1. Bail application during trial for offences under IPC and UAPA involving membership in an organization and alleged conspiracy to disrupt national sovereignty. (Para 2 , 3 , 4 , 5 )
Back
Next 
2024 Supreme(SC) 1204
SUPREME COURT OF INDIA
ABHAY S. OKA, AUGUSTINE GEORGE MASIH, JJ.
Athar Parwez – Appellant
Versus
Union of India – Respondent
Criminal Appeal No. 5387 of 2024 [Arising Out Of Slp (Crl) No. 9209 of 2024]
Decided On : 17-12-2024
Advocates appeared:
For the Appellant(s) : Dr. Aditya Sondhi, Sr. Adv. Mr. Divyesh Pratap Singh, Adv. Mr. Adil Sharfuddin, Adv. Mr. Shashank Singh, AOR Mr. Anubhav Kumar, Adv. Mr. Maeen Mavaram, Adv. Ms. Prapti Shrivastava, Adv.
For the Respondent(s): Ms. Aishwarya Bhati, A.S.G. Ms. Shivika Mehra, Adv. Ms. Bani Dikshit, Adv. Ms. Seema Bengani, Adv. Mr. Parantap Singh, Adv. Ms. Rajeshwari Shankar, Adv. Ms. Pooja Kumari, Adv. Mr. Arvind Kumar Sharma, AOR
For the Appellant(s) : Dr. Aditya Sondhi, Sr. Adv. Mr. Divyesh Pratap Singh, Adv. Mr. Adil Sharfuddin, Adv. Mr. Shashank Singh, AOR Mr. Anubhav Kumar, Adv. Mr. Maeen Mavaram, Adv. Ms. Prapti Shrivastava, Adv.
For the Respondent(s): Ms. Aishwarya Bhati, A.S.G. Ms. Shivika Mehra, Adv. Ms. Bani Dikshit, Adv. Ms. Seema Bengani, Adv. Mr. Parantap Singh, Adv. Ms. Rajeshwari Shankar, Adv. Ms. Pooja Kumari, Adv. Mr. Arvind Kumar Sharma, AOR
IMPORTANT POINT
Bail – Long incarceration and unlikelihood of trial being completed in near future has been taken as a ground for exercising its constitutional role by Constitutional Courts to grant bail – Accused cannot be allowed to languish in jail indefinitely without trial.
Headnote:
Unlawful Activities (Prevention) Act, 1967 – Section 43-D (5) – Criminal Procedure Code, 1973 – Section 439 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483] – Constitution of India – Article 21 – Bail application – FIR registered under Sections 120, 120-B, 121, 121A, 153A, 153B, & 34 of IPC – Giving precedence to protection of Fundamental Rights and emphasizing upon their primacy over statutory provisions in case of delayed trial – Constitutional right of speedy trial will have precedence over bar/strict provisions of statute and cannot be made the sole reason for denial of bail – Period of incarceration of accused could also be a relevant factor to be considered by Constitutional Courts not to be merely governed by statutory provisions – Long incarceration and unlikelihood of trial being completed in near future has been taken as a ground for exercising its constitutional role by Constitutional Courts to grant bail – Appellant cannot be allowed to languish in jail indefinitely without trial – If such approach is allowed Article 21 of Constitution of India would stand violated – Impugned judgment set aside and bail granted to appellant. (Paras 19, 20, 21, 32 and 34)
Facts of the case:
Appellant herein has approached this Court seeking bail during pendency of trial after dismissal of his bail application by High Court of Patna vide impugned Order dated 28.11.2023 in Criminal Appeal (DB) No.516 of 2023. Appellant is booked as accused in FIR which was registered under Sections 120, 120-B, 121, 121A, 153A, 153B, & 34 of Indian Penal Code, 1860.
Findings of Court:
Appellant be enlarged on bail on appropriate terms and conditions to be fixed by Special Court.
Result : Appeal allowed.
