Overstaying a visa is not illegal entry: Supreme Court refuses to cancel UAPA default bail

Justice Aravind Kumar and Justice Vipul M. Pancholi hold that the Section 43D(7) UAPA bail bar needs an unauthorised entry into India, not a visa overstay, and cannot touch default bail under Section 167(2) CrPC.

The Supreme Court on 27 October 2026 dismissed the Union of India’s appeal against a Madras High Court order that had restored bail to Mohamed Rifas, an accused in a National Investigation Agency conspiracy case who, according to a 2019 FIR, is a Sri Lankan national living in Tamil Nadu on Indian identity papers. A bench of Justice Aravind Kumar and Justice Vipul M. Pancholi held that the bail bar in Section 43D(7) of the Unlawful Activities (Prevention) Act, 1967 has three ingredients which must all be met, and that the third, an unauthorised or illegal entry into India, is not satisfied by a foreigner who came in on a valid visa and overstayed. The bar cannot reach default bail under Section 167(2) of the Code of Criminal Procedure at all, the bench added, because its non-obstante clause overrides only sub-sections (5) and (6) of Section 43D. And the Union had left fifteen months between the chargesheet and its cancellation plea unexplained.

Justice Aravind Kumar, who wrote the judgment, framed the question as a substantial one of law: whether a foreign citizen accused under the UAPA is entitled to bail in the light of Section 43D(7). The answer turned on how the accused got into the country and under what provision he was let out of custody.

A default bail in 2018, a nationality FIR in 2019, a cancellation plea in 2022

Rifas was one of the accused in FIR No. 46 of 2018, registered on 2 April 2018 at the Keelakarai police station in Tamil Nadu for offences under Sections 153A and 120B of the Indian Penal Code, Sections 15, 17, 18, 19 and 20 of the UAPA and Section 25(1)(a) of the Arms Act, 1959. The allegation was a conspiracy to bring disharmony among religious communities and against the government. He was arrested. On 3 July 2018 he applied for regular bail under Section 439 CrPC before the Principal District and Sessions Judge, Ramanathapuram. Two days later, on 5 July 2018, that court granted him default bail under Section 167(2) CrPC because the prosecution had not filed its chargesheet within the statutory period.

On 9 January 2019 the Ministry of Home Affairs, citing the gravity of the offence, directed the NIA to investigate the larger conspiracy. The agency took over the next day and re-registered the case as RC-01/2019/NIA/DLI in New Delhi, under the same provisions. Its version was that Rifas knowingly organised and took part in a conspiracy, meeting at different places in Tamil Nadu to incite co-accused and others to disrupt communal harmony, create enmity between religious groups and cause disaffection against the Government of India by waging an armed struggle to free associates lodged in prison. He was also said to have possessed a sharp-edged weapon collected in preparation for terrorist acts.

Then came the second FIR. On 29 November 2019, FIR No. 188 of 2019 was registered against him under Sections 468 and 471 IPC, Section 14 of the Foreigners Act, 1946, Rules 3(a) and 6(a) of the Passport (Entry into India) Rules, 1950, Section 6(c) of the Passport Act, 1967 and Section 2(1)(b)(I) of the Citizenship Act, 1955. The complainant was a Village Administrative Officer, to whom Rifas had allegedly confessed the previous day that he was a Sri Lankan national holding passport no. M1 103657, had entered India in 2009, had overstayed his visa, had then illegally obtained an Indian voter ID, Aadhaar card and ration card, and had married in 2011 and had four children.

The NIA filed its chargesheet on 23 January 2021 against ten accused including Rifas, and the trial court took cognizance as CC No. 01 of 2021. Only on 29 April 2022 did the Union move Crl. MP No. 213 of 2022 under Section 439(2) CrPC before the Special Court under the NIA Act at Chennai, seeking cancellation of the 2018 bail. Its ground was suppression: Rifas had hidden that he was a Sri Lankan citizen and had stated in paragraph 5 of his bail petition that he was a law-abiding citizen, so as to get around Section 43D(7). On 5 July 2022 the Special Court agreed and cancelled the bail, relying on that provision.

Why the Madras High Court put him back on bail

Rifas appealed as Criminal Appeal No. 1000 of 2022. On 12 December 2023 a Division Bench of the Madras High Court allowed it and set aside the cancellation, on four grounds. Section 43D(7) does not take away the court’s discretion; even if the restriction applies, a non-citizen can still be given bail in extraordinary circumstances. Following Abdul Basit v. Mohd. Abdul Kadir Chaudhary, the trial court had no power to review its own bail order; the Union should have appealed the 5 July 2018 order instead, and the plea that limitation had run out was no answer. Apart from FIR No. 188 of 2019, which itself rested on the alleged confession to the Village Administrative Officer, the Union had no independent material to show that Rifas was Sri Lankan or had entered India illegally. And even assuming he was, he had been on bail since 2018 and his liberty could not be curtailed four years later merely because an FIR had been registered in 2019, especially when the cancellation plea came three years after that FIR with no explanation for the delay.

