The Supreme Court affirmed an order granting bail to a person accused under Unlawful Activities (Prevention) Act (UAPA) considering the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon. The bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose, while refusing to interfere with the Kerala High Court’s order, held that an attempt has been made to strike a balance between State’s right to establish charges and respondent rights under the Constitution.
The appeal was filed by the Centre through National Investigation Agency (NIA) against Kerala High Court’s order granting bail to an accused charged under several sections of the Indian Penal Code, Explosive Substances Act as well as UAPA.
The respondent (accused) in association with other members of the Popular Front of India (PFI), decided to avenge a purported act of blasphemy by one Professor TJ Joseph who had framed a question paper which included a question which was considered objectionable against a particular religion by certain sections of society. Only July 4, 2010, a group of people with a common object, attacked the professor, forcefully intercepted the victim’s car, restrained him and chopped-off his right palm with choppers, knives, and a small axe. Country-made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the professor. Consequently, an FIR was lodged and over the course of investigation that the attack was part of a larger conspiracy involving meticulous preplanning, numerous failed attempts and use of dangerous weapons.
It was alleged that the respondent was one of the main conspirators however, owing to him being untraceable, the respondent was declared an absconder and his trial was split up from the rest of his co-conspirators. The co-accused were found guilty by special NIA court in April 2015. The respondent was traced and arrested on April 10, 2015 and a chargesheet was refiled by the National Investigation Agency against him. Between 2015 and 2019, he was denied bail 6 times, together by the special court and the high court, observing that prima facie he had prior knowledge of the offence, had assisted and facilitated the attack, himself waited near the place of occurrence, transported the perpetrators, sheltered, and medically assisted them afterwards.
In May 2019, when he approached the Kerala High Court the third time, against the special court’s order denying him bail, the high court released him noting that the trial was yet to begin though the respondent had been in custody for four years. Placing emphasis on the mandate for an expeditious trial under the National Investigation Agency Act, 2008, the High Court held that the undertrial respondent could not be kept in custody for too long when the trial was not likely to commence in the near future, for not doing so would cause serious prejudice and suffering to him.
The Supreme Court had stayed this bail order of the Kerala High Court resultantly, the respondent spent more than 5 years in judicial custody, without a trial.
The Appellant relied upon the judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 whereby the apex court held that bail proceedings under the special enactment were distinct and the Courts are duty-bound to refuse bail where the suspect is prima facie believed to be guilty. The fact that the respondent had absconded for years was pressed into aid as legitimate apprehension of his not returning if set free. About the trial, the appellant stated that NIA has filed an additional affidavit suggesting to examine 276 witnesses and at the same time expecting to conduct the trial on a day-to-day basis and complete it within around a year.
The counsel for the respondent pointed out that many of the co-accused had been acquitted by the court and even those who had been convicted, were sentenced to maximum 8 years in prison and given how the respondent had already spent considerably more than half of this sentence (5 years 5 months) “it would violate his Constitutional liberty and rights to have him serve most of his sentence without any adjudication of guilt by a judicial authority”.
The court initially observed that there is a vivid distinction between the parameters to be applied while considering a bail application, vis-à-vis those applicable while deciding a petition for its cancellation.
The court observed that the Kerala High Court did not take into consideration the likelihood of the respondent being guilty or not, or whether rigours of Section 43D(5) of UAPA are alien to him. Instead, the high court’s grounds for granting bail were based on the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The high court had relied upon the apex court’s judgment in Shaheen Welfare Association v. UOI (1996) 2 SCC 616 whereby it was laid out that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail.
The bench itself cited its judgment in Angela Harish Sontakke v. State of Maharashtra [SLP (Crl.) No. 6888 of 2015, Order dated 04.05.2016] whereby the court drew balance between the seriousness of the charges under UAPA with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years’ incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused. In Sagar Tatyaram Gorkhe v. State of Maharashtra [SLP (Crl.) No. 7947 of 2015, Order dated 03.01.2017], the apex court had granted bail to the accused charged under UAPA as he had been incarcerated for four years and over 147 witnesses were yet to be examined in trial.
The court held that this particular case was more egregious since not only has been in custody for more than 5 years but 276 witnesses are yet to be examined. The court further observed that the charges were framed in November 2020 and on two occasions, the NIA had failed to screen its endless list of witnesses.
The court observed that if the respondent was found guilty, he would also be sentenced around 8 years like the other convicted persons in the case and given that “two-third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.”
The court further clarified that in various judgements, this court had held that “liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial.”
The court held, “No person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter…Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.”
The court also clarified why the Watali judgement would not apply in this case. The court stated that the high court had conducted a mini-trial while granting bail, thus exceeding the limited scope of a bail petition. The court held that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III (Fundamental Rights) of the Constitution.
The court stressed upon the need to harmonise the restrictions under the statue and the powers under constitutional jurisdiction. The court held thus,
“Whereas at commencement of proceedings, 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 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”
While granting bail, the court held that “keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of our Constitution have been well protected.”
As a parting note, the court observed that bail conditions under Narcotic Drugs and Psychotropic Substances (NDPS) Act, are more stringent when compared to ones under UAPA. Under NDPS, the competent 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. Under UAPA Section 43D (5) merely provides another possible ground for the competent Court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion.
The court was not inclined to interfere with the high court’s order granting bail. The court however advised the trial court to impose additional conditions while releasing the respondent such marking presence at police station every week on Monday at 10am, informing in writing that he is not involved in any other new crime, refrain from participating in any activity which might enrage communal sentiments. The court stated that if the respondent violated these conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial, the special court may cancel his bail.
The complete judgment may be read here.