System Paralyzed Due To Pandemic; Accused Languishing In Jail : Bombay High Court

A division bench led by Justice SS Shinde observed that they had come across cases where under-trials have completed their possible sentence, and trials still hadn't started. The court cited the Bhima Koregaon – Elgar Parishad 2018 case and the Malegaon 2006 serial blasts case, where even the charges were yet to be framed.

On Wednesday, the court reserved orders on Iqbal Ahmed Kabir Ahmed's 2019 bail application after hearing arguments canvassed by Public Prosecutor Aruna Pai for the National Investigation Agency (NIA) and Senior Advocate Mihir Desai along with advocates Shahid Nadeem and Kritika Aggarwal for the petitioner.

Ahmed said that he satisfies the test under section 43D(5) of the UA(P)A for grant of bail as the material against him could not be said to be prima facie true and that the trial was not likely to be soon.

"For number of reasons, if the accused is in jail, then the perception is that trial does not start for long. In some cases, they (under-trials) have completed the 10-year sentence, but even then trial had not started…The system due to the pandemic is paralysed,the cumulative effect is that accused are languishing in jail. Despite best efforts, it is just not possible for the trial to get over. That is a reality. Elgar Parishad case, charges are yet to be framed, just as in the Malegaon trial," the bench observed at different points during the hearing on Wednesday.

In the case being heard by the bench, the prosecution has accused four of planning an attack on the Maharashtra Anti-Terrorism Squad's (ATS) Aurangabad Unit. Arrested in 2016, the accused were booked under several sections of the IPC for conspiracy and of the UAPA.

The prosecution relied heavily on co-accused Chaus's disclosure memorandum in which he allegedly said the four of them wanted to join ISIS since April 2015, and they were discussing making a bomb. They also allegedly collected substances to make a circuit and prepared an 'oath document' praying allegiance to ISIS.

In his bail application, Ahmed said there is nothing against him except for an inadmissible confession statement of a co-accused. The authenticity of the undated and unsigned oath document is questionable, he added. Moreover, his name suddenly popped up in the investigation after 25 days.

Desai argued that the charge sheet failed to show his involvement in making any explosive. Moreover, he can't be accused of propagating ISIS ideology just by discussing world politics in an open ground. "There is no rule that they cannot discuss," he said.

Desai said that Ahmed could be released on bail just like Areeb Majeed, a youth from Kalyan, accused of joining the ISIS. The bench led by Justice Shinde had upheld his bail earlier this year, observing that the trial was not likely to be completed soon.

Pai, for the NIA, relied heavily on the 2019 judgement in Zahoor Ahmad Shah Watali's case. She submitted that the trial may be expedited as there were serious allegations and incriminating material against Ahmed. She, however, conceded that the case cannot be heard on a day-to-day basis.