Verdict In 'KA Najeeb' Upholding Right Of UAPA Accused For Bail On Ground Of Delay In Trial Not Disturbed By 'Gurwinder Singh' Judgment: Supreme Court

It may be recalled that K.A. Najeeb's case was pronounced by a three-judge bench comprising Justices NV Ramana, Surya Kant, and Aniruddha Bose. The case was marked as a relief for the accused under the Unlawful Activities Prevention Act 1967 (UAPA). Therein, the Court held that the constitutional courts could grant bail to individuals accused under the UAPA, notwithstanding the statutory embargo on the grant of bail created by Section 43­D (5) of UAPA. This was done to protect the accused's right to a speedy trial guaranteed under Article 21 of the Constitution.

However, (on February 08), the Division bench of the Supreme Court held that mere delay in trial is no ground to grant bail in grave offences (Gurwinder Singh's Case). The Bench of Justices MM Sundresh and Aravind Kumar distinguished KA Najeeb by pointing out that Najeeb's trial was separated from the rest of the accused. The trial was completed with respect to the other accused, who were awarded sentences of imprisonment not exceeding eight years. Considering that Najeeb had already undergone imprisonment of more than five years, the Court had granted bail. 

Thus, even though Gurwinder Singh, the accused, had been in custody for five years, the Court declined his bail plea after noting that the trial was already underway and 22 witnesses had been examined. Pertinently, the Court had also noted that the accusations against the accused are prima facie true.

With this background in place, it may be noted that in the Shoma Sen case, the Supreme Court made the position of law regarding this clear. The Court in no uncertain terms had stated that though Gurwinder Singh's case was distinguished from the K. A. Najeeb case and the prayer of bail was rejected, this would not “dislocate” the ration laid down in the latter case.

The bench of Justices Aniruddha Bose and Augustine George Masih made these findings while granting bail to former Nagpur University professor Shoma Sen in the Bhima Koregaon case. This significant judgment, which ran through around fifty pages, was authored by Justice Bose.  

Notably, ASG KM Natraj, who opposed Sen's bail plea on behalf of the National Investigative Authority, relied upon Gurwinder Singh's Case. Upon placing this decision, ASG argued that “bail is not a fundamental right.”

However, the Court strongly refuted the same, which underlined the accused's right to bail derived from Article 21 of the Indian Constitution. To quote the Judgment:

“We do not accept the first part of this submission. This Court has already accepted right of an accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India.”

Moving forward, the Court added: "He cited the case of Gurwinder Singh (supra) in which the judgement of K. A. Najeeb (supra) was distinguished on facts and a judgment of the High Court rejecting the prayer for bail of the appellant was upheld. But this was a judgment in the given facts of that case and did not dislocate the axis of reasoning on constitutional ground enunciated in the case of Najeeb (supra)."

While the Court stressed the importance of pre-conviction detention in order to collect evidence, in tandem, the Court also marked that the deprival of liberty will result in the breach of this Article. Thus, the Court opined that such deprival must be proportionate in the facts of a given case.

“any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post-chargesheet stage.,” the judgment stated. 

Also read: No Ground To Believe Accusations Against Shoma Sen Are Prima Facie True : Supreme Court In Bhima Koregaon Case

Supreme Court Grants Bail To Shoma Sen In Bhima Koregaon Case

Case Details: Shoma Kanti Sen v. State of Maharashtra & Anr. | Special Leave Petition (Criminal) No. 4999 of 2023

Citation: 2024 LiveLaw (SC) 280

Click here to read the judgment