Supreme Court Upholds Bail for UAPA Accused Citing Prolonged Incarceration: Union of India vs. K.A. Najeeb (2021)

Date of the Judgment: 01 February 2021

Citation: (2021) INSC 40

Judges: N.V. Ramana, J., Surya Kant, J., Aniruddha Bose, J.

Can an accused person be kept in jail indefinitely if their trial is significantly delayed? The Supreme Court of India addressed this crucial question in a case involving the Unlawful Activities (Prevention) Act, 1967 (UAPA). The court considered whether the stringent bail conditions under UAPA could be relaxed when an undertrial has spent a substantial period in jail without the trial commencing. The judgment was delivered by a three-judge bench comprising Justices N.V. Ramana, Surya Kant, and Aniruddha Bose, with the majority opinion authored by Justice Surya Kant.

Case Background

The case revolves around an attack on Professor T.J. Joseph, who was assaulted for allegedly including a question considered offensive to a particular religion in a Malayalam question paper. On 04 July 2010, the professor was attacked by members of the Popular Front of India (PFI), who chopped off his right palm. The respondent, K.A. Najeeb, was accused of being one of the main conspirators in the attack. He was charged under various sections of the Indian Penal Code, 1860, the Explosive Substances Act, 1908, and the UAPA.

Initially, Najeeb was untraceable and declared an absconder. The other co-accused were tried and convicted in 2015. Najeeb was arrested on 10 April 2015, and faced trial separately. He applied for bail multiple times, but his requests were denied until the High Court of Kerala granted him bail in 2019, citing the delay in the trial. The Supreme Court stayed this order, and Najeeb remained in custody for nearly five years and five months.

Timeline

Course of Proceedings

The respondent, K.A. Najeeb, was initially declared an absconder and his trial was separated from his co-accused. The co-accused were tried and most were found guilty by the Special Court, NIA. Najeeb was arrested later and faced a re-filed chargesheet. He approached the Special Court and the High Court for bail six times between 2015 and 2019, but was denied each time, except for the impugned order. The courts observed that there was prima facie evidence of his involvement in the crime.

The High Court of Kerala, in May 2019, granted bail to Najeeb, noting that the trial had not begun even after four years of his custody. The High Court emphasized the need for an expeditious trial under the National Investigation Agency Act, 2008, and held that the undertrial could not be kept in custody indefinitely. The Supreme Court, however, stayed this order, and Najeeb remained in judicial custody for nearly five years and five months.

Legal Framework

The case involves several key legal provisions:

• Sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(H), 201, 202, 153A, 212, 307, 149 of the Indian Penal Code, 1860 (IPC): These sections deal with offences such as unlawful assembly, rioting, criminal conspiracy, wrongful restraint, mischief, causing hurt, criminal intimidation, destruction of evidence, promoting enmity between groups, harboring offenders, and attempt to murder.
• Section 3 of the Explosive Substances Act, 1908: This section pertains to causing an explosion likely to endanger life or cause serious damage to property.
• Sections 16, 18, 18B, 19, and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA): These sections deal with offences related to terrorist acts, conspiracy, recruiting persons for terrorist acts, and being a member of a terrorist organization.
• Section 43D(5) of the UAPA: This section imposes stringent conditions for granting bail to persons accused under the UAPA. It states that “…no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Court, after hearing the Public Prosecutor, is satisfied that there are reasonable grounds for believing that the accusation against such person is prima facie true.”
• Article 21 of the Constitution of India: This article guarantees the right to life and personal liberty, which includes the right to a speedy trial.

The Supreme Court examined how these provisions interact, particularly the balance between the stringent bail conditions under UAPA and the constitutional right to a speedy trial.

Arguments

The Additional Solicitor General, representing the appellant (Union of India), argued that the High Court had erred in granting bail without considering the statutory restrictions of Section 43D(5) of the UAPA. They relied on the judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali, stating that bail proceedings under special enactments like UAPA are distinct, and courts must refuse bail if there is a prima facie belief that the accused is guilty. They further argued that Najeeb’s absconding for years indicates a legitimate apprehension of him not returning if released.

The Senior Counsel for the respondent argued that many co-accused had been acquitted and those convicted received sentences of not more than eight years. Given that Najeeb had already been in custody for almost five and a half years without the trial commencing, it would violate his constitutional rights to have him serve most of his potential sentence without any adjudication of guilt. They relied on Shaheen Welfare Association v. Union of India and Hussain v. Union of India, arguing that prolonged incarceration violates the right to a speedy trial, and constitutional courts can grant bail despite limitations under special enactments.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue that the Court addressed was:

1. Whether the High Court was justified in granting bail to the respondent, despite the restrictions under Section 43D(5) of the UAPA, given the prolonged period of incarceration without the commencement of trial.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court upheld the High Court’s decision to grant bail to K.A. Najeeb. The Court clarified that while the statutory restrictions under Section 43D(5) of the UAPA are important, they do not override the constitutional right to a speedy trial guaranteed under Article 21 of the Constitution. The Court observed that Najeeb had already spent a significant period in custody (over five years) without the trial commencing and that there was no likelihood of the trial being completed in the near future.

The Court emphasized that the stringent conditions for bail under UAPA are justified on the presumption that the trial will take place without undue delay. When such a delay occurs, the constitutional right to a speedy trial must be given due consideration. The Court also noted that Section 43D(5) of the UAPA is less stringent than Section 37 of the NDPS Act, which requires the court to be satisfied that the accused is not guilty and is unlikely to commit another offense while on bail.

