UNION OF INDIA versus K. A. NAJEEB on 1 February 2021

1. Leave Granted.

2. The present appeal has been preferred by the Union of Indiathrough the National Investigation Agency (in short, “NIA”) against anorder dated 23.07.2019 of the High Court of Kerala at Ernakulam,whereby bail was granted to the respondent for an offence underSections 143, 147, 148, 120-B, 341, 427, 323, 324, 326, 506(H), 201, 202,153A, 212, 307, 149 of the Indian Penal Code, 1860 (“IPC”), Section 3of the Explosive Substances Act, 1908 and Sections 16, 18, 18-B, 19 and20 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”).

E

F

FACTS

3. The prosecution case in brief is that one Professor TJ Josephwhile framing the Malayalam question paper for the second semesterB.Com. examination at the Newman College, Thodupuzha, had includeda question which was considered objectionable against a particular religionby certain sections of society. The respondent in association with othermembers of the Popular Front of India (PFI), decided to avenge thispurported act of blasphemy. On 04.07.2010 at about 8AM, a group ofpeople with a common object, attacked the victim-professor while he G

H

Awas returning home with his mother and sister after attending Sundaymass at a local Church. Over the course of the attack, members of thePFI forcefully intercepted the victim’s car, restrained him and chopped-off his right palm with choppers, knives, and a small axe. Country-madebombs were also hurled at bystanders to create panic and terror in theirminds and to prevent them from coming to the aid of the victim. An FIRBwas consequently lodged against the attackers by the victim-professor’swife under Sections 143, 147, 148, 120-B, 341, 427, 323, 324, 326, 506(H),307, 149 of IPC; and Section 3 of Explosive Substances Act.

4. It emerged over the course of investigation that the attack waspart of a larger conspiracy involving meticulous pre-planning, numerousCfailed attempts and use of dangerous weapons. Accordingly, severaldozen persons including the present respondent were arraigned by thepolice. It was alleged that the respondent was one of the mainconspirators and the provisions contained in Sections 153A, 201, 202,212 of IPC, along with Section 16, 18, 18-B, 19 and 20 of the UAPADwere also thus invoked against him. However, owing to him beinguntraceable, the respondent was declared an absconder and his trialwas split up from the rest of his co-conspirators. The co-accused of therespondent were tried and most of them were found guilty by the SpecialCourt, NIA vide order dated 30.04.2015 and were awarded cumulativesentence ranging between two and eight-years’ rigorous imprisonment.E

5. The respondent could be arrested on 10.04.2015 only and achargesheet was re-filed by the National Investigation Agency againsthim, pursuant to which the respondent is now facing trial. The respondentapproached the Special Court and the High Court for bail as many as sixtimes between 2015 and 2019, seeking leniency on grounds of his limitedFrole in the offence and claiming parity with other co-accused who hadbeen enlarged on bail or acquitted. Save for the impugned order, bailwas declined to the respondent, observing that prima facie he had priorknowledge of the offence, had assisted and facilitated the attack, arrangedvehicle and SIM cards, himself waited near the place of occurrence,Gtransported the perpetrators, sheltered, and medically assisted themafterwards. The Courts were, therefore, of the view that the bar againstgrant of bail under Section 43-D (5) of the UAPA was attracted.

6. The respondent again approached the High Court in May, 2019for the third time, questioning the Special Court’s order denying bail.HThe High Court through the impugned order, released the respondent on bail noting that the trial was yet to begin though the respondent had beenin custody for four years. Placing emphasis on the mandate for anexpeditious trial under the National Investigation Agency Act, 2008, theHigh Court held that the undertrial-respondent could not be kept in custodyfor too long when the trial was not likely to commence in the near future,for not doing so would cause serious prejudice and suffering to him. Theoperation of the aforementioned bail order was, however, stayed by thisCourt. Resultantly, the respondent has spent nearly five years and fivemonths in judicial custody.

CONTENTIONS

7. Learned Additional Solicitor General, for the appellant, arguedthat the High Court erred in granting bail without adverting to the statutoryrigours of Section 43-D(5) of UAPA. Relying upon judgment in NationalInvestigation Agency v. Zahoor Ahmad Shah Watali[1], it was highlightedthat bail proceedings under the special enactment were distinct and theCourts are duty-bound to refuse bail where the suspect is prima faciebelieved to be guilty. It was further contended that in numerous priorrounds before the Special Court and the High Court, there emergedenough reasons to believe that the respondent was, prima facie, guiltyof the accusations made against him. The fact that the respondent hadabsconded for years was pressed into aid as legitimate apprehension ofhis not returning if set free. As regard to the early conclusion of trial,NIA has filed an additional affidavit suggesting to examine 276 witnessesand at the same time expecting to conduct the trial on a day-to-day basisand complete it within around a year.

8. Learned Senior Counsel appearing for the respondent, on theother hand, highlighted that many of the co-accused had been acquitted,and although a few had been convicted as well, but those convicts hadalso been awarded a sentence of not more than eight years. Given howthe respondent has already suffered incarceration of almost five-and-a-half years without the trial having even started, it would violate hisConstitutional liberty and rights to have him serve most of his sentencewithout any adjudication of guilt by a judicial authority. He urged thatonce the High Court had exercised discretion to grant bail, the sameought not to be interfered with except in rare circumstances. Relyingupon Shaheen Welfare Association v. Union of India[2 ]and Hussain 1 (2019) 5 SCC 1.2 (1996) 2 SCC 616.

A

B

C

D

E

F

G

H

Av. Union of India,[3] it was argued that such protracted incarcerationviolates the respondent’s right to speedy trial and access to justice; inwhich case, Constitutional Courts could exercise their powers to grantbail, regardless of limitations specified under special enactments.

ANALYSISB

9. It must be emphasised at the outset that there is a vivid distinctionbetween the parameters to be applied while considering a bail application,vis-à-vis those applicable while deciding a petition for its cancellation. InPuran v. Rambilas[4], it was re-iterated that at the time of deciding anapplication for bail, it would be necessary to record reasons, albeit withoutCevaluating the evidence on merits. In turn, Puran (supra) citedGurcharan Singh v. State (Delhi Admn.)[5]; wherein this Court observedthat bail once granted by the trial Court, could be cancelled by the sameCourt only in case of new circumstances/evidence, failing which, it wouldbe necessary to approach the Higher Court exercising appellatejurisdiction.D

10. In State of Bihar v. Rajballav Prasad[6], this Court ruled thatdeference must be given to the discretion exercised by Superior Courtsin matters of bail, save for exceptional circumstances. The afore-citeddecision holds as follows:

E“14. We may observe at the outset that we are conscious ofthe limitations which bind us while entertaining a plea againstgrant of bail by the lower court, that too, which is a superiorcourt like High Court. It is expected that once the discretionis exercised by the High Court on relevant considerations andbail is granted, this Court would normally not interfere withFsuch a discretion, unless it is found that the discretion itself isexercised on extraneous considerations and/or the relevantfactors which need to be taken into account while exercisingsuch a discretion are ignored or bypassed....There have to bevery cogent and overwhelming circumstances that areGnecessary to interfere with the discretion in granting the bail.These material considerations are also spelled out in theaforesaid judgments viz. whether the accused would be readily 3 (2017) 5 SCC 702.

4 (2001) 6 SCC 338.

5 (1978) 1 SCC 118.

6 (2017) 2 SCC 178.

H

available for his trial and whether he is likely to abuse thediscretion granted in his favour by tampering with theevidence. …”

(emphasis supplied)

11. It is a fact that the High Court in the instant case has notdetermined the likelihood of the respondent being guilty or not, or whetherrigours of Section 43-D(5) of UAPA are alien to him. The High Courtinstead appears to have exercised its power to grant bail owing to thelong period of incarceration and the unlikelihood of the trial beingcompleted anytime in the near future. The reasons assigned by the HighCourt are apparently traceable back to Article 21 of our Constitution, ofcourse without addressing the statutory embargo created by Section 43-D (5) of UAPA.

