TaxTMI 
TaxTMI 
2021 (2) TMI 1212
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.... considered objectionable against a particular religion by certain sections of society. The respondent in association with other members of the Popular Front of India (PFI), decided to avenge this purported act of blasphemy. On 04.07.2010 at about 8AM, a group of people with a common object, attacked the victim­professor while he was returning home with his mother and sister after attending Sunday mass at a local Church. Over the course of the attack, members of the PFI forcefully intercepted the victim's car, restrained him and chopped­off his right palm with choppers, knives, and a small axe. Country­made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the victim. An FIR was consequently lodged against the attackers by the victim­professor's wife under Sections 143, 147, 148, 120­B, 341, 427, 323, 324, 326, 506(H), 307, 149 of IPC; and Section 3 of Explosive Substances Act. 4. It emerged over the course of investigation that the attack was part of a larger conspiracy involving meticulous pre­planning, numerous failed attempts and use of dangerous weapons. Accordingly, several doz....
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....s and five months in judicial custody. CONTENTIONS 7. Learned Additional Solicitor General, for the appellant, argued that the High Court erred in granting bail without adverting to the statutory rigours of Section 43­D(5) of UAPA. Relying upon judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali(2019) 5 SCC 1, it was highlighted that bail proceedings under the special enactment were distinct and the Courts are duty­bound to refuse bail where the suspect is prima facie believed to be guilty. It was further contended that in numerous prior rounds before the Special Court and the High Court, there emerged enough reasons to believe that the respondent was, prima facie, guilty of the accusations made against him. The fact that the respondent had absconded for years was pressed into aid as legitimate apprehension of his not returning if set free. As regard to the early conclusion of trial, NIA has filed an additional affidavit suggesting to examine 276 witnesses and at the same time expecting to conduct the trial on a day­to­day basis and complete it within around a year. 8. Learned Senior Counsel appearing for the respondent, on the other hand, high....
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....s Court would normally not interfere with such a discretion, unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such a discretion are ignored or bypassed. ... There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. These material considerations are also spelled out in the aforesaid judgments viz. whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. ..." (emphasis supplied) 11. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43­D(5) of UAPA are alien to him. The High Court instead appears to have exercised 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 ad....
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....he five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43­D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of MaharashtraSLP (Crl.) No. 7947 of 2015, Order dated 03.01.2017, an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined. 15. The facts of the instant case are more egregious than these two above­cited instances. Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on 27.11.2020. Still further, two opportunities were given to the appellant­NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co­accused 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 ha....
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....visions 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. 19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected. 20. Yet another r....