency Act, 2008. It challenged the order of 3 May 2023 of the Additional Sessions Judge-03 (Special Judge) (NIA), Patiala House Courts, in RC No. 29/2021/NIA/DLI, titled NIA v. Tariq Ahmed Dar and others.
The case is registered under Sections 120B, 121A, 122 and 123 of the Indian Penal Code and Sections 18, 18A, 18B, 20, 38 and 39 of the UA(P) Act. Bhat was arrested on 13 October 2021 and is accused no. 10 in the charge-sheet filed on 8 April 2022.
Justice Chawla, writing for the bench, split the prosecution case in two: a larger conspiracy to spread terror in Jammu and Kashmir, and the specific role of each accused. The memo of appeal says outfits grouped under the United Jihad Council recruited local youth as hybrid cadres and lone wolf operators through social media after the abrogation of Article 370.
Handlers in Pakistan, the agency says, used secure messaging applications to radicalise recruits and train them online in weapons and explosives. The charge-sheet adds that the two lead accused took care that the other conspirators knew little about each other, so that one arrest would not expose the rest.
On Bhat specifically, the charge-sheet alleges that he was drawn to separatist ideology by one Muzaffar Ahmed Bandey of Madujan village, Shopian, described as an active cadre of a proscribed organisation. Bandey allegedly put him in touch with a Hizbul Mujahideen terrorist of Kulgam, code-named Sabjar, through a Telegram ID called Bhatmateen created on his phone.
From there, the agency says, Bhat worked as an overground worker for Lashkar-e-Toiba and Hizbul Mujahideen, providing logistics, assisting the movement of weapons and recruiting local youth. Audio clips retrieved from his phone were sent to the CFSL for voice matching.
The charge-sheet reproduces six transcripts in Kashmiri and Hindi. They speak of a boy released after 18 months in jail who had arranged a pistol with 15 rounds, was sitting on a large quantity of material and was being hunted again by the police, and who wanted to become active.
The charge-sheet sought his prosecution under Sections 120B and 121A IPC and Sections 18, 20, 38 and 39 of the UA(P) Act. Its own summary of the laboratory analysis recorded that the forensic voice report was still awaited.
What the special court found in May 2023
The trial court noted the restrictions Section 43D(5) places on bail and found that the agency's prime case rested on Bhat's disclosure statement (D-42) and the mobile phones seized from his house on 12 October 2021. The disclosure statement, it said, might be inadmissible without any consequent discovery, and in any case contained nothing incriminating.
There appeared to be no evidence that Bhat attended meetings of a terrorist organisation or acted as an overground worker, and none of him handling arms or attending radical religious classes. The allegations revolved around Muzaffar Ahmad Bandey, who had supposedly radicalised him. Yet Bandey, the court observed, was “neither an accused nor a witness in the case” (para 6).
The calls between the two, the court held, at most showed Bhat referring to a boy who knew about a large quantity of arms. That might show empathy for the boy or knowledge of the weapons, but without any overt act it did not make him part of the alleged conspiracy. Bail followed.
NIA: the special court ran a mini-trial
Amit Tiwari, Special Public Prosecutor, led the agency's challenge. His central complaint was that the trial court had dissected each item of material against Bhat, considered it in isolation and conducted a mini-trial, which it could not do when exercising jurisdiction under Section 43D(5).
He argued that the court could not have ruled on the admissibility or evidentiary value of the disclosure statement at the bail stage. The statement, he said, disclosed Bhat's radicalisation, his Telegram contact with the Hizbul commander Sabjar, and his functioning as an overground worker.
On the finding of no overt act, Tiwari pointed to the forensic scrutiny of Bhat's device, which disclosed call logs with Hizbul Mujahideen and with Bandey. He cited PW-311, who deposed that Bhat gave his personal phone to Bandey to contact entities across the border and kept watch on army and police movements on Bandey's instructions.