12. The High Court’s view draws support from a batch of decisionsof this Court, including in Shaheen Welfare Association (supra),layingdown that gross delay in disposal of such cases would justify the invocationof Article 21 of the Constitution and consequential necessity to releasethe undertrial on bail. It would be useful to quote the following observationsfrom the cited case:

“10. Bearing in mind the nature of the crime and the need toprotect the society and the nation, TADA has prescribed inSection 20(8) stringent provisions for granting bail. Suchstringent provisions can be justified looking to the nature ofthe crime, as was held in Kartar Singh case [(1994) 3 SCC569 : 1994 SCC (Cri) 899] , on the presumption that the trialof the accused will take place without undue delay. No onecan justify gross delay in disposal of cases when undertrialsperforce remain in jail, giving rise to possible situations thatmay justify invocation of Article 21.”

(emphasis supplied)

13. Even in the case of special legislations like the Terrorist andDisruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs andPsychotropic Substances Act, 1985 (“NDPS”) which too have somewhatrigorous conditions for grant of bail, this Court in Paramjit Singh v.State (NCT of Delhi)[7], Babba alias Shankar Raghuman Rohida v.

7 (1999) 9 SCC 252.

A

B

C

D

E

F

G

H

AState of Maharashtra[8]and Umarmia alias Mamumia v. State ofGujarat[9 ]enlarged the accused on bail when they had been in jail for anextended period of time with little possibility of early completion of trial.The constitutionality of harsh conditions for bail in such special enactments,has thus been primarily justified on the touchstone of speedy trials toensure the protection of innocent civilians.B

14. We may also refer to the orders enlarging similarly-situatedaccused under the UAPA passed by this Court in Angela HarishSontakke v. State of Maharashtra[10]. That was also a case underSections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA.This Court in its earnest effort to draw balance between the seriousnessCof the charges with the period of custody suffered and the likely periodwithin which the trial could be expected to be completed took note of thefive years’ incarceration and over 200 witnesses left to be examined,and thus granted bail to the accused notwithstanding Section 43-D(5) ofUAPA. Similarly, in Sagar Tatyaram Gorkhe v. State ofDMaharashtra[11], an accused under the UAPA was enlarged for he hadbeen in jail for four years and there were over 147 witnesses stillunexamined.

15. The facts of the instant case are more egregious than thesetwo above-cited instances. Not only has the respondent been in jail forEmuch more than five years, but there are 276 witnesses left to beexamined. Charges have been framed only on 27.11.2020. Still further,two opportunities were given to the appellant-NIA who has shown noinclination to screen its endless list of witnesses. It also deserves mentionthat of the thirteen co-accused who have been convicted, none havebeen given a sentence of more than eight years’ rigorous imprisonment.FIt can therefore be legitimately expected that if found guilty, therespondent too would receive a sentence within the same ballpark. Giventhat two-third of such incarceration is already complete, it appears thatthe respondent has already paid heavily for his acts of fleeing from justice.

16. This Court has clarified in numerous judgments that the libertyGguaranteed by Part III of the Constitution would cover within its protectiveambit not only due procedure and fairness but also access to justice and 8 (2005) 11 SCC 569.

9 (2017) 2 SCC 731.

