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SUPREME COURT OF INDIA
(From the High Court of Calcutta)
(Ajay Rastogi, Abhay S. Oka, JJ.)
Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya – Appellant
Versus
National Investigation Agency – Respondent
Criminal Appeal No(s). 1525 of 2021 (Arising out of SLP(Criminal) No(s). 6858 of 2021)
Decided On : 01-12-2021
(A) Constitution of India – Article 21 – Right to personal liberty – Liberty guaranteed in 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 is imperative and undertrials cannot indefinitely be detained pending trial – 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 him on bail – Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of Constitution of India – While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long – At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in administration of justice. (Paras 12 and 13)
(B) Unlawful Activities(Prevention) Act, 1967 – Section 43D(5) – National Investigation Agency Act, 2008 – Section 19 – Post-arrest bail – Refusal – NIA case registered for offences under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of Arms Act 1959, Section 5 of Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of Unlawful Activities(Prevention) Act, 1967 – Charges against accused appellant are serious but the charges will have to be balanced with certain other factors like period of incarceration which appellant has undergone and likelihood period within which trial can be expected to be finally concluded – That apart, appellant is 74 years of age – Appellant is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner – Trial of cases under NIA Act has to be held on day to day basis – Appellant-accused has made out a case for grant of post-arrest bail pending trial – Judgment and order of High Court set aside and bail granted to appellant – Trial Court will be at liberty to consider and impose appropriate conditions subject to which the appellant accused will be released on bail so as to ensure that the appellant accused is available for trial in terms of the present order. (Paras 8, 11, 15, 16, 20 and 21)
Facts of the case:
Instant appeal has been filed on behalf of accused no. 6 (Ashim @ Asim Kumar Haranath Bhattacharya) out of the total number of 14 accused persons seeking post arrest bail which came to be rejected by Trial Court by Order dated 25th February, 2020 and also by the High Court by Order dated 15th March, 2021.
Findings of Court:
State of West Bengal shall take up the issue and designate more dedicated courts of Sessions as Special Courts for trial of offences specified in the schedule appended to the Act 2008. At the same time, Central Government may also, in consultation with the Chief Justice of the High Court, Calcutta may exercise its power and take up the issue at the earliest so that such trials which are pending under the Act 2008 may go ahead speedily and the mandate, as intended by Legislature in its wisdom, reflected from Section 19 of the Act, is being complied with in its letter and spirit.
Result : Appeal allowed.
JUDGMENT :
Rastogi, J.
1. Leave granted.
2. We have heard learned counsel for the parties.
3. The instant appeal has been filed on behalf of accused no. 6(Ashim @ Asim Kumar Haranath Bhattacharya) out of the total number of 14 accused persons seeking post arrest bail which came to be rejected by the learned trial Court by Order dated 25th February, 2020 and also by the High Court by Order dated 15th March, 2021.
4. The FIR No. 138/2012 dated 1st March, 2012 was initially lodged under Sections 120B, 121, 121A, 122 of the IPC, Section 25(1A) of the Arms Act, 1959 and Section 5 of the Explosive Substances Act, 1908 against five accused persons by a defacto complainant who is an Inspector, Special Task Force. Later, the National Investigation Agency took over the investigation. The said case was reregistered as RC No. 01/2012/NIA/DLI at PS NIA Headquarters, New Delhi for offences under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of the Unlawful Activities(Prevention) Act, 1967(hereinafter being referred to as “UAP Act”) on 12th April, 2012.
5. After investigation, the charge sheet was initially filed against A-1 to A-5 on 23rd August, 2012 and thereafter the first supplementary charge sheet was filed on 27th December, 2012 against A-6 to A-9 in which the appellant was named as A6 and the second supplementary charge sheet was filed on 3rd July, 2017 against another 5 accused persons. The said accused persons are presently absconding. The charges later came to be framed on 20th June, 2019 for offences under Sections 121, 121A, 122, 120B IPC and under Sections 25(1)(a), 25(1A), 25(1-AA) of Arms Act, 1959 and under Sections 18 and 20 of the UAP Act. At this stage, PW 1 who is the defacto complainant, his cross-examination has been going on for quite a long time and still it has not been completed.
6. The appellant was arrested on 6th July, 2012 on the basis of a production warrant sent to Nagpur Central Jail, Maharashtra. The appellant was in jail earlier in connection with another case(FIR No. 28/2007 dated 11th May, 2007)in which he was acquitted by the competent Court of jurisdiction by a judgment dated 15th February, 2014.
7. It has come on record that there are 298 prosecution witnesses in the calendar of witnesses as referred to in the charge sheet but it has been stated in the counter affidavit filed by the respondent that the prosecution in all likelihood may examine only 100 to 105 prosecution witnesses.
8. The charges against the accused appellant are undoubtedly serious but the charges will have to be balanced with certain other factors like the period of incarceration which the appellant has undergone and the likelihood period within which the trial can be expected to be finally concluded. That apart, the appellant is 74 years of age.
9. Learned counsel for the respondent vehemently opposed the appeal filed by the accused appellant seeking post arrest bail and submits that the delay is in no manner be attributable to the prosecution and this Court may direct the trial Court to take up the case on day-to-day basis and conclude the trial at the earliest.
10. That the requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008(hereinafter being referred to as “Act 2008”) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008 but the ground realities are totally different as in the instant case, after the charge-sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge-sheet on 20th June, 2019.
11. We have to balance the nature of c
(1) Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of Constitution of India.(2) Trial of cases under NIA Act has to be held on day to day basis.
The judgment establishes that prolonged pre-trial detention can infringe on the constitutional right to a speedy trial, justifying bail even under stringent laws.
Prolonged detention without trial infringes the right to life and liberty, allowing for bail despite statutory restrictions under UAPA.
The right to a speedy trial is fundamental, and prolonged detention without trial infringes upon this right, warranting bail.
The right to a speedy trial is fundamental; prolonged detention without trial violates the accused's rights, warranting bail.
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