BOMBAY HIGH COURT
S.S. Shinde and N.J. Jamadar, JJ.
(Through Video Conferencing)
Iqbal Ahmed Kabir Ahmed – Appellant
versus
State of Maharashtra – Respondent
Criminal Appeal No.355 of 2021
Decided on 13.8.2021

IMPORTANT POINTS
(1) Statutory restriction like Section 43-D(5) of UAPA per se does not operate as an impediment on powers of Constitutional Court to grant bail, if a case of infringement of constitutional guarantee of protection of life and personal liberty is made out.
(2) At stage of granting bail detailed examination of material/ evidence and elaborate documentation of merits of case are not required to be undertaken – Court is, however, expected to give reasons for granting or refusing to grant bail.
(3) Mere discussion or advocacy of a particular cause, would not fall within dragnet of offence.
(4) Where period of incarceration awaiting adjudication of guilt become unduly long, right to life and protection of fair and reasonable procedure, envisaged by Article 21, are jeopardized.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 439 – Unlawful Activities (Prevention) Act, 1967 – Section 43-D – Bail application – Considerations – Ordinarily, nature and seriousness of offence, circumstances in which offences were allegedly committed, circumstances peculiar to accused in a given case, nature and character of evidence/material pressed into service against accused, possibility or otherwise of presence of accused not being secured at trial, reasonable apprehension of witnesses being tampered with and larger public interest are factors which influence exercise of discretion – At stage of granting bail detailed examination of material/ evidence and elaborate documentation of merits of case are not required to be undertaken – Court is, however, expected to give reasons for granting or refusing to grant bail – Such an exercise is markedly different from discussing merits/demerits of case, as a Court would do at stage of determination of guilt or otherwise of accused – Requirement of ascribing reasons becomes more critical where there are statutory restrictions in the matter of grant of bail like Section 43D of UAPA – Section 43D(5) contains an interdict against grant of bail unless Public Prosecutor has been given opportunity of being heard and on a perusal of case diary or report made under Section 173 of Code, Court is of the opinion that there are no reasonable grounds for believing that accusation against such person is prima facie true – Restriction on granting of bail specified in Section 43D(5) is in addition to restriction under the Code or any other law for the time being in force on granting of bail.

Held: To begin with, the considerations which normally weigh with the Court in granting or refusing go grant bail in a non bailable offence. Ordinarily, the nature and seriousness of the offence, the circumstances in which the offences were allegedly committed, the circumstances peculiar to the accused in a given case, the nature and character of the evidence/material pressed into service against the accused, the possibility or otherwise of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with and the larger public interest are the factors which influence the exercise of discretion.

Moreover, at the stage of granting bail a detail examination of material/ evidence and elaborate documentation of the merits of the case are not required to be undertaken. The Court is, however, expected to give reasons for granting or refusing to grant bail. Such an exercise is markedly different from discussing merits/demerits of the case, as a Court would do at the stage of determination of guilt or otherwise of an accused. The requirement of ascribing reasons becomes more critical where there are statutory restrictions in the matter of grant of bail like section 43D of the UAPA. Section 43D(5) contains an interdict against the grant of bail unless the Public Prosecutor has been given an opportunity of being heard and on a perusal of case diary or the report made under section 173 of the Code, the Court is of the opinion that there are no reasonable grounds for believing that the accusation against such person is prima facie true. Section 43D(6) provides that the restriction on granting of bail specified in section 43D(5) is in addition to the restriction under the Code or any other law for the time being in force on granting of bail. (Paras 12 and 13)

(B) Unlawful Activities (Prevention) Act, 1967 – Sections 13, 16, 18, 18B, 20, 38 and 39 – Criminal Procedure Code, 1973 – Section 439 – Bail application – There is degree of difference between satisfaction to be recorded by Court that there are reasonable grounds for believing that accused is “not guilty” of such offence and satisfaction to be recorded for the purposes of 1967 Act that there are reasonable grounds for believing that accusation against such person is “prima facie” true – Greater degree of satisfaction is required to record an opinion that there are reasonable grounds to believe that accused is not guilty of alleged offence – Restriction on grant of bail under special enactments which provide for recording a satisfaction that there are reasonable grounds to believe that accused is not guilty of offences charged under those enactments, appears to be more stringent.

