UAPA - Watali Judgment Won't Apply When Bail Is Sought On Humanitarian Grounds : Bombay High Court

Granting temporary bail to Bhima Koregaon – Elgar Parishad accused Advocate Surendra Gadling, the Bombay High Court observed that the rigors of regular bail under the Unlawful Activities (Prevention) Act would not apply for the grant of temporary bail on humanitarian grounds.

Therefore, the judgement in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali could not be used to oppose bail being sought purely on humanitarian grounds on the death of a parent, the court said.

A division bench of Justices SS Shinde and NJ Jamadar granted Gadling bail for nine days, from August 13-21, to perform his mother's funeral rites on her first death anniversary on humanitarian grounds.

Gadling had approached the High Court in an appeal under Section 21 (4) of the NIA Act challenging Special Judge DE Kothalikar's order from September 2020, refusing him emergency bail.

"From the perusal of the impugned order, it does not appear that the NIA Court approached the issue from the perspective of humanitarian consideration. In our view, the NIA Court misdirected itself in importing the considerations which bear upon grant of regular bail to a prayer for release on humanitarian ground. Reliance placed on behalf of the respondent-NIA on the judgment in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali, which governs the grant of a regular bail, therefore, does not seem well founded in the context of the consideration of the prayer for temporary bail to participate in the last rites/rituals of the deceased mother of the appellant."

The court rejected NIA's submission that Gadling's cause does not survive in an appeal u/s 21 of the NIA Act, as his mother passed away last year.

"On a humane consideration, which the circumstances of the case and the nature of the prayer warrant, the said objection appears untenable…It was not the prayer of the appellant that he should be released to attend the funeral of his deceased mother. The specific prayer was to release him so that he can join his family in performing the rituals. From this stand point, the claim of the appellant that the rites, rituals and condolence meeting, which have been kept in abeyance, are to be performed and held on the first death anniversary of his mother, cannot be said to be impracticable or untenable."

The bench added that Gadling's prayers were not unjustified.

"In the prevailing social construct, the first death anniversary of an immediate family member has an element of religious, personal and emotional significance. Admittedly, the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism, we do not find the prayer of the appellant unjustifiable."

Accepting Senior Advocate Indira Jaising's arguments that Gadling was a practising advocate before he came to be arrested on 6th June 2018 and stayed in Pune after his house was searched, the court said.

"These submissions carry substance. Having regard to the situation in life of the appellant, as borne out by the record, we do not find that there is reasonable ground to believe that the appellant may abscond."

Conditions for bail

Furnishing a PR bond in the sum of Rs. 50,000/-, with one or two sureties in the like amount, to the satisfaction of the learned Special Judge, NIA Court.

Furnish details of travel from Mumbai to Nagpur to SP NIA, Mumbai.

The appellant shall intimate the jurisdictional police station the date and time of his arrival at Nagpur immediately after reaching Nagpur.

The appellant shall mark his presence at the jurisdictional police station on 16th August 2021 and 19th August 2021 at 10:00 a.m.

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