Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 46

SUPREME COURT OF INDIA
N.V. Ramana, Surya Kant, Aniruddha Bose, JJ.
Union of India – Appellant
Versus
K.A. Najeeb – Respondent
Criminal Appeal No. 98 of 2021 [Arising out of Special Leave Petition (Crl.) No. 11616 of 2019]
Decided On : 01-02-2021

Advocates Appeared:
For the Petitioner(s): Mr. B. V. Balaram Das, AOR
For the Respondent(s): Mr. Ramesh Babu M. R., AOR

IMPORTANT POINTS
(1) Grant of bail – Courts are expected to appreciate legislative policy against grant of bail but rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and period of incarceration already undergone has exceeded a substantial part of prescribed sentence.
(2) Cancellation of bail – There is a vivid distinction between parameters to be applied while considering a bail application, vis-à-vis those applicable while deciding a petition for its cancellation.
(3) Bail – Presence of statutory restrictions like Section 43D(5) of UAPA per se does not oust ability of Constitutional Courts to grant bail on grounds of violation of Part III of Constitution.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 439 – Constitution of India – Article 21 – Bail – Grant of – Parameters – Whereas at commencement of proceedings, Courts are expected to appreciate legislative policy against grant of bail but rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and period of incarceration already undergone has exceeded a substantial part of prescribed sentence – Such an approach would safeguard against possibility of provisions like Section 43D(5) of UAPA being used as sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. (Para 18)
(B) Criminal Procedure Code, 1973 – Section 439(2) – Bail – Cancellation of – There is a vivid distinction between parameters to be applied while considering a bail application, vis-à-vis those applicable while deciding a petition for its cancellation – At the time of deciding application for bail, it would be necessary to record reasons, albeit without evaluating evidence on merits – Bail once granted by trial Court, could be cancelled by same Court only in case of new circumstances/evidence, failing which, it would be necessary to approach Higher Court exercising appellate jurisdiction. (Para 9)
(C) Unlawful Activities (Prevention) Act, 1967 – Section 43D(5) read with Sections 16, 18, 18B, 19 and 20 – Criminal Procedure Code, 1973 – Section 439 – Indian Penal Code, 1860 – Sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(H), 201, 202, 153A, 212, 307, 149 – Explosive Substances Act, 1908 – Section 3 – Bail – Grant of – High Court has not determined likelihood of respondent being guilty or not, or whether rigours of Section 43D(5) of UAPA are alien to him – High Court instead appears to have exercised its power to grant bail owing to long period of incarceration and unlikelihood of trial being completed anytime in near future – Reasons assigned by High Court are apparently traceable back to Article 21 of Constitution, without addressing statutory embargo created by Section 43D(5) of UAPA – Not only has respondent been in jail for much more than five years, but there are 276 witnesses left to be examined – Given that two-third of such incarceration is already complete, respondent has already paid heavily for his acts of fleeing from justice – Liberty guaranteed by Part III of Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial – Owing to practicalities of real life where to secure an effective trial and to ameliorate risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not – Once it is obvious that a timely trial would not be possible and accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail – Presence of statutory restrictions like Section 43D(5) of UAPA per se does not oust ability of Constitutional Courts to grant bail on grounds of violation of Part III of Constitution – Both restrictions under a Statue as well as powers exercisable under Constitutional Jurisdiction can be well harmonised – Charges levelled against respondent are grave and a serious threat to societal harmony – However, keeping in mind length of period spent by him in custody and unlikelihood of trial being completed anytime soon, High Court appears to have been left with no other option except to grant bail – Attempt has been made to strike balance between appellant’s right to lead evidence of its choice and establish charges beyond any doubt and simultaneously respondent’s rights guaranteed under Part III of Constitution have been well protected – Section 43D(5) of UAPA is comparatively less stringent than Section 37 of NDPS – Unlike NDPS where competent Court needs to be satisfied that prima facie accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA – Court not inclined to interfere with impugned order – Appeal dismissed with directions. (Paras 11, 15, 16, 18, 19, 20 and 21)
Facts of the case:
Present appeal has been preferred by the Union of India through the National Investigation Agency (NIA) against an order dated 23.07.2019 of the High Court of Kerala at Ernakulam, whereby bail was granted to the respondent for an offence under Sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(H), 201, 202, 153A, 212, 307, 149 of the Indian Penal Code, 1860 (“IPC”), Section 3 of the Explosive Substances Act, 1908 and Sections 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).
Findings of Court:
Besides the conditions to be imposed by the trial Court while releasing the respondent, it would serve the best interest of justice and the society at large to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments. In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith.
Result : Appeal dismissed.

