UAPA | Wrong To Say Bail Cannot Be Granted Under A Particular Statute : Supreme Court Distinguishes 'Gurwinder Singh' Judgment

It would be wrong to say that under a particular statute, bail cannot be granted, observed the Supreme Court while granting bail to a man accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

While doing so, the Court distinguished the recent judgment in Gurwinder Singh v. State of Punjab.

In Gurwinder Singh, the Supreme Court had observed that jail is the rule and bail the exception in UAPA cases. Further, while denying bail to a man charged under the UAPA for allegedly promoting Khalistani terror movement, the court had held that mere delay in trial is no ground to grant bail in grave offences.

A bench of Justice JB Pardiwala and Justice Ujjal Bhuyan granted bail to the appellant on the ground of long incarceration of nine years with little progress in the trial, observing that statutory restrictions cannot stop the constitutional court from granting bail if right of the accused under Article 21 is violated.

"In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us", the court observed.

The prosecution opposed grant of bail citing the case of Gurwinder Singh, contending that the appellant is an accused under the UAPA and is, therefore, not entitled to bail.

In Gurwinder Singh, a two-judge bench of the Supreme Court had distinguished it from the case of Union of India v. KA Najeeb, which was decided by a three-judge bench. The two-judge bench had observed that Najeeb's trial was separated from rest of the accused whose trial and were awarded imprisonment of eight years. The court took into account the fact that he had already undergone a major portion of the maximum imprisonment.

The trial of Gurwinder Singh was already underway, and twenty-two witnesses had been examined, the two-judge bench had noted, observing that mere delay in trial would not entitle a UAPA accused to bail.

However, in the present case, the court relied heavily relied on KA Najeeb's case, stating that being a three-judge judgment, it was binding on the present two judge bench.

In KA Najeeb, the court had observed that section 43D(5) of the UAPA is less stringent than section 37 of the NDPS Act, adding that while statutory restrictions on bail are significant, they must not overshadow constitutional rights. The court had held that while serious charges warrant caution, an undertrial's prolonged incarceration and the unlikelihood of a timely trial completion are valid grounds for granting bail, ensuring a balance between legal provisions and fundamental rights.

The Supreme Court in the present case emphasized the fundamental right to life and personal liberty under Article 21 of the Constitution. The Court underscored that prolonged incarceration without a speedy trial violates these rights.

The Court held that despite the seriousness of the charges, the slow progress of the trial with only two witnesses examined over nine years of detention weighed heavily in favour of granting bail.

Background –

Appellant Sheikh Javed Iqbal was apprehended on February 22, 2015, near the Indo-Nepal border in possession of counterfeit Indian currency totalling Rs. 26,03,500. Initially charged under Sections 121A, 489B, and 489C of the IPC, subsequent investigation led to the inclusion of Section 16 of the UAPA, accusing him of terrorist activities. The prosecution alleged that Iqbal confessed to his involvement in the illegal trade of counterfeit currency.

The Additional Sessions Judge, Special Judge, Lucknow, denied bail on August 24, 2016. Subsequently, the Allahabad High Court upheld the denial citing the seriousness of the charges and the appellant's foreign nationality as reasons for denying bail. Thus, he approached the Supreme Court.

Case no. – Criminal Appeal No. 2790 of 2024

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

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