Judgement Key Points
No legal document content was provided in the
Legal Category Hierarchy
- crime and sentencing
- constitutional law
- practice and procedure
Table of Contents
2. Challenge to the validity of evidence recovery, absence of prima facie UAPA offences, and violation of Article 21 due to prolonged incarceration. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
3. Lack of prima facie evidence in witness statements, doubts regarding seizure location, and significant trial delay violating the right to a speedy trial. (Para 17 , 18 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 )
4. Constitutional right to speedy trial under Article 21 overrides statutory bail restrictions under Section 43-D(5) UAPA when trial is unlikely to conclude soon. (Para 19 , 20 , 21 )
5. Appeal allowed and impugned order set aside; direction to enlarge the appellant on bail. (Para 34 , 35 )
6. When can bail be granted despite the statutory bar under Section 43-D(5) of the UAPA?
Bail can be granted if the court, upon appreciation of the totality of evidence in the case diary and chargesheet, is satisfied that the accusations are prima facie not true based on broad probabilities. (Para 18 )
7. How does the right to a speedy trial under Article 21 interact with stringent bail conditions in the UAPA?
The constitutional right to a speedy trial takes precedence over statutory bars. Gross delay in trial conclusion, where an accused languishes in jail indefinitely, justifies the invocation of Article 21 to grant bail. (Para 19 , 20 , 21 , 32 )
8. What is the court's approach toward the period of incarceration in UAPA bail applications?
The period of incarceration is a relevant factor for constitutional courts. If the trial is unlikely to conclude in the near future, the mandate of Part III of the Constitution dilutes the effect of statutory bars. (Para 20 , 32 )
JUDGMENT
AUGUSTINE GEORGE MASIH, J.
1. Leave granted.
2. The Appellant herein has approached this Court seeking bail during the pendency of trial after dismissal of his bail application by the High Court of Patna vide impugned Order dated 28.11.2023 in Criminal Appeal (DB) No.516 of 2023. The Appellant is booked as Accused No.01 in FIR No. 827 of 2022, which was registered at Police Station Phulwari Sharif, Patna under Sections 120, 120-B, 121, 121A, 153A, 153B, & 34 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”).
3. The Appellant along with a co-accused Jalaluddin Khan alias Md. Jalaluddin was arrested on 12.07.2022. Allegations against the Appellant are that he is an active member of the Popular Front of India (hereinafter referred to as the “PFI”), and he along with his associates were planning to cause disturbance during the proposed visit of Prime Minister of India to Patna, this led to the raid being conducted on 11.07.2022 at first floor Ahmad Palace, Phulwari Sharif, Patna which was taken on rent by the Appellant from co-accused Md. Jalaluddin.
4. During the raid certain recoveries were carried out, prominent amongst them was a document titled “India 2047 towards rule of Islam in India, internal Document not for circulation”. Assertions have been made in the complaint on the basis of the documents seized that the Appellant along with the other members of the PFI aimed at disrupting the sovereignty of India and cause disaffection against the country.
5. Keeping in view the seriousness of the allegations and the offences involved, Government of India vide Official Order dated 22.07.2022 directed the National Investigating Agency (hereinafter referred to as the “NIA”) to take up the investigation. Accordingly, the NIA re-registered a case as R.C- 31/2022/NIA/DLI dated 22.07.2022 under Sections 120, 120B, 121, 121A, 153A, and Section 13 of the of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the “UAPA 1967”) and took up the investigation. After investigation, chargesheet against the Appellant was filed on 07.01.2023 under Sections 121, 121A, 122, 153A & 153B of the IPC and Sections 13, 17, 18, 18A, 18B & 20 of UAPA, 1967. However, charges till date have not been framed.
6. The learned Senior Counsel for the Appellant has asserted that the seizure of documents as has been alleged from the rented accommodation of the Appellant is highly suspicious and doubtful rather it is concocted and manufactured. As per the seizure memo/list, the recovery has been made from the second floor of Ahmad Palace which according to the prosecution itself was never in possession of the Appellant rather it is the first floor which was on rent with the Appellant. Even the rent deed on which reliance has been placed mentions explicitly about the first floor.
7. It is contended that going by the allegations against the Appellant, no offence under the UAPA, 1967 or even the predicate offence is made out. He submits that primary allegations are with regard to the alleged recovery seven-page document titled “India 2047 towards rule of Islam in India, internal document, not for circulation” which contained various recitals relatable to an Islamic rule which is to be established in India. It is contended that there are no independent witnesses to the alleged recovery seizure memo/list. As also the said document does not in any manner talk about any terrorist activities or overt act to be carried out which would create disharmony or religious hatred.
8. The learned Senior Counsel for the Appellant further submits that PFI has been banned vide a Gazette Notification dated 28.09.2022 issued by the Government of India for a period of five years. On the date when the raid was conducted i.e. 11.07.2022 and on the date of the Appellant’s arrest i.e. 12.07.2022, PFI was legally constituted organisation. Till date, this organisation has not been declared a terrorist organisation. He asserted that the chargesheet as has b
