'Courts Must Play Doctor & Save Rights From Demise Before They Are Extinguished': Delhi HC Grants Bail To Man Incarcerated For 12 Yrs In 2008 Serial Blasts Case

The Delhi High Court has granted bail to a man incarcerated as an undertrial for over 12 years in connection with 2008 serial blasts case after observing that Courts must play doctor and save constitutional rights from demise before they are extinguished.

Justice Anup J Bhambhani and Justice Siddharth Mridul observed thus:

"Courts must not play coroner and attend to legal or constitutional rights only after they are "dead‟. Instead we must play doctor, and save such rights from demise before they are extinguished."

"Courts should pro-actively step-in to protect such rights from being stifled and buried. If equity calls upon affected persons to be vigilant to protect their rights, then surely the courts must also be vigilant, and, to quote the Hon‟ble Supreme Court, act as sentinels on the qui vive when it comes to protecting constitutional and legal rights."

The Court granted bail to one Mohd. Hakim who was in custody since February 2009, for a period of more than 12 and half years. Hakim had impugned order dated 20.03.2021 passed by the Additional Sessions Judge, Patiala House Courts, rejecting his bail application in the matter.

The FIR involved sec. 120B, 121, 121A, 122 and 123 of the IPC; sec. 4 and 5 of the Explosive Substances Act, 1908 and sec. 16, 18 and 23 of the Unlawful Activities (Prevention) Act.

The allegations against him was that he carried a certain quantity of cycle ball-bearings from Lucknow to Delhi, which were allegedly used to make Improvised Explosive Devices (IEDs), which were employed in the series of bomb blasts that occurred in Delhi in 2008

The Court took note of the fact that Hakim had spent more than 12 years in custody as an undertrial and that 256 witnesses had been examined over the years, however 60 prosecution witnesses still remained to be examined. 

Replying on plethora of judgments on UAPA, the Court said:

"Regardless of how much longer the trial may take hereafter, the incarceration of more than 12 years suffered by the appellant in custody as an undertrial would certainly qualify as a long enough period for the system to acknowledge that the appellant‟s right to speedy trial continues to be defeated." 

On the State's submission that since Hakim was charged with an offence under sec. 16 of UAPA, the Court must proceed on the assumption that he may be meted-out the death penalty, the Bench said that the said submission was purely an assumption.

Importantly, the Court said:

"The two contrary assumptions are : first, what if the appellant is acquitted. In the event of acquittal, how would the State compensate the appellant for having been robbed of what may have been the most productive and defining decade of his life, at the State‟s instance? Second, even assuming the appellant is ultimately convicted but sentenced to life imprisonment, how would the State compensate him for having negated his entitlement to bail under section 436A Cr.P.C. read with section 57 IPC? We are sure the State has not delved into these contrary assumptions."

Observing that Hakim had undergone punishment for more than a decade of his life, for an alleged offence for which he had not yet been found guilty, the Court said that he had made-out a case that his right to speedy trial was being defeated and would continue to be violated if he was not enlarged on bail, having already spent more than 12 years in custody as an undertrial.

"In the present case, if the State plans to seek the capital sentence for the appellant, it is therefore all the more necessary that the appellant be afforded a speedy trial; failing which, the appellant deserves at least to be given back his liberty after more than 12 long years of imprisonment as an undertrial, since it cannot be ignored that as of now, the appellant has undergone punishment for more than a decade of his life, for an alleged offence for which he has not yet been found guilty," the Court said.

Accordingly, bail was granted by the Court.

Title: Mohd. Hakim v. State

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