“Watali Plus” – Delhi High Court Re-affirms the Elevated Bail Threshold post-Charge under UAPA and Rejects House-Arrest as a Surrogate Remedy

1. Introduction

The Division Bench of the Delhi High Court in Shabir Ahmed Shah v. National Investigation Agency (2025 DHC 4966-DB) examined a challenge to the Trial Court’s rejection of bail under the Unlawful Activities (Prevention) Act, 1967 (“UA(P)A”). The appellant, a senior separatist leader and Chairman of the Jammu & Kashmir Democratic Freedom Party (JKDFP), has been incarcerated since 2019 in an NIA case alleging a wide-ranging conspiracy to fund and execute secessionist and terrorist activities in Jammu & Kashmir.

The Court not only dismissed the bail appeal but also declined a novel request for house-arrest, thereby laying down a reinforced standard—dubbed here as “Watali Plus”—for post-charge bail consideration under s.43D(5) UA(P)A.

2. Summary of the Judgment

Bail Refused: The Court held that once charges have been framed (16.03.2022) and prima facie accusations appear true, s.43D(5) imposes a high barrier which the appellant failed to cross.
No Mini-Trial on Evidence: At the bail stage, courts should not test the admissibility or credibility of prosecution material (e.g., absence of 65B certificate, “old” videos, hearsay allegations). These matters belong to trial.
Concurrent FIRs Irrelevant: The appellant’s incarceration in 24 other FIRs of similar nature illustrated a pattern of conduct and negated any presumption that he would desist from further illegal activity if released.
House-Arrest Rejected: The Bench held that in serious UA(P)A prosecutions, substituting custody with house-arrest—especially when protected witnesses remain to be examined—would jeopardise evidence and witness safety.
Impact on Future Cases: Reinforces NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, clarifies that the “degree of satisfaction” post-charge is even higher (“Watali Plus”) and that house-arrest is not an intermediate entitlement.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 – Core precedent for the “prima facie true” test under s.43D(5). The Court extends Watali by stressing that once charges are framed the threshold rises further.
K.A. Najeeb (2021) 3 SCC 713 – Relied upon by appellant to argue prolonged incarceration; Court distinguished it on (i) delay attributable to co-accused and (ii) gravity / post-charge status.
Vernon (2023) 15 SCC 56 & other Bombay/Delhi High Court decisions – Cited for procedural infirmities (missing 65B certificates). Court ruled that authenticity/admissibility is irrelevant at bail stage.
House-arrest jurisprudence – Sparse; Court implicitly differentiates from Supreme Court’s dicta in Gautam Navlakha (2021) regarding custodial alternatives, emphasising UA(P)A gravity and pending testimony of protected witnesses.

3.2 Court’s Legal Reasoning

Statutory Embargo: s.43D(5) demands denial of bail if on “a perusal of the case diary or charge-sheet” the Court sees reasonable grounds for believing the accusation to be prima facie true.
Post-Charge Elevation: With charges already framed, the material has crossed a preliminary judicial filter. Therefore, the “limited” bail scrutiny is even narrower – termed here as “Watali Plus”.
Holistic Conspiracy: A conspiracy can seldom be proved by direct evidence; circumstantial and “tacit understanding” suffice (citing Kehar Singh 1988). Hence CDRs, emails, loose-sheets, and protected-witness statements are adequate at this stage.
No Admissibility Inquiry: Challenges based on s.65B certificates, source of videos or hearsay are matters of trial; bail court only verifies existence, not reliability.
Risk Assessment: Multiple pending FIRs, leadership of an association now declared unlawful, and potential to influence witnesses undermine any assurance of non-recurrence or non-tampering.
Proportionality: Although appellant is 74 and alleges 36 years of cumulative incarceration, the immediacy and seriousness of charges outweigh humanitarian grounds.

3.3 Impact of the Decision

The judgment tightens the jurisprudence on UA(P)A bail in four ways:

Watali Plus Doctrine: Confirms that the bail threshold is even higher once charges are framed, discouraging interim bail petitions that seek to re-argue the charge order indirectly.
Evidentiary Gatekeeping Deferred: Bail courts need not entertain 65B or hearsay challenges; these remain trial issues. This will likely expedite bail hearings but simultaneously raise the bar for defence at the interim stage.
House-Arrest Perimeter: Establishes that house-arrest is not an automatic or even viable substitute in high-risk UA(P)A matters, thereby guiding future applications that rely on age, health, or pandemic precedents.
Pattern-of-Conduct Consideration: Shows that numerous past FIRs, even without convictions, can be a decisive factor in bail refusal as they imply systemic, continuing illegality.

4. Complex Concepts Simplified

UA(P)A s.43D(5): A special provision that reverses the usual bail presumption; an accused must show the accusations are not prima facie true.
Prima Facie True Standard: Courts ask, “If this material is accepted at face value, does it point to guilt?” No cross-examination or credibility check is done.
Section 65B Certificate (Indian Evidence Act): A technical certificate needed to admit electronic records (videos, emails). Lack of certificate may bar its use at trial but is ignored at bail stage.
House-Arrest: A custodial alternative where the accused stays at home under restrictions. Indian law recognises it (see Gautam Navlakha) but treats it as exceptional and fact-dependent.
Conspiracy (s.120B IPC): Agreement between two or more persons to commit an illegal act. Proof can be circumstantial; direct evidence is rare.

5. Conclusion

Shabir Ahmed Shah v. NIA crystallises an important refinement in national-security jurisprudence. By refusing both bail and house-arrest, the Delhi High Court:

Elevates the “Watali” threshold once charges are framed (“Watali Plus”).
Clarifies that bail courts will not adjudicate on the technical admissibility of prosecution material.
Signals that the gravity of UA(P)A offences eclipses even prolonged pre-trial detention arguments where the prosecution shows ongoing risk.
Sets a persuasive precedent that house-arrest is unsuitable where protected witnesses remain to testify and the accused holds apparent influence.

The ruling therefore serves as a guiding template for future UA(P)A bail applications, especially at the post-charge stage, and underscores the judiciary’s deference to legislative intent in terrorism-related prosecutions.