Held: To lend support to this submission, learned PP placed a very strong reliance on the judgment of the Supreme Court in the case of National Investigation Agency vs. Zahoor Ahmad Shah Watali, (2019) 5 Supreme Court Cases 1.

It would be contextually relevant to note that adverting to the restrictive provisions in special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, in the case of Zahoor Watali (supra), the Supreme Court observed that the requirement in those special enactments to record an opinion that there are reasonable grounds for believing that the accused is not guilty of the alleged offence stands on a different footing. It was in terms observed that there is a degree of difference between the satisfaction to be recorded for the purpose of UAPA that there are reasonable grounds for believing that the accusation against such person is, “prima facie true”. In one sense the degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true as compared to the opinion that the accused is not guilty of such offences as required under the other special enactments.

In our considered opinion, if the expression, “reasonable grounds to believe that the accusation is prima facie true” and “reasonable grounds for believing that the accused is not guilty” are compared and contrasted, a greater degree of satisfaction is required to record an opinion that there are reasonable grounds to believe that the accused is not guilty of the alleged offence, albeit prima facie. The restriction on grant of bail under the special enactments which provide for recording a satisfaction that there are reasonable grounds to believe that the accused is not guilty of the offences charged under those enactments, appears to be more stringent. (Paras 20, 27 and 28)

(C) Criminal Procedure Code, 1973 – Section 439 – Unlawful Activities (Prevention) Act, 1967 – Sections 13, 16, 18, 18B, 20, 38 and 39 – Explosives Substances Act, 1908 – Sections 4, 5 and 6 – Indian Penal Code, 1860 – Section 120B – National Investigation Agency Act, 2008 – Section 21 – Bail application – Rejection – Material qua accused, at the highest, is in realm of discussions – Mere discussion or advocacy of a particular cause, would not fall within dragnet of offence – At this juncture, there is no prima facie material to indicate that accused No. 3 instigated commission of offence or insurgency – Nor there is, prima facie, material to indicate that accused No. 3 advocated violent reactions – Material which is pressed into service against appellant, prima facie, does not appear to be of such quality as to sustain a reasonable belief that accusation against appellant is true – In totality of circum-stances, bar envisaged by Section 43-D(5) may not operate with full force and vigour – Accused No. 3 is in custody for more than five years – There is no likelihood of instant case being decided within reasonable time in near future – Right of accused to speedy trial, which flows from right to life under Article 21 of Constitution, comes to fore – Further incarceration of appellant, in face of extremely unlikely situation of trial being completed in near future, would be in negation of protection of life and personal liberty under Article 21 – Bail granted. (Paras 31, 32, 35, 36, 37, 38, 44, 45 and 46)

(D) Constitution of India – Article 21 – Right to speedy trial – Right to speedy trial, in prosecutions where special enactments restrict powers of Court to grant bail, faces a competing claim of interest of society and security of State – In such prosecutions, if trials are not concluded expeditiously, procedure which deprives personal liberty for an inordinate period is then put to test of fairness and reasonableness, envisaged by Article 21 of Constitution – Where period of incarceration awaiting adjudication of guilt become unduly long, right to life and protection of fair and reasonable procedure, envisaged by Article 21, are jeopardized. (Para 39)

(E) Unlawful Activities (Prevention) Act, 1967 – Section 43-D – Grant of bail – Statutory restriction like Section 43-D(5) of UAPA per se does not operate as an impediment on powers of Constitutional Court to grant bail, if a case of infringement of constitutional guarantee of protection of life and personal liberty is made out – Rigours of such statutory restriction would melt down in face of long incarceration of an undertrial prisoner – In such a situation, prayer of entitlement for bail on count of prolonged delay in conclusion of trial is required to be appreciated in backdrop of period of incarceration, prospect of completion of trial in a reasonable time, gravity of charge and attendant circumstances.

Held: The Supreme Court has thus exposited the legal position that the statutory restriction like section 43-D(5) of the UAPA per se does not operate as an impediment on the powers of the constitutional Court to grant bail, if a case of infringement of the constitutional guarantee of protection of life and personal liberty is made out, and the rigours of such statutory restriction would melt down in the face of long incarceration of an under trial prisoner. In such a situation, the prayer of entitlement for bail on the count of prolonged delay in conclusion of trial is required to be appreciated in the backdrop of period of incarceration, the prospect of completion of trial in a reasonable time, the gravity of the charge and attendant circumstances. (Para 42)

Result: Criminal Appeal allowed.