Supreme Court Grants Bail to Accused After 9.5 Years of Incarceration: Ashim Kumar vs. National Investigation Agency (2021)

Date of the Judgment: 01 December 2021

Citation: 2021 INSC 720

Judges: Justice Ajay Rastogi and Justice Abhay S. Oka

Can an individual be held in jail indefinitely while awaiting trial? The Supreme Court of India recently addressed this critical question in a case involving an accused held for over nine years. The core issue was balancing the severity of the charges under the Unlawful Activities (Prevention) Act, 1967 (UAPA) with the fundamental right to a speedy trial and personal liberty. The judgment, authored by Justice Ajay Rastogi, with Justice Abhay S. Oka concurring, highlights the importance of timely justice and the limitations of prolonged pre-trial detention.

Case Background

The case began with an FIR (No. 138/2012) lodged on March 1, 2012, by an Inspector of the Special Task Force. The FIR initially included charges under Sections 120B, 121, 121A, and 122 of the Indian Penal Code (IPC), Section 25(1A) of the Arms Act, 1959, and Section 5 of the Explosive Substances Act, 1908, against five individuals. Later, the National Investigation Agency (NIA) took over the investigation, re-registering the case as RC No. 01/2012/NIA/DLI on April 12, 2012, adding Sections 18, 20, and 40(1)(b)(c) of the UAPA.

The appellant, Ashim @ Asim Kumar Haranath Bhattacharya, was named as accused no. 6 in the first supplementary charge sheet filed on December 27, 2012. He was arrested on July 6, 2012, while already in jail for another case (FIR No. 28/2007), in which he was later acquitted on February 15, 2014. Charges were framed on June 20, 2019, under Sections 121, 121A, 122, and 120B of the IPC, Sections 25(1)(a), 25(1A), and 25(1-AA) of the Arms Act, 1959, and Sections 18 and 20 of the UAPA. The trial has been significantly delayed, with the cross-examination of the first prosecution witness still ongoing, despite a list of 298 witnesses.

Timeline

Legal Framework

The case involves several key legal provisions:

• Indian Penal Code (IPC): Sections 120B (criminal conspiracy), 121 (waging war against the Government of India), 121A (conspiracy to commit offenses under section 121), and 122 (collecting arms with intention of waging war against the Government of India).
• Arms Act, 1959: Section 25(1A) (possession of prohibited arms), 25(1)(a), and 25(1-AA).
• Explosive Substances Act, 1908: Section 5.
• Unlawful Activities (Prevention) Act, 1967 (UAPA): Sections 18 (punishment for conspiracy), 20 (punishment for being member of terrorist gang or organisation), and 40(1)(b)(c).
• National Investigation Agency Act, 2008: Section 19 mandates that trials under this Act be conducted on a day-to-day basis. Section 11 discusses the designation of Special Courts by the Central Government in consultation with the Chief Justice of the High Court.

The UAPA is a stringent law designed to combat terrorism and unlawful activities. Section 43-D(5) of the UAPA imposes restrictions on granting bail to the accused. The Supreme Court has to balance these restrictions with the fundamental rights guaranteed under the Constitution.

Arguments

Appellant’s Submissions:

• The appellant, Ashim Kumar, sought post-arrest bail, emphasizing the prolonged period of incarceration as an undertrial prisoner, which was nine and a half years.
• It was argued that the trial was significantly delayed, with the cross-examination of the first witness still incomplete.
• The appellant’s age (74 years) was also highlighted as a factor for consideration.
• The appellant contended that despite the serious charges, the delay in the trial and the prolonged detention violated his fundamental right to a speedy trial.

Respondent’s Submissions:

• The National Investigation Agency (NIA) vehemently opposed the bail application.
• The respondent argued that the delay in the trial was not attributable to the prosecution.
• The respondent requested the Supreme Court to direct the trial court to conduct the trial on a day-to-day basis to expedite the proceedings.
• The respondent emphasized the seriousness of the charges against the appellant, which included offenses under the UAPA and other acts.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the appellant is entitled to post-arrest bail, considering the long period of incarceration as an undertrial prisoner.
2. Whether the delay in the trial and the large number of witnesses justify the grant of bail despite the stringent provisions of the UAPA.
3. Whether the mandate of Section 19 of the National Investigation Agency Act, 2008, regarding day-to-day trials, is being followed in letter and spirit.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court allowed the appeal and granted post-arrest bail to the appellant. The Court considered the prolonged incarceration of the appellant, who had been in custody for nine and a half years as an undertrial prisoner. The Court also noted the slow pace of the trial, with the cross-examination of the first witness still ongoing and a large number of witnesses yet to be examined. The Court emphasized that while the charges against the appellant were serious, the period of incarceration and the delay in the trial could not be ignored.