10 SLP (Crl.) No. 6888 of 2015, Order dated 04.05.2016.

H11 SLP (Crl.) No. 7947 of 2015, Order dated 03.01.2017.

a speedy trial. In Supreme Court Legal Aid Committee RepresentingUndertrial Prisoners v. Union of India[12], it was held that undertrialscannot indefinitely be detained pending trial. Ideally, no person ought tosuffer adverse consequences of his acts unless the same is establishedbefore a neutral arbiter. However, owing to the practicalities of real lifewhere to secure an effective trial and to ameliorate the risk to society incase a potential criminal is left at large pending trial, Courts are taskedwith deciding whether an individual ought to be released pending trial ornot. Once it is obvious that a timely trial would not be possible and theaccused has suffered incarceration for a significant period of time, Courtswould ordinarily be obligated to enlarge them on bail.

17. As regard to the judgment in NIA v. Zahoor Ahmad ShahWatali (supra), cited by learned ASG, we find that it dealt with an entirelydifferent factual matrix. In that case, the High Court had re-appreciatedthe entire evidence on record to overturn the Special Court’s conclusionof their being a prima facie case of conviction and concomitant rejectionof bail. The High Court had practically conducted a mini-trial anddetermined admissibility of certain evidences, which exceeded the limitedscope of a bail petition. This not only was beyond the statutory mandateof a prima facie assessment under Section 43-D(5), but it was prematureand possibly would have prejudiced the trial itself. It was in thesecircumstances that this Court intervened and cancelled the bail.

18. It is thus clear to us that the presence of statutory restrictionslike Section 43-D (5) of UAPA per-se does not oust the ability ofConstitutional Courts to grant bail on grounds of violation of Part III ofthe Constitution. Indeed, both the restrictions under a Statue as well asthe powers exercisable under Constitutional Jurisdiction can be wellharmonised. Whereas at commencement of proceedings, Courts areexpected to appreciate the legislative policy against grant of bail but therigours of such provisions will melt down where there is no likelihood oftrial being completed within a reasonable time and the period ofincarceration already undergone has exceeded a substantial part of theprescribed sentence. Such an approach would safeguard against thepossibility of provisions like Section 43-D (5) of UAPA being used asthe sole metric for denial of bail or for wholesale breach of constitutionalright to speedy trial.

A

B

C

D

E

F

G

A19. Adverting to the case at hand, we are conscious of the factthat the charges levelled against the respondent are grave and a seriousthreat to societal harmony. Had it been a case at the threshold, we wouldhave outrightly turned down the respondent’s prayer. However, keepingin mind the length of the period spent by him in custody and the unlikelihoodof the trial being completed anytime soon, the High Court appears toBhave been left with no other option except to grant bail. An attempt hasbeen made to strike a balance between the appellant’s right to leadevidence of its choice and establish the charges beyond any doubt andsimultaneously the respondent’s rights guaranteed under Part III of ourConstitution have been well protected.C

A

20. Yet another reason which persuades us to enlarge theRespondent on bail is that Section 43-D(5) of the UAPA is comparativelyless stringent than Section 37 of the NDPS. Unlike the NDPS wherethe competent Court needs to be satisfied that prima facie the accusedis not guilty and that he is unlikely to commit another offence while onDbail; there is no such pre-condition under the UAPA. Instead, Section43-D (5) of UAPA merely provides another possible ground for thecompetent Court to refuse bail, in addition to the well-settled considerationslike gravity of the offence, possibility of tampering with evidence,influencing the witnesses or chance of the accused evading the trial byabsconsion etc.E

CONCLUSION

21. In light of the above discussion, we are not inclined to interferewith the impugned order. However, we feel that besides the conditionsto be imposed by the trial Court while releasing the respondent, it wouldFserve the best interest of justice and the society-at-large to impose someadditional conditions that the respondent shall mark his presence everyweek on Monday at 10 AM at the local police station and inform inwriting that he is not involved in any other new crime. The respondentshall also refrain from participating in any activity which might enragecommunal sentiments. In case the respondent is found to have violatedGany of his bail conditions or attempted to have tampered the evidence,influence witnesses, or hamper the trial in any other way, then the SpecialCourt shall be at liberty to cancel his bail forthwith. The appeal isaccordingly dismissed subject to above- stated directions.

HKalpana K. Tripathy