The Court further stated that the restrictions under a statute and the powers exercisable under constitutional jurisdiction can be harmonized. While courts are expected to appreciate the legislative policy against the grant of bail at the commencement of proceedings, the rigours of such provisions will melt down where there is no likelihood of the trial being completed within a reasonable time, and the period of incarceration has exceeded a substantial part of the prescribed sentence.

The Court also imposed additional conditions on Najeeb’s bail, requiring him to mark his presence at the local police station every week, inform in writing that he is not involved in any new crime, and refrain from participating in any activity that might enrage communal sentiments. The Court also clarified that his bail could be cancelled if he violated any of the conditions, tampered with evidence, influenced witnesses, or hampered the trial in any way.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The authorities were viewed by the Court in the following manner:

• National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]: This case was distinguished by the Court. The Court clarified that the High Court in Watali had re-appreciated the entire evidence, which was not the case in the present matter.
• Shaheen Welfare Association v. Union of India [(1996) 2 SCC 616]: This case was relied upon to emphasize that gross delay in the disposal of cases can justify the invocation of Article 21 of the Constitution.
• Hussain v. Union of India [(2017) 5 SCC 702]: This case was relied upon to support the argument that protracted incarceration violates the right to a speedy trial.
• Puran v. Rambilas [(2001) 6 SCC 338]: This case was relied upon to distinguish between the parameters for considering a bail application and those for deciding a petition for its cancellation.
• Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118]: This case was cited in Puran v. Rambilas regarding the cancellation of bail.
• State of Bihar v. Rajballav Prasad [(2017) 2 SCC 178]: This case was relied upon to emphasize that deference must be given to the discretion exercised by superior courts in matters of bail.
• Paramjit Singh v. State (NCT of Delhi) [(1999) 9 SCC 252]: This case was relied upon to highlight that even under special legislations with stringent bail conditions, bail can be granted when there is a prolonged delay in trial.
• Babba alias Shankar Raghuman Rohida v. State of Maharashtra [(2005) 11 SCC 569]: This case was used to reiterate that bail can be granted when there is a prolonged delay in trial, even under stringent legislations.
• Umarmia alias Mamumia v. State of Gujarat [(2017) 2 SCC 731]: This case was cited to emphasize the possibility of granting bail when there is a prolonged delay in trial.
• Angela Harish Sontakke v. State of Maharashtra [SLP (Crl.) No. 6888 of 2015, Order dated 04.05.2016]: This case was cited as an example where an accused under UAPA was granted bail due to prolonged incarceration.
• Sagar Tatyaram Gorkhe v. State of Maharashtra [SLP (Crl.) No. 7947 of 2015, Order dated 03.01.2017]: This case was referred to highlight that bail can be granted when there is a prolonged delay in trial, even under UAPA.
• Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India [(1994) 6 SCC 731]: This case was relied upon to emphasize that undertrials cannot be indefinitely detained pending trial.

What weighed in the mind of the Court?

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

• Prolonged Incarceration: The fact that the respondent had been in custody for over five years without the trial commencing was a major factor. The Court emphasized that undertrials cannot be indefinitely detained.
• Right to Speedy Trial: The Court underscored the constitutional right to a speedy trial under Article 21 of the Constitution. It held that this right cannot be disregarded, especially when there is a significant delay in the trial.
• Harmonization of Statutory and Constitutional Rights: The Court sought to harmonize the statutory restrictions under UAPA with the constitutional right to a speedy trial. It held that while statutory restrictions are important, they cannot override constitutional rights.
• Less Stringent UAPA Provisions: The Court noted that Section 43D(5) of the UAPA is less stringent than Section 37 of the NDPS Act, which has more stringent conditions for bail.
• Balance between rights: The court attempted to strike a balance between the appellant’s right to lead evidence and the respondent’s rights guaranteed under Part III of the Constitution.

Logical Reasoning

Key Takeaways

• Constitutional Rights Prevail: The judgment emphasizes that constitutional rights, particularly the right to a speedy trial, cannot be overridden by statutory restrictions, especially when there is an unreasonable delay in the trial.
• Balancing Act: Courts must balance the legislative policy against granting bail in special enactments with the constitutional rights of the accused.
• Prolonged Incarceration: Undertrials cannot be kept in custody indefinitely, especially when the trial is not likely to commence in the near future.
• Less Stringent UAPA Bail Conditions: The bail conditions under UAPA are not as stringent as those under NDPS, thus allowing for more flexibility in granting bail when there is a prolonged delay.

Directions

The Supreme Court directed that besides the conditions to be imposed by the trial court, the respondent shall mark his presence every week on Monday at 10 AM at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments. The Special Court was given the liberty to cancel his bail forthwith if he violated any of the conditions, tampered with evidence, influenced witnesses, or hampered the trial.

Development of Law

The ratio decidendi of the case is that the statutory restrictions under Section 43D(5) of the UAPA do not per se oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution, particularly the right to a speedy trial. This judgment clarifies that while the legislative policy against granting bail must be considered, 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 has exceeded a substantial part of the prescribed sentence. This is a change in the previous position of law, which gave more weightage to statutory restrictions.

Conclusion

In conclusion, the Supreme Court upheld the bail granted to K.A. Najeeb by the High Court of Kerala, emphasizing the constitutional right to a speedy trial. The Court clarified that while statutory restrictions under UAPA are important, they cannot override the fundamental rights of the accused, especially when there is an unreasonable delay in the trial. This judgment sets a precedent for balancing statutory provisions with constitutional rights, particularly in cases involving prolonged incarceration of undertrials.