1996(1) Crimes 166 (SC)
SUPREME COURT OF INDIA
A.M. Ahmadi, CJI & Sujata V. Manohar, J.
Shaheen Welfare Association - Petitioner
versus
Union of India & Ors. - Respondents
Writ Petition (Crl.) No. 117 of 1995
Decided on 27-2-1996

VERY IMPORTANT POINT
No body can justify gross delay in disposal of TADA Cases when under-trials perforce remain in jail due to stringent provisions denying bail to them and little hope of speedy trial, giving rise to possible situation that may justify invocation of Article 21. The proper course is to classify under-trials in TADA Cases into four categories as suggested in this historic judgment and guidelines laid down for grant of bail to each of these categories and also regarding conditions to be put for grant of bail as a "onetime measure" to alleviate current situation.

Headnote:Constitution of India 1950-Articles 21 and 22-Terrorist and Disruptive Activities (Prevention) Act, 1987-Section 20(8)-Public Interest litigation by filing writ petition-One of the prayers is issuance of a direction that the respondents should file a list of detenus lodged in jails in different States under TADA and then a direction for the release of those TADA detenus against whom proper evidence is not with the prosecution and where procedure prescribed under law is not followed-Court passed orders from time to time-Data collected from various States about number of live cases under TADA and number of Designated Courts to deal them-Very little prospect found of speedy trial of TADA cases because of absence of an adequate number of Designated Courts even in those cases where charge-sheet has been filed and the cases are ready for trial-But Bail is severely restricted in TADA cases due to Section 20(8)-Solution in view of competing claims of safety of nation and right of under-trials for speedy trial.

       Held: It is in this context that it has become necessary to grant some relief to those persons who have been deprived of their personal liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and of the nation needs to be safeguarded looking to the nature of the offences these under-trials have been charged with. But the ultimate justification for such deprivation of- liberty pending trial can only be their being found guilty of the offences for which they have been charged. If such a finding is not likely to be arrived at within a reasonable time some relief becomes necessary. (Para 8)

       The petition thus poses the problem of reconciling conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities. (Para 9)

       These competing claims can be reconciled by taking a pragmatic approach. The proper course is to identify from the nature of the role played by each accused person the real hardcore terrorists or criminals from others who do not belong to that category; and apply the bail provisions strictly in so far as the former class is concerned and liberally in respect of the latter class. This will release the pressure on the Courts in the matter of priority for trial. Once the total number of prisoners in jail shrinks, those belonging to the former class and, therefore, kept in jail can be tried on a priority basis. That would help ensure that the evidence against them does not fade away on account of delay. Delay may otherwise harm the prosecution case and the harsh bail provisions may prove counter-productive. A pragmatic approach alone can save the situation for; otherwise, one may find that many of the under-trials may be found to have completed the maximum punishment provided by law by being in jail without a trial. Even in cases where a large number of persons are tied up with the aid of Sections 120B or 147, I.P.C., the role of each person can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered. With inadequate number of courts, the only pragmatic way is to reduce the prison population of TADA detenus and then deal with hardcore under-trials on priority basis before the evidence fades away or is lost. Such an approach will take care of both the competing interests. This is the approach which we recommend to courts dealing with TADA cases so that the real culprits are promptly tried and punished. (Paras 11 & 12)

       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987-Section 20(8) and 20(9)-Stringent bail provisions under-Certain reliefs to under-trial prisoners. under TADA-Four categories of under-trials suggested to consider Bail-Relaxations suggested for them accordingly as "onetime measure" only.

       Held: For the purpose of grant of bail to TADA detenus, we; divide the under-trials into three (? four) classes, namely, (a) hardcore under-trials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular; (b) other under-trials whose overt acts or involvement directly attract Sections 3 and/or 4 of the TADA Act; (c) under-trials who are roped in, not because of any activity directly attracting Sections 3 and 4, but by virtue of Sections 120B or 147, I.P.C., and (d) those under-trials who were found possessing incriminating articles in notified areas and are booked under Section 5 of TADA. (Para 13)

       Ordinarily, it is true that the provisions of Sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a pragmatic and just approach no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity of the charges. Adopting this approach we are of the opinion that under-trials falling within group (a) cannot receive liberal treatment. Cases of under-trials falling in group (b) would have to be differently dealt with, in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complainant, the family members of the complainant, or witnesses. Cases of under-trials falling in groups (c) and (d) can be dealt with leniently and they can be released of they have been in jail for three years and two years respectively. Those falling in group (b), when released on bail, may be released on bail of not less than Rs.50,000/- with one surety for like amount and those falling in groups (c) and (d) may be released on bail on their executing a bond for Rs. 30,000 with on surety for like amount, subject to the following terms:

       (1) the accused shall report to the concerned police station once a week;

       (2) the accused shall remain within the area of jurisdiction of the Designated Court pending trial and shall not leave the area without the permission of the Designated Court;

       (3) the accused shall deposit his passport, if any, with the Designated Court. If he does not hold a passport, he shall file an affidavit to that effect before the Designated Court. The Designated Court may ascertain the correct position from the passport authorities, if it deems it necessary;

       (4) The Designated Court will be at liberty to cancel the bail if any of these conditions is violated or a case for cancellation of bail is otherwise made out.

       (5) Before granting bail, a notice shall be given to the public prosecutor and an opportunity shall be given to him to oppose the application for such release. The Designated Court may refuse bail in very special circumstances for reasons to be recorded in writing. (Para 14)

       These conditions may be relaxed in cases of those under groups (c) and (d) and, for special reasons to be recorded, in the case of group (b) prisoners. Also these directions may not be applied by the Designated Court in exceptionally grave cases such as the Bombay Bomb Blast Case where a lengthy trial is inevitable looking to the number of accused, the number of witnesses and the nature of charges unless the Court feels that the trial is being unduly delayed. However, even in such cases it is essential that the Review. Committee examines the case against each accused bearing the above directions in mind, to ensure that TADA provisions are not unnecessarily invoked. (Para 15)

       The above directions are a one-time measure meant only to alleviate the current situation. (Para 16)

       (iii) Constitution of India-Articles 14,21 81, 32-Trial of TADA Cases Suggestions by Supreme Court in the form of directions.

       Held: When stringent provisions have been prescribed under an Act such as TADA for grant of bail and a conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under-trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efficiently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods. It is unfortunate that none of the States to whom notices have been issued by us nor the Union of India, have come forward to state that they would set up an adequate number of Designated Courts in each State so that cases pertaining to TADA can be speedily disposed of. This has necessitated the above order as a one-time measure. (Para 17)