TaxTMI 
TaxTMI 
2021 (10) TMI 1414
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...., 122 and 123 of the Indian Penal Code, 1860 ('IPC'), sections 4 and 5 of the Explosive Substances Act, 1908 and sections 16, 18 and 23 of the Unlawful Activities (Prevention) Act, 1967 ('UAPA'). 3. The appellant has filed written submissions dated 22.07.2021 as also a short summary of arguments dated 05.08.2021; and the State has filed status report dated 25.05.2021, setting-out their respective contentions in the matter. Appellant's Submissions 4. Ms. Nitya Ramakrishnan, learned Senior Counsel appearing on behalf of the appellant has made the following principal submissions before this court: (a) That there are some 16 accused persons in the FIR and in the chargesheet and supplementary chargesheets filed in the cases, but a perusal of the chargesheet filed by the Special Cell, Delhi Police on 27.02.2009 and the charges framed by the learned ASJ on 06.05.2011, only a limited role has been ascribed to the appellant in the offences alleged, namely, that he had carried a certain quantity of cycle ball-bearings from Lucknow to Delhi, which, according to the allegations, were subsequently used to make Improvised Explosive Devices (IEDs), which were employed in ....
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....ant deserves to be released on regular bail during the pendency of the trial; and (f) That at the relevant time the appellant was a university student; that he has no criminal antecedents; he is not implicated in any other criminal case; and is not required for any other investigation. Respondent's Submissions 5. Opposing the grant of regular bail, Mr. Amit Chaddha, learned Additional Public Prosecutor appearing on behalf of the State/N.I.A. has submitted as follows: (a) That the offences with which the appellant is charged are grave and heinous, concerning the serial bomb blasts that occurred in different places in Delhi on 13.09.2008, in which some 26 people died and 135 were injured, and the responsibility for such serial blasts was taken by a terrorist outfit called 'Indian Mujahideen'; (b) That in connection with the serial bomb blasts, 05 FIRs were registered at various police stations; and in fact, in subsequent raids conducted by the Special Cell of the Delhi Police at certain premises in Batla House, Delhi to apprehend suspected militants, 02 police officers sustained injuries; 01 inspector of the Delhi Police died; and a cache of arms and ammunition wa....
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....siderations for disposal of the present appeal are the following: (a) The specific charge framed against the appellant by the learned ASJ on 06.05.2011, reads as under: "you accused Mohd. Hakim (A-8) brought cycle steel ball bearings from Lucknow to Delhi in between 8 to 12 September, 2008 for making IEDs," The appellant has been charged with the above role in the context of the offence of criminal conspiracy under section 120B IPC; (b) The charge framed against the appellant vide order dated 06.05.2011 aforesaid has not been challenged, either by way of the present appeal or otherwise, neither by the appellant nor by the State; (c) Though stressing that the appellant has been charged with the offence of criminal conspiracy under section 120B IPC in the context of an alleged conspiracy to wage war against the Government of India by causing serial bomb blasts in various cities, including the capital, as envisaged under sections 121