|(2021) 3 SCC 713
|DATE OF JUDGEMENT
|1 FEB 2021
|Supreme Court of India
|Union of India
|N.V. Ramana, Surya Kant and Aniruddha Bose, JJ
In the landmark judgement of Union of India vs K.A. Najeeb, the court granted bail to the accused charged under the Unlawful Activities (Prevention) Act UAPA which was uncommon until then.
The Kerala High Court granted the bail on the ground that trial was yet to begin but the NIA filed an SLP in the Supreme Court claiming that the High Court has mistaken in granting the bail and highlighted that bail provision related to UAPA being a special provision were distinct moreover section 43 D (5) prohibits bail for UAPA offences.
The Supreme Court in its final ruling upheld the decision taken by the high court and gave reasoning that granting bail was necessary in order to protect the respondent’s rights guaranteed under part 3 of the Indian Constitution.
FACTS OF THE CASE
- K.A. Najeeb (now onwards referred as accused) one the active members of the extremist group PFI was involved in the alleged incident of pre-planned attack on the Professor TJ Joseph (herein after victim) of the Newman college in 2010.
- The victim while framing a question paper for the second semester B. Com examination included a question which was considered objectionable and against a specific religion by certain sections of society.
- The accused along with other members decided to take revenge.
- On 04.07.2010 while the victim was returning home along with his mother and sister, a group of men with a common object attacked the victim by using force stopped his car, arrested him and chopped off his right palm with choppers, knives and a small axe.
- In order to create panic and terror among the bystanders and prevent them for rescuing the victim homemade bombs were also thrown.
- Victims’ wife lodged FIR against the attackers under sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(H), 307and 149 of IPC.
- On investigation it came out that the attack was a part of a larger conspiracy, it was alleged that the accused was one of the main conspirators thus, UAPA was invoked against him.
- Najeeb being untraceable was declared absconder while the rest co-conspirators were sentenced 2 to 8 years of rigorous imprisonment.
- Later, the accused was arrested and was imprisoned for almost 5 years without any trial.
- The accused approached the Special Court and the High Court almost six times between 2015 and 2019 on the ground of his limited role and equality with other co-accused.
- The court rejected the plea on the ground of him having the special knowledge of attack and his conduct of abetting and aiding the members.
- The accused reached the High Court for the third time in May, 2019 challenging the order of the special court denying bail.
- High court granted the bail on the ground that undertrial accused should not be kept behind the bars for so long.
- NIA appealed in the Supreme Court regarding the bail order given by the High court and said court has been in error with its jurisdiction.
- Hence, the Supreme Court released the accused on bail.
- Whether bail can be granted to the accused charged under UAPA?
- Is High Court empowered to grant bail to the accused charged under the provisions of anti-terror laws?
- Is it possible for the same court to cancel bail once granted?
CONTENTIONS OF APPEALENT
- Relying on the judgement NIA vs. Zahoor Ahmed Shah Watali the learned counsel of appellant Additional Solicitor General argued that High Court’s decision to grant bail was not correct as it failed to consider the statutory provisions of Section 43-D (5) of the UAPA.
- It was also highlighted that bail proceedings differ in general cases and cases related to anti-terror laws.
- He also put forward the claim that accused absconded for a long-time giving birth to a legitimate concern that the accused will not return on bail and also highlighting that the accused was prima facie guilty.
CONTENTIONS OF RESPONDENT
- Many co-accused have been acquitted but few have been convicted as well, but the those convicted have been sentenced not more than eight years.
- The accused has already spent five and a half years in jail even before the trial started.
- This will violate his constitutional rights mentioned under part 3 of the constitution.
- Once High Court has granted bail by using its discretion then later it should not be interfered with.
- It was also argued that the cases which involve violation of right to speedy trial and access to justice in such cases constitutional courts have power to grant bail regardless of the provisions of the statute.
The court granted bail to the accused charged under the UAPA on the ground that it is necessary to create a balance between the appellant’s right to present evidence to prove the charges and the respondent’s rights guaranteed under Part III of the Constitution.
Court emphasised on the point that in case of breach of fundamental rights or the other rights mentioned in the Indian constitution it has the power to grant bail irrespective of the statute under which the accused is booked.
In the present case though, the NIA clearly declared the accused guilty and invoked section 43 D (5) to deny bail, the court can still grant bail if accused fundamental rights are violated.
Furthermore, Section 43D (5) does not impose any precondition to prevent the accused from committing another crime, and it seems to be used as a means to delay bail. Therefore, the Supreme Court upheld the High Court’s decision and deemed the special leave petition as unmaintainable.
It must be understood that there is vivid ground to be seen before considering the bail application.
At the time of decision in bail cases proper reason should be given and it is necessary to record the same.
Bail granted by the trial court can be cancelled by the same court only on the event of new circumstances being added up.
Further, the presence of statutory restrictions like Section 43-D (5) of UAPA in particular does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.
If timely trial is not possible and the accused has already been imprisoned for a sufficient long period of time then court would naturally be obliged to grant them bail.
Granting bail to the accused in order to protect his rights mentioned in part 3 of the constitution is relevant and specially in cases where the accused has already been put behind the bars without trial but more than that the restrictions imposed by the Supreme Court is must as in this case certain conditions have been imposed that Najeeb 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. He shall also refrain from participating in any activity which might enrage communal sentiments.
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