Statutory restrictions on bail under Section 43-D(5) of the UAPA do not oust the power of constitutional courts to grant bail when prolonged incarceration violates the constitutional right to a speedy trial.

JUDGMENT :

(Per : A.S. Gadkari, J.)

1) This is an Appeal under Section 21(4) of the National Investigation Agency Act, 2008 (for short ‘NIA Act’) by the original Accused No.3, impugning the Order dated 6th November 2019, passed in Criminal Bail Application No. 3170 of 2018, in Special A.T.S. No. 1 of 2018, by the learned Additional Sessions Judge, Pune. By the impugned Order, the Application for bail filed by the Appellant under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) for the offences punishable under Sections 121, 121-A, 124-A, 153-A, 505(1)(b), 117, 120-B read with 34 of the Indian Penal Code, 1872 (IPC) and Sections 13, 16, 17, 18, 18B, 20, 38, 39, 40 of the Unlawful Activities (Prevention) Act, 1967, (UAPA Act), has been rejected by the trial Court.

2) The present Appeal was filed on 17th December 2019. The reasons for pendency of Appeal for several years can be easily discerned from the various Orders passed prior to this.

3) It is an admitted fact on record that, all the other 15 co-accused have been granted bail either by this Court or by the Hon’ble Supreme Court and he is the only Appellant, who is still behind bars. It is further an admitted fact on record that, as of today, the Appellant has undergone about 7 years and 11 months in pre-trial incarceration i.e. much more than the other accused persons, who have been released on bail by this Court. The Appellant is therefore entitled to be released on bail on the ground of parity with other accused persons and predominantly with Sudhir Dhavale (accused No.1) and Hany Babu (accused No. 12).

4) Mr. Singh, learned Additional Solicitor General of India, opposed the Appeal. He submitted that, the Appellant is also an accused in Sessions Case No. 57 of 2023, pending on the file of learned Additional Sessions Judge, Aheri, District Gadchiroli. He submitted that, offence alleged therein is of a more serious nature, than the case in hand, and therefore, the Appellant ought not be released on bail. He submitted that, in the case of Gulfisha Fatima Vs. State (Govt. of NCT of Delhi), reported in 2026 SCC OnLine SC 10, in para Nos. 56, 58 and 61, the Hon’ble Supreme Court has reconsidered the position of prolonged incarceration of an accused person and has also distinguished the case of Union of India Vs. K.A. Najeeb. He submitted that, mere prolonged incarceration cannot be the sole ground for releasing an accused on bail. He therefore prayed that, the Appeal may be dismissed.

5) A three Judge Bench of the Hon’ble Supreme Court in the case of Union of India Vs. K.A. Najeeb, reported in (2021) 3 SCC 713, in paragraph Nos. 17 and 18 has held as under:

“17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the 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 undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent’s prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being complet