Suppression, and a court that was never functus officio

Additional Solicitor General Aishwarya Bhati argued for the Union that the Sessions Court had not become functus officio under Section 362 CrPC: the court which granted bail can cancel it on finding new material or circumstances at any time, as held in Bhadresh Bipinbhai Sheth v. State of Gujarat. Abdul Basit, the very decision the High Court relied on, says that where a Sessions Court has admitted an accused to bail the State may either move the Sessions Judge on new circumstances not earlier known to it or approach the High Court under Section 439(2).

The suppression of Sri Lankan nationality, she submitted, was a supervening factor justifying cancellation, because it was an attempt to escape the rigour of Section 43D(7). She relied on Kusha Duruka v. State of Odisha, where an accused had obtained bail from a High Court without disclosing a pending special leave petition for the same relief, and the Court had remarked that a “court is not a laboratory where children come to play”. An accused who suppresses a material fact within his special knowledge cannot profit from it. Default bail, she added, can be cancelled where the chargesheet makes out a strong case for a non-bailable offence, citing State through CBI v. T. Gangi Reddy. The Sri Lankan passport number was sufficient prima facie evidence that Rifas was not an Indian national, and four years on bail was no ground by itself to undo a cancellation the Sessions Court had rightly ordered.

A. Velan, for Rifas, answered that the 2018 bail was statutory, granted because the chargesheet was late, and that the Union had never appealed it. The Union had produced no independent material on nationality. Rifas relied on a voter ID issued by the Election Commission of India, birth certificates issued by the Government of Tamil Nadu, and the family card and Aadhaar cards of himself, his wife and their children. A Madras High Court order of 16 December 2024 in W.P. (MD) No. 19538 of 2021 had allowed him to live with his wife at his residence, and that unchallenged order showed there was no prima facie case that he was a foreigner. Section 43D(7) had to be strictly construed with the burden of prima facie proof on the prosecution, and the Union’s whole case rested on a pending FIR built on an alleged confession to a Village Administrative Officer, which had no evidentiary value under Section 25 of the Evidence Act. The non-obstante clause in Section 43D(7), he argued, was confined to sub-sections (5) and (6) and did not displace default bail as modified by Section 43D(2). Cancellation had to rest on misconduct, breach of conditions or witness intimidation, not on premature findings on a disputed fact such as nationality, as Samarendra Nath Bhattacharjee v. State of W.B. had cautioned. And cancelling bail was not the same as refusing it at the threshold, since it meant reviewing a reasoned judicial determination, the point made in State (Delhi Administration) v. Sanjay Gandhi.

Three ingredients, and the conjunction that binds them

The bench set out Section 43D in full. Sub-section (2) applies Section 167 CrPC to UAPA offences with the investigation period enlarged to 90 days, extendable to 180 on a Public Prosecutor’s report giving the progress of the investigation and specific reasons for continued detention. Default bail under Section 167(2) is therefore undoubtedly available in UAPA investigations, and once granted it operates as a deeming fiction equating the release with one under Chapter XXXIII of the Code, which is what empowers the courts to cancel it.

Sub-section (7) opens with a non-obstante clause overriding sub-sections (5) and (6) and says that no bail shall be granted to a person accused of a UAPA offence if he is not an Indian citizen and has entered the country unauthorisedly or illegally. From that opening the Court drew three conditions that it called the sine qua non for the bar: the person must be accused of a UAPA offence; he must not be an Indian citizen; and he must have entered India unauthorisedly or illegally. Parliament placed the conjunction and between the second and third, which the Court read as requiring both together. Being a foreigner is not enough. The entry itself, at the time it was made, must have been unauthorised or illegal.

That reading produced the holding on which the appeal turned. Where a foreign national enters India under an authorisation or through a legal process such as a valid visa, the later revocation of that authorisation, or the stay becoming illegal, does not retroactively convert a lawful entry into an unauthorised or illegal one. Unless all three conditions are prima facie established by the prosecution, the Court held, the statutory bar cannot be invoked to restrain a court from granting bail to a foreign national accused under the UAPA.

Very exceptional circumstances, with the burden on the accused

The bench then turned to the second half of sub-section (7). Although the words no bail shall be granted appear to shut out discretion once the three conditions are met, the closing words, except in very exceptional circumstances and for reasons to be recorded in writing, open a narrow window. The Court described the threshold as extremely high: the circumstance must be exceptional, that exceptionality is qualified by the word very, and a court minded to use the window must record in writing what justifies it. The burden of showing very exceptional circumstances lies solely on the accused, and what qualifies will depend on the facts of each case; there is no straitjacket formula or pigeonhole. The Court summed up that Section 43D(7) “creates a very high bar to be satisfied by the accused person” once the prosecution has prima facie shown its ingredients, a threshold it traced to national security, the larger public interest and the sovereignty of India.

None of that assisted the Union, which had never got past the threshold question. It had placed nothing on record to show prima facie that Rifas’s entry was unauthorised or illegal. The allegations in FIR No. 188 of 2019 themselves recorded that he had entered India on a valid visa and that his stay became illegal only after it expired, which is why a Foreigners Act prosecution had been launched. The bench declined to say more, since that prosecution is pending.