A protected witness, PW-X-21, stated that Bhat was to make active a person known to possess weapons and wanted by the police. A CFSL report now confirmed the voice notes. And on the same material, the SPP noted, the trial court had framed charges against Bhat by orders of 30 July and 20 August 2024.
That, the agency said, was a clear contradiction: the same court that found no prima facie case for the purpose of bail had found enough to put Bhat on trial.
Bhat: the charge order cuts the other way
Kartik Venu, for Bhat, said the High Court's jurisdiction in such an appeal was limited to asking whether the trial court had committed a grave error in releasing him. No such case had been made out.
He added that Bhat had challenged the charge orders in CRL.M.C. 323/2026. On 17 January 2026, a single judge of the High Court observed in that petition that Bhat had prima facie shown that the allegations the trial court relied on never referred to him. Framing of charges, Venu argued, was therefore no ground to allow the appeal.
Setting aside bail is not cancelling bail
The bench began with the limited scope of a prosecution appeal against a bail order. The Supreme Court, it said, has emphasised time and again that “setting aside an order granting bail and cancellation of bail are two distinct concepts” (para 14).
The former tests the correctness of the order itself, for illegality, perversity, arbitrariness or reliance on unjustified material. The latter looks at the conduct of the accused after bail and at supervening circumstances.
The bench quoted Y v. State of Rajasthan, (2022) 9 SCC 269, which in turn relied on Neeru Yadav v. State of U.P., (2014) 16 SCC 508. If relevant factors were ignored, or bail rests on irrelevant considerations, the superior court can set the grant aside; that case belongs in a separate realm from a cancellation application.
It then set out the six principles the Supreme Court summarised in Ashok Dhankad v. State NCT of Delhi, 2025 SCC OnLine SC 1690. An appeal against grant of bail is not on the same footing as a cancellation application.
The court hearing such an appeal must not undertake a threadbare analysis of the prosecution evidence. The merits of that evidence are not to be adjudicated at the bail stage.
A bail order must still reflect application of mind to the relevant factors. An appeal may be entertained on grounds of perversity, illegality, inconsistency with law, or failure to consider relevant factors including the gravity of the offence and the impact of the crime.
The conduct of the accused after bail is not a ground in such an appeal; that belongs in a cancellation application. Nor may the appeal be used as a retaliatory measure. The bench noted that Sarju Prasad v. State of U.P., 2026 SCC OnLine SC 334, had recently reiterated these principles.
Trial court stayed within Section 43D(5)
Applying those principles, the bench found that the trial court had remained alive to the considerations Section 43D(5) prescribes. It had rightly carried out the exercise of asking whether the material on record made the accusations against Bhat prima facie true.
That order, the bench held, was
“neither final conclusion on the evidence nor intended to discharge the respondent” (para 17)
The later order framing charges against Bhat was therefore not relevant to the appeal. The agency's contradiction argument fell away with it.
Even so, the bench reproduced the single judge's observation of 17 January 2026 in Bhat's challenge to the charge order. There, Venu had pointed out that the testimony of Tariq Hajam, relied on in the charge order, had been used in paragraphs 54 and 54.1 of that order against co-accused A-3, Bilal Ahmed Mir.
The statement of Tariq Ahmad (PW-256/1), handed over in court and taken on record, did not on a prima facie reading make any reference to Bhat. The division bench recorded that observation without deciding anything about the charge.
The allegations against Bhat are grave, the bench acknowledged, but they must be tested at trial. Given the number of witnesses the prosecution has cited and the number still to be examined, the trial was not likely to conclude anytime soon.
Order
The bench found no merit in the appeal and dismissed CRL.A. 562/2023, leaving the bail order of 3 May 2023 intact. There was no order as to costs.
It directed that no observation on the merits of the prosecution case, whether by the trial court in the bail order or by the High Court in this judgment, should influence the trial court in deciding the case against Bhat. The judgment was reserved on 16 October 2026 and pronounced on 30 October 2026.