How each authority was viewed by the Court?

The Supreme Court relied on Union of India vs. K.A. Najeeb [2021(3) SCC 713]* to emphasize that statutory restrictions under UAPA do not override the constitutional right to bail, especially when there is prolonged incarceration and no likelihood of a speedy trial. The Court also noted that the mandate under Section 19 of the National Investigation Agency Act, 2008* for day-to-day trials was not being followed. The Court emphasized that deprivation of personal liberty without ensuring a speedy trial is inconsistent with Article 21 of the Constitution of India*.

What weighed in the mind of the Court?

The Supreme Court’s decision to grant bail was primarily influenced by the following factors:

• Prolonged Incarceration: The appellant had been in custody for nine and a half years as an undertrial, which the Court deemed an excessive period.
• Delay in Trial: The trial had not progressed significantly, with the cross-examination of the first witness still incomplete, and a large number of witnesses remaining.
• Right to Speedy Trial: The Court emphasized the importance of the right to a speedy trial as a fundamental aspect of personal liberty under Article 21 of the Constitution.
• Balancing Severity of Charges with Liberty: While acknowledging the serious nature of the charges under the UAPA, the Court balanced this with the prolonged incarceration and the lack of progress in the trial.
• Non-Compliance with NIA Act: The Court noted the failure to conduct day-to-day trials as mandated by Section 19 of the National Investigation Agency Act, 2008.

Fact:Law Ratio

The court’s decision was influenced more by the factual aspects of the case, such as the prolonged incarceration and the delay in the trial, than purely legal considerations.

The Court’s reasoning was based on the following points:

• The Court observed that “the liberty guaranteed in 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 is imperative.”
• The Court noted that “the undertrials cannot indefinitely be detained pending trial” and that “once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.”
• The Court further stated that “deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India.”

Key Takeaways

• Prolonged Incarceration is a Ground for Bail: The Supreme Court has emphasized that prolonged incarceration as an undertrial prisoner can be a valid ground for granting bail, even in cases involving serious charges under stringent laws like the UAPA.
• Right to Speedy Trial is Paramount: The judgment underscores the importance of the right to a speedy trial as a fundamental right under Article 21 of the Constitution.
• Balancing Statutory Restrictions with Constitutional Rights: The Court clarified that statutory restrictions on bail, such as those under Section 43-D(5) of the UAPA, do not override the constitutional right to personal liberty and a speedy trial.
• Need for Effective Implementation of NIA Act: The Court highlighted the need for effective implementation of Section 19 of the National Investigation Agency Act, 2008, which mandates day-to-day trials in Special Courts.
• Direction to Designate More Special Courts: The Court directed the State of West Bengal and the Central Government to designate more Special Courts to expedite trials under the NIA Act.

Directions

The Supreme Court issued the following directions:

• The appellant was to be produced before the trial court within three days and released on post-arrest bail.
• The trial court was given the liberty to impose appropriate conditions for bail to ensure the appellant’s availability for trial.
• The State of West Bengal was directed to designate more dedicated Courts of Sessions as Special Courts for the trial of offenses specified in the schedule appended to the Act 2008.
• The Central Government, in consultation with the Chief Justice of the High Court, Calcutta, was directed to exercise its power to ensure that trials pending under the Act 2008 proceed speedily.

Development of Law

The ratio decidendi of this case is that prolonged incarceration as an undertrial prisoner, coupled with significant delays in the trial, can be a valid ground for granting bail, even in cases involving serious charges under stringent laws like the UAPA. This judgment reinforces the constitutional right to a speedy trial and clarifies that statutory restrictions on bail must be balanced with the fundamental rights guaranteed under the Constitution. There is no change in the previous position of law, but it reinforces the importance of speedy trials and the limitations of prolonged pre-trial detention.

Conclusion

In conclusion, the Supreme Court’s judgment in Ashim @ Asim Kumar Haranath Bhattacharya vs. National Investigation Agency is a significant ruling that underscores the importance of the right to a speedy trial and the limitations of prolonged pre-trial detention. The Court granted bail to the appellant, who had been incarcerated for nine and a half years, emphasizing that the right to personal liberty cannot be compromised by delays in the judicial process. The judgment also directs the State of West Bengal and the Central Government to take steps to ensure that trials under the National Investigation Agency Act, 2008, are conducted expeditiously, in line with the mandate of the law.