A village officer is not a police officer

On one issue the Court sided with the Union. The High Court had treated FIR No. 188 of 2019 as no evidence of nationality because it rested on a confession to a Village Administrative Officer, and Rifas had argued that Section 25 of the Evidence Act barred such a confession. Both were wrong. Through a line of decisions including Sivakumar v. State by Inspector of Police, R. Kuppusamy v. State, Baskaran v. State of Tamil Nadu and Kadamanian alias Manikandan v. State, it is settled that a Village Administrative Officer who is not acting under the authority of a police officer is not a police officer for the purposes of Section 25, which now corresponds to Section 23(1) of the Bharatiya Sakshya Adhiniyam, 2023. An extra-judicial confession made to such an officer is not inadmissible, subject to the court being satisfied of its voluntariness, truthfulness and credibility.

The bench was careful about the limits of that finding. At the bail stage a court cannot run a mini trial on the evidentiary value of every fact; the exercise is confined to a prima facie view of what makes grant or cancellation probable or improbable. On that footing the alleged confession “holds some veracity and cannot be brushed aside altogether”, but its probative value is for the trial court at the stage of appreciating evidence.

Cancelling bail is not the same as appealing it

The judgment then collected the law on cancellation. From Gurcharan Singh v. State (Delhi Administration) it took the proposition that where a Sessions Court has granted bail the State may either return to the Sessions Judge on new circumstances not earlier known to it or go to the High Court under Section 439(2). Dolat Ram v. State of Haryana listed the classic grounds: interference with the course of justice, evasion, abuse of the concession, likelihood of absconding, misuse of bail and tampering with evidence or witnesses. Prakash Kadam v. Ram Prasad Vishwanath Gupta added that gravity of the offence, the prima facie case and the standing of the accused also count. Abdul Basit and Neeru Yadav v. State of Uttar Pradesh separated setting aside an unjustified, illegal or perverse bail order, which only a superior court can do, from cancelling bail for misconduct or new adverse facts. The three-judge bench in Deepak Yadav v. State of Uttar Pradesh held that cancellation is not limited to supervening circumstances and gave seven illustrations. State of Karnataka v. Sri Darshan, Yogendra Pal Singh v. Raghvendra Singh and Zeba Khan v. State of U.P. restated that annulling a bail order unsustainable at its inception stands on a different footing from cancelling bail for post-bail conduct.

Drawing these together, the bench held that in an appeal against a grant of bail the court asks whether the order was perverse, passed without application of mind or on irrelevant considerations. In a cancellation application the considerations are entirely different. Bail has already been granted, discretion has already been exercised in favour of a liberty that carries substantial constitutional value, and a court must be cautious before reversing it. Where it does, the decision must rest on a supervening circumstance that would impair a fair trial if ignored: post-bail conduct in breach of conditions, or the discovery of a suppressed material fact that would have stopped the court from granting bail. The inherent power recognised in Deepak Yadav survives, but it must rest on plausible reasoning and be used with caution.

Default bail is a right that sub-section (7) cannot reach

Measured against that framework, the Union’s suppression argument failed for a reason that had nothing to do with whether Rifas had hidden his nationality. He had been granted statutory bail under Section 167(2) because the chargesheet was not filed in time. That bail was his as a matter of right. Section 43D(2) applies Section 167(2) to UAPA cases, and the overriding effect of Section 43D(7) is confined, by its own terms, to sub-sections (5) and (6). The bench said it failed to understand how sub-section (7), even if attracted, could whittle down the mandate of sub-section (2). It does not bar the grant of statutory bail. A fact that would not have stopped the Sessions Court from granting default bail could not be a suppressed material fact justifying its cancellation.

The Union’s fallback on T. Gangi Reddy fared no better. That decision, the Court said, did not sanction a mechanical cancellation of default bail once a chargesheet is filed; it required a special and strong ground that the chargesheet disclosed a non-bailable crime. No such ground had been made out here.

Fifteen months the Union could not account for

The dates did the rest. Bail was granted on 5 July 2018. The chargesheet was filed on 23 January 2021. The cancellation application was moved on 29 April 2022. Even condoning the whole period from 6 July 2018 to the chargesheet, the bench found nothing on record to explain the delay from 24 January 2021 to 28 April 2022. If the Union believed the chargesheet disclosed a non-bailable offence demanding cancellation, what prompted it to wait roughly a year remained unanswered. In IA No. 203232 of 2026 the Union had said that from 29 November 2019 to 25 January 2022 it was occupied in verifying Rifas’s nationality from official immigration records so as to invoke Section 43D(7). The bench was not satisfied with that explanation.

Order

The Court granted leave and allowed IA Nos. 78440 of 2025 and 203232 of 2026. On the merits it held the appeal devoid of merit and dismissed it. The Madras High Court’s order of 12 December 2023 in Criminal Appeal No. 1000 of 2022, which had set aside the Special Court’s cancellation of 5 July 2022 and restored the default bail of 5 July 2018, stands affirmed. Pending applications, if any, are consigned to record. The Foreigners Act prosecution in FIR No. 188 of 2019, and with it the question of Rifas’s nationality, remains pending.