Bom HC grants bail to terror accused due to violation of right to speedy trial

ISIS

The Bombay High Court granted bail to an accused alleged to be an ISIS member, while observing that he had spent a considerable time in prison and the trial would not be completed in near future. The Division bench of Justices SS Shinde and NJ Jamadar observed that denial of bail, in such circumstances would render the procedure not only unreasonable but unconscionable as well.

The bench referred, among other judgements, the case earlier this year where the Supreme Court had granted bail to an accused under UAPA, on the basis of long incarceration and the violation of right to speedy justice as also the right to life.

The appellant, Iqbal Ahmed Kabir Ahmed filed the appeal under section 21 of the NIA Act against an order passed by Special Judge denying him bail, in May 2019. The appellant was arrested in 2016 under sections of Indian Penal Code, Unlawful Activities (Prevention) Act, 1967 (UAPA) and Explosive Substances Act. Chargesheet was filed by ATS in October 2016 and after the case was transferred to NIA, another chargesheet was filed in July 2019. The allegations against him is that he was a co-conspirator with other accused who were members of ISIS and had procured material to prepare IED.

Arguments

Senior Advocate Mihir Desai appearing for the appellant argued that the Special Judge fell in error in not properly appreciating the role attributed to the appellant when no explosives were found in the possession of the appellant and nothing incriminating was recovered from him. He further contended that having regard to the fact that the appellant has been in custody for almost five years, and it is very unlikely that the trial would be concluded in reasonable time. Hence, he submitted that, on this count of the prolonged incarceration also the appellant deserves to be released on bail, lest the constitutional guarantee of right to life and personal liberty would be jeopardised.

Special Public Prosecutor AS Pai opposed the appeal and said that in the backdrop of the grave nature of allegations and the material on record which prima facie indicates that the allegations against the accused are true, the bail was rightly denied by the Special Court. She argued that the offence of criminal conspiracy was prima facie made out based on the statements of witnesses. Additionally, there was evidence of recovery of oath of joining ISIS and the electric switch board where the IED was soldered.

Court’s observations

The court stated that in NIA vs. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, the apex court had 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”.

The court pointed out that 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 court also cited Union of India vs. K.A. Najeeb (2021) 3 SCC 713 where the Supreme Court had observed that the bail conditions under UAPA were less stringent than those under NDPS, where the court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail.

The court perused the material on record and observed that the statements made by the other accused that they got together and discussed the threats to Islam and the actions of ISIS were in the realm of discussion and deliberation which the accused and those witnesses had. The court stated that there was no prima facie material to indicate that the appellant instigated the commission of offence or insurgency or that he advocated violent reactions.

Further, the recovery of the oath form from the appellant’s house also does not incriminate him, the court said since it pointed out that the accused no.1 stated that these forms were distributed to many persons and the handwriting on the oath form is not of the appellant. The mere possession of such oath form, without subscribing thereto, prima facie, does not appear to be an incriminating circumstance, the court said.

Court’s findings

The court observed that the material which is pressed into service against the appellant, prima facie, does not appear to be of such quality as to sustain a reasonable belief that the accusation against the appellant is true.

The court also considered the long incarceration period and noted that the recording of evidence is yet to commence with more than 150 witnesses to be examined. As of April 19, 2021, the learned special Judge, seized with the NIA Case No.3 of 2018, had 225 cases on his file, including 16 NIA special cases, 43 MCOCA special cases and 64 Sessions Cases, the court pointed out.

“If all these factors are considered in juxtaposition with each other, there is no likelihood of the instant case being decided within reasonable time in near future,” the court said.

“In the aforesaid setting of the matter, right of accused to speedy trial, which flows from the right to life under Article 21 of the Constitution, comes to the fore. This right to speedy trial, in the prosecutions where the special enactments restrict the powers of the Court to grant bail, faces a competing claim of the interest of society and security of State. In such prosecutions, if the trials are not concluded expeditiously, the procedure which deprives the personal liberty for an inordinate period is then put to the test of fairness and reasonableness, envisaged by Article 21 of the Constitution. Where the period of incarceration awaiting adjudication of guilt become unduly long, the right to life and the protection of fair and reasonable procedure, envisaged by Article 21, are jeopardized,” the court observed.

The court cited the apex court in Saheen Welfare Association vs. Union of India 1996 SCC (2) 61 where it stated that, “While it is essential that innocent people should be protected from terrorists and disruptionists, it is equally necessary that terrorists and disruptionists are speedily tried and punished. In fact, the protection to innocent civilians is dependent on such speedily trial and punishment. The conflict is generated on account of the gross delay in the trial of such persons. This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted.”

The Supreme Court in KA Najeeb case emphasised that under trials cannot be detained indefinitely pending trial, and that once it is found that timely conclusion of trial would not be possible and accused has suffered incarceration for a significant period of time, the Court would be obligated to enlarge the accused on bail. In this case, the apex court “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”.

The court thus observed that 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.

The court also observed that maximum sentence for the offences may extend to life imprisonment but the appellant has undergone more than half of the maximum punishment prescribed for the offences (7 years or 10 years), other than ones which entail imprisonment for life.

The court said that further incarceration of the appellant, in the face of extremely unlikely situation of the trial being completed in near future, would be in negation of the protection of life and personal liberty under Article 21 and that denial of bail would render the procedure not only unreasonable but unconscionable as well.

The court thus granted bail to the appellant on merits and on the ground of prolonged incarceration and set aside the Special court order denying him bail. The court ordered that the appellant be released on bail on furnishing a PR bond in the sum of Rupees One Lakh and one or two solvent sureties in the like amount.

The complete judgement may be read here: