Statutory restrictions cannot override constitutional rights; prolonged pre-trial incarceration may warrant bail regardless of the serious nature of charges.

JUDGMENT :

A.S. GADKARI, J.

1. This is an Appeal under Section 21 (4) of the National Investigating Agency Act, 2008 (‘NIA’ Act) impugning the Order dated 02^nd December 2024, passed below Exhibit 461 in Sessions Case No. 192 of 2010, by the learned District Judge-1, Nashik, rejecting the Application of the Appellant under Section 439 of the Code of Criminal Procedure for bail in C.R. No. 21 of 2010 registered with ATS Police Station, Kalachowki, Mumbai for the offences punishable under Sections 419 , 420, 465, 467, 468, 471, 153(A), 109 and 120(B) read with Section 34 of the Indian Penal Code, 1860, Sections 4 , 5, 6 of the Explosive Substance Act, 1908, Sections 10 , 13, 15, 16, 18, 18-A, 18-B, 20 of the Unlawful Activities (Prevention) Act, 1967 and Section 12(1)(c) of the PASSPORT ACT , 1967.

2. Heard Mr.Khan, learned Advocate appearing for the Appellant and Mr. Chate, learned APP for State. Perused record.

3. Learned Advocate for the Appellant submitted that, the Appellant (Accused No.1) is behind bars since the date of his arrest i.e. 7^th September 2010 and has undergone about 15 years and 3 months of incarceration at pre-trial stage. He submitted that the co-accused namely, Mirza Himayat Beig @Umar (Accused No.2) has been directed to be released on bail by the co-ordinate Bench, by its Judgment dated 5^th January 2024 in Criminal Appeal No. 656 of 2023 and therefore the Appellant is also entitled to be released on bail on the ground of parity.

4. Per contra, learned APP opposed the Appeal and submitted that, the Appellant is the prime accused in the said crime. He submitted that, approximately 700 grams of RDX, 4 detonators, mobile phones and other incriminating documents were recovered at the instance of Appellant from a flat where the accused persons were residing. He submitted that, as of today, the prosecution has examined 27 witnesses and thus, the trial is steadily progressing. He therefore prayed that the Appeal of the Appellant may be dismissed.

5. Perusal of record indicates that the co-accused- Mirza Himayat Beig @Umar has been directed to be released on bail vide Judgment dated 5^th January 2024, by the co-ordinate Bench of this Court. The last five sentences of paragraph No. 16 of Judgment dated 5^th January 2024 reads as under:-

“…...Admittedly, the charge-sheet in the said case was filed on 4^th December 2010; charge was framed on 9^th March 2012 and the first witness was examined on 22^nd September 2017. Till date, evidence of 23 witnesses is over and the 24^th witness is in the witness-box. According to the prosecution, they propose to examine 30 more witnesses.”

6. As per the submission of the learned APP that, as of today 27 witnesses have been examined by the prosecution. It is thus clear that on 5^th January 2024, the recording of evidence of 24^th witness was in progress and in last about one year and eleven months, the prosecution has examined only 3 more witnesses. As per the list of witnesses annexed to the charge-sheet, the Investigating Agency has cited 116 witnesses. The fact that the Appellant is behind bars for about fifteen years and three months at pre-trial stage, is not in dispute.

6.1 A three Judges Bench of the Supreme Court, in the case of Union of India Vs. K.A. Najeeb , 2021 SCC OnLine SC 50, in paragraph Nos. 17 & 18, has held as under :

“17. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergo