If Right To Speedy Trial Is Violated, Constitutional Courts Can Grant Bail Despite Statutory Restrictions : Supreme Court In UAPA Case

In a significant judgment granting bail to an undertrial prisoner facing charges under the Unlawful Activities(Prevention) Act, 1967(UAPA), the Supreme Court on Thursday (July 18) held that a constitutional court can grant bail despite statutory restrictions if it finds that the right to speedy trial under Article 21 of the Constitution has been infringed.

A bench of Justice JB Pardiwala and Justice Ujjal Bhuyan granted bail to one Sheikh Javed Iqbal on the ground of long incarceration of nine year without much progress in the trial.

“A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part”, the court held.

The court overturned an order dated April 03, 2023 passed by the Allahabad High Court denying bail to the appellant.

The judgment authored by Justice Bhuyan emphasized the right to a speedy trial under Article 21 of the Constitution.

“If the alleged offence is a serious one, it is all the more necessary for the prosecution to ensure that the trial is concluded expeditiously. When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused-undertrial on the ground that the charges are very serious. Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude”, the court observed.

As per the prosecution, the appellant, Sheikh Javed Iqbal, was apprehended on February 22, 2015 near the Indo-Nepal border with counterfeit Indian currency notes totalling Rs. 26,03,500. An FIR was lodged under Sections 121A (conspiracy to wage war), 489B (trafficking in counterfeit currency), and 489C (possession of counterfeit currency) of the IPC. Further investigation led to the inclusion of Section 16 (terrorist act) of the UAPA, and the appellant was charged accordingly.

The appellant's initial bail application was rejected by the Additional Sessions Judge, Special Judge, Lucknow, on August 24, 2016. A bail application was filed before the High Court, which was dismissed by the impugned order on April 03, 2023. The High Court cited the grave charges against the appellant and the likelihood of him absconding as he belongs to Nepal as reasons for rejecting the bail. Thus the appellant approached the Supreme Court.

The Supreme Court noted that the appellant had been in custody since February 23, 2015, and the trial is progressing slowly, with only two witnesses having been examined so far. Neither the prosecution nor the defence could provide the court with specifics about the stage of the trial or the number of witnesses yet to be examined. Given the prolonged detention and the slow pace of the trial, the court observed that the trial is unlikely to conclude soon.

Supreme Court prioritises right to speedy trial over restrictive conditions in UAPA

Section 43D of the UAPA provides that a person accused of offences under Chapters IV and VI of the UAPA cannot be released on bail without giving the public prosecutor an opportunity to be heard. Additionally, the accused cannot be released if the court, after reviewing the case diary finds the accusation prima facie true.

The Court referred to its previous rulings, including the cases of Javed Gulam Nabi Shaikh v. State of Maharashtra 2024 LiveLaw (SC) 437 and Union of India v. KA Najeeb, underscoring the necessity of balancing the seriousness of the charges with the duration of pre-trial incarceration. The Supreme Court highlighted that prolonged detention without conclusion of the trial violates the fundamental right to a speedy trial.

The Supreme Court also cited its recent judgment in Frank Vitus v. Narcotics Control Bureau involving a Nigerian appellant who remained in custody despite getting bail due to bail conditions requiring a certificate of assurance from the Nigerian High Commission and sharing his location via Google Maps. While setting these conditions aside, the Supreme Court emphasized that bail conditions must not be arbitrary or fanciful. Conditions imposed should not curtail the liberty of the accused beyond what is necessary for good administration of justice or advancing the trial process.

Given the prolonged pre-trial detention and the slow progress of the trial, the Supreme Court granted bail to the appellant. The conditions for bail include the impounding of the appellant's passport, restriction on leaving the trial court's jurisdiction, mandatory court appearances, bi-weekly police station check-ins, and a prohibition on tampering with evidence or threatening witnesses. Any violation of these conditions may result in bail cancellation, the court stated.

The Court also distinguished the recent decision in Gurwinder Singh v. State of Punjab 2024 LiveLaw (SC) 100 which held that mere delay in trial cannot be a ground for bail. The Court explained that in Gurwinder, there was substantial progress in the trial and it was in that context, that the observations in that judgment were made.

The Court also noted that it is bound by a larger bench judgment in KA Najeeb which held that prolonged incarceration is a ground for bail under UAPA.

Case no. – Criminal Appeal No. 2790 of 2024

Case Title – Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh

Citation : 2024 LiveLaw (SC) 486