Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Bom) 198

HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE & MANISH PITALE, JJ.
The National Investigation Agency, Ministry of Home Affairs, Government of India, Cumballa Hill Telephone Exchange, Mumbai – Appellant
Versus
Areeb Ejaz Majeed – Respondents
Criminal Appeal No. 389 of 2020
Decided On : 23-02-2021

Advocates Appeared:
For the Appellant :Anil C. Singh, Additional Solicitor General with Sandesh Patil, Aditya Thakkar, D.P. Singh i/b Vishal Goutam, Advocates
For the Respondent:Areeb Ejaz Majeed, Advocate

The right to fair and speedy trial is recognized under Article 21 of the Constitution of India. The High Court's decision reaffirms the principle that undertrials cannot be allowed to languish for years in jail while trials proceed at a slow pace.

Headnote:
BAIL - UAPA - [Sections 16, 18, 20 of the UAPA] - The NIA Court granted bail to the respondent based on the slow pace of the trial and the failure of the prosecution to prove a prima facie case. The NIA Court's decision was challenged, and the High Court set aside the findings on the merits but upheld the bail based on the respondent's prolonged incarceration and the likelihood of trial delay. The High Court imposed stringent conditions for the respondent's release.
Fact of the Case:

The respondent was charged with offenses under Section 125 of the IPC and Sections 16, 18, and 20 of the UAPA. The NIA Court granted bail to the respondent based on the slow pace of the trial and the failure of the prosecution to prove a prima facie case. The NIA challenged the decision, arguing that the findings were erroneous and that the respondent's release would prejudice the trial and pose a risk to the witnesses.
Finding of the Court:

The High Court set aside the NIA Court's findings on the merits, stating that the NIA Court erred in categorizing the respondent's bail application as a change in circumstances and revisiting the earlier findings. However, the High Court upheld the bail based on the respondent's prolonged incarceration and the likelihood of trial delay. The High Court imposed stringent conditions for the respondent's release.
Issues: The issues included the NIA Court's approach in granting bail based on the slow pace of the trial and the failure of the prosecution to prove a prima facie case, as well as the respondent's prolonged incarceration and the likelihood of trial delay.
Ratio Decidendi: The High Court held that the NIA Court erred in categorizing the respondent's bail application as a change in circumstances and revisiting the earlier findings. However, the High Court upheld the bail based on the respondent's prolonged incarceration and the likelihood of trial delay. The High Court imposed stringent conditions for the respondent's release.
Final Decision: The High Court set aside the NIA Court's findings on the merits, upheld the bail based on the respondent's prolonged incarceration and the likelihood of trial delay, and imposed stringent conditions for the respondent's release.

Judgement Key Points

Based on the provided legal document, here are the key points extracted with corresponding references:

Case Details: The case is The National Investigation Agency vs. Areeb Ejaz Majeed, Criminal Appeal No. 389 of 2020, decided by the High Court of Judicature at Bombay on 23-02-2021. (!)
Charges: The respondent was charged under Section 125 of the Indian Penal Code (IPC) and Sections 16, 18, and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). (!)
Facts of the Case: The respondent allegedly traveled to Iraq and Syria with absconding co-accused persons ostensibly for pilgrimage but instead participated in jihadi activities with the Islamic State for Iraq and Levant (ISIL). He was arrested on 29/11/2014 and remained in custody for over six years. (!) (!)
Procedural History: The respondent had filed three bail applications on merits (plus one for default bail). The first two were rejected on merits by the NIA Court and subsequently by the High Court. The third application was restored by the High Court for fresh consideration, which led to the impugned order granting bail on 17/03/2020. (!) (!)
NIA Court's Reasoning for Bail: The NIA Court granted bail based on two grounds: (1) The slow pace of the trial and the likelihood of a long duration for examining remaining witnesses; and (2) The prosecution had not succeeded in proving a prima facie case after examining 49 witnesses, despite 107 remaining. (!) (!)
High Court's Finding on Merits: The High Court set aside the NIA Court's findings on the merits. It held that the NIA Court erred in treating the examination of prosecution witnesses as a "change in circumstances" to revisit earlier findings where bail had already been rejected twice. The High Court noted that without referencing the reasoning in earlier orders, the NIA Court could not depart from previous findings. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Right to Speedy Trial: The High Court reaffirmed that the right to a fair and speedy trial is recognized under Article 21 of the Constitution of India and that undertrials cannot be allowed to languish in jail for years. (!) (!)
Application of Shaheen Welfare Association Judgment: The High Court upheld the bail based on the respondent's prolonged incarceration (over six years) and the likelihood of trial delay, applying the principles from Shaheen Welfare Association v. Union of India. The respondent was categorized under category (b) of undertrials in that judgment. (!) (!) (!) (!) (!) (!) (!)
Application of K.A. Najeeb Judgment: The High Court relied on Union of India v. K.A. Najeeb, noting that the rigours of Section 43D(5) of the UAPA "melt down" where there is no likelihood of the trial being completed within a reasonable time and the period of incarceration exceeds a substantial part of the prescribed sentence. (!) (!) (!) (!) (!)
Conditions Imposed: While upholding the bail order on the grounds of delay and incarceration, the High Court imposed stringent conditions, including:
- Staying with family and submitting a list of blood relatives.
- Reporting to the NIA officer weekly and to the police station daily (frequency reduced over time).
- Surrendering passport.
- Not making statements in media or social media regarding the proceedings.
- Not communicating with co-accused or persons involved in similar activities.
- Cooperating for expeditious disposal of the trial.
- Not influencing witnesses or tampering with evidence. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

JUDGMENT :

1. The National Investigation Agency (“NIA”) has filed the present appeal challenging order dated 17/03/2020 passed by the Additional Sessions Judge and Special Judge under the National Investigation Agency Court, Greater Mumbai (“NIA Court”) whereby the bail application filed by the respondent was allowed and the respondent was directed to be released on bail subject to specific conditions. The NIA Court granted stay of its own order till 27/03/2020. The NIA immediately approached this court by filing the present appeal. On 26/03/2020, this court continued the stay of the aforesaid impugned order passed by the NIA Court, as a consequence of which, the respondent has continued in custody.

2. The facts, in brief, leading to filing of the present appeal are that on 28/11/2014, a First Information Report (“FIR”) was registered at the behest of the NIA against the respondent for offences punishable under Section 125 of the Indian Penal Code (“IPC”) and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”). It was the case of the NIA that the respondent along with three absconding accused persons had visited Iraq ostensibly for pilgrimage along with other persons, who were on pilgrimage but, the accused persons including the respondent never visited the sites of pilgrimage and, instead, escaped into Iraq and Syria with the intention of indulging in jihadi activities by joining Islamic State for Iraq and Levant (“ISIL”). According to the NIA, the said accused persons including the respondent herein formed an unlawful association with an intention to promote terrorism in Iraq, Syria and India. They also participated in terrorist activities in Syria and Iraq and they were likely to commit such acts in India also. The respondent had allegedly returned to India with the intention of carrying out such terrorist acts in India, including blowing up the Police Headquarter at Mumbai.

3. On 29/11/2014, the NIA arrested the respondent and produced him before the jurisdictional NIA Court at Mumbai and he was remanded to police custody. Thereafter, investigation was undertaken and eventually, detailed charge-sheet running into thousands of pages was filed in the NIA Court against the respondent. There is no dispute about the fact that the respondent has continued in custody since the aforesaid date of his arrest, thereby showing that he has remained in custody for more than six years.

4. The respondent had initially applied for grant of default bail, but the said application was rejected. Thereafter, he had filed two applications for grant of bail on merits, which stood dismissed and, there is no dispute about the fact that the appeals filed against such orders were rejected by this court.

5. Thereafter, he moved another bail application before the NIA Court, which was also rejected on merits. In the appeal filed against the said order, a Division Bench of this court recorded the submissions made on behalf of the respondent that since certain materials, including depositions of witnesses examined by the prosecution which allegedly deviated from their statements in the charge-sheet, were not looked into by the NIA Court, it had become necessary to send the matter back to the NIA Court for fresh consideration of the said bail application moved on behalf of the respondent. Accordingly, by order dated 04/02/2020, this Court quashed the order of the NIA Court by directing in Criminal Appeal No.1341 of 2019 that the application for bail (Ex-445) filed by the respondent deserves to be restored back to the file of NIA Court for considering it afresh in accordance with law. Accordingly, the application stood restored for fresh consideration before the NIA Court. It is in pursuance of the said application being restored that the NIA Court heard arguments afresh and passed the impugned order dated 17/03/2020, whereby the bail application of the respondent stood conditionally allowed.

6. The NIA Court while passing the impu

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2021 Supreme(Bom) 198

HIGH COURT OF JUDICATURE AT BOMBAYS.S. SHINDE & MANISH PITALE, JJ.The National Investigation Agency, Ministry of Home Affairs, Government of India, Cumballa Hill Telephone Exchange, Mumbai – Appellant Versus Areeb Ejaz Majeed – Respondents Criminal Appeal No. 389 of 2020Decided On : 23-02-2021

The right to fair and speedy trial is recognized under Article 21 of the Constitution of India. The High Court's decision reaffirms the principle that undertrials cannot be allowed to languish for years in jail while trials proceed at a slow pace.

Cases Referred (4)