Judgement Key Points

The main conclusion of this case is that, although statutory restrictions like Section 43-D(5) of the UAPA generally limit the grant of bail, these provisions do not completely bar the possibility of granting bail by constitutional courts, especially when there is a significant delay in trial and the period of incarceration already suffered exceeds a substantial part of the prescribed sentence. The courts are expected to balance the legislative intent with constitutional rights, particularly the right to a speedy trial and personal liberty, by considering the practical realities of the case. In this particular instance, due to the lengthy incarceration and the unlikelihood of the trial being completed in the near future, the court found it appropriate to enlarge the respondent on bail, while imposing certain conditions to safeguard societal interests and the integrity of the trial process.

ORDER :

Surya Kant, J.

Leave Granted.

2. The present appeal has been preferred by the Union of India through the National Investigation Agency (in short, “NIA”) against an order dated 23.07.2019 of the High Court of Kerala at Ernakulam, whereby bail was granted to the respondent for an offence under Sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(H), 201, 202, 153A, 212, 307, 149 of the Indian Penal Code, 1860 (“IPC”), Section 3 of the Explosive Substances Act, 1908 and Sections 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”).

FACTS

3. The prosecution case in brief is that one Professor TJ Joseph while framing the Malayalam question paper for the second semester B.Com. examination at the Newman College, Thodupuzha, had included a question which was considered objectionable against a particular religion by certain sections of society. The respondent in association with other members of the Popular Front of India (PFI), decided to avenge this purported act of blasphemy. On 04.07.2010 at about 8AM, a group of people with a common object, attacked the victim-professor while he was returning home with his mother and sister after attending Sunday mass at a local Church. Over the course of the attack, members of the PFI forcefully intercepted the victim’s car, restrained him and chopped-off his right palm with choppers, knives, and a small axe. Country-made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the victim. An FIR was consequently lodged against the attackers by the victim-professor’s wife under Sections 143, 147, 148, 120B, 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 was part of a larger conspiracy involving meticulous pre-planning, numerous failed attempts and use of dangerous weapons. Accordingly, several dozen persons including the present respondent were arraigned by the police. It was alleged that the respondent was one of the main conspirators and the provisions contained in Sections 153A, 201, 202, 212 of IPC, along with Section 16, 18, 18-B, 19 and 20 of the UAPA were also thus invoked against him. However, owing to him being untraceable, the respondent was declared an absconder and his trial was split up from the rest of his coconspirators. The co-accused of the respondent were tried and most of them were found guilty by the Special Court, NIA vide order dated 30.04.2015 and were awarded cumulative sentence ranging between two and eight-years’ rigorous imprisonment.

5. The respondent could be arrested on 10.04.2015 only and a charge-sheet was re-filed by the National Investigation Agency against him, pursuant to which the respondent is now facing trial. The respondent approached the Special Court and the High Court for bail as many as six times between 2015 and 2019, seeking leniency on grounds of his limited role in the offence and claiming parity with other co-accused who had been enlarged on bail or acquitted. Save for the impugned order, bail was declined to the respondent, observing that prima facie he had prior knowledge of the offence, had assisted and facilitated the attack, arranged vehicle and SIM cards, himself waited near the place of occurrence, transported the perpetrators, sheltered, and medically assisted them afterwards. The Courts were, therefore, of the view that the bar against grant of bail under Section 43-D (5) of the UAPA was attracted.

6. The respondent again approached the High Court in May, 2019 for the third time, questioning the Special Court’s order denying bail. The High Court through the impugned order, released the respondent on bail noting that the trial was yet to begin though the respondent had been in custody for four years. Placing emphasis on the mandate for an expeditious trial under the National Investigation Agency Act, 2008, the High Court held that