Breaking-Violation Of Fundamental Right To Speedy Trial Is A Ground For Constitutional Court To Grant Bail In UAPA Cases: Supreme Court

The Supreme Court has held that Section 43­D (5) of UAPA per­ se does not oust the ability of Constitutional Courts to grant bail on ground of violation of Fundamental Right to Speedy Trial.

The bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose also observed that the rigours of the provision will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

The court observed thus while dismissing the appeal filed by National Investigation Agency against the Kerala High Court order granting bail to the accused in palm chopping of Thodupuzha Newman College professor T J Joseph in 2011. NIA's contention was that the High Court erred in granting bail without adverting to the statutory rigours of Section 43­D(5) of UAPA. [This case relates to the incident in which a seven-member gang chopped off the right palm of a college professor, T J Joseph, while he was returning home from Sunday Mass at 8am on July 4, 2010. This happened after the professor allegedly insulted Prophet Mohammed in a question paper prepared by him for an internal examination conducted by the Malayalam department of the Newman College at Thodupuzha..]

The court noted that, in this case, the High Court invoked its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43­D (5) of UAPA, the court observed. Referring to various judgment, the court observed:

The presence of statutory restrictions like Section 43­D (5) of UAPA per ­se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

The judgment refers to the decision in Shaheen Welfare Association v Union of India (1996) 2 SCC 616, in which it was held that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrials on bail. 

Watali Judgment

The bench explained the judgment in Watali case, which was relied by NIA to challenge the High Court judgment. It said:

 As regard to the judgment in NIA v. Zahoor Ahmad Shah Watali (supra), cited by learned ASG, we find that it dealt with an entirely different factual matrix. In that case, the High Court had reappreciated the entire evidence on record to overturn the Special Court's conclusion of their being a prima facie case of conviction and concomitant rejection of bail. The High Court had practically conducted a mini­trial and determined admissibility of certain evidences, which exceeded the limited scope of a bail petition. This not only was beyond the statutory mandate of a prima facie assessment under Section 43­D(5), but it was premature and possibly would have prejudiced the trial itself. It was in these circumstances that this Court intervened and cancelled the bail.

The court also noted that the accused has been in jail for more than five years, and that there are 276 witnesses left to be examined. and the charges have been framed only on 27.11.2020. It further noted:

"Still further, two opportunities were given to the appellant ­NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co­-accused who have been convicted, none have been given a sentence of more than eight years' rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two­third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice."

The court, while upholding the High Court order, imposed the following additional conditions:

"Accused shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments."

CASE: Union of India vs. K.A. Najeeb  [CRIMINAL APPEAL NO. 98 of 2021]

CORAM: Justices NV Ramana, Surya Kant and Aniruddha Bose

CITATION: LL 2021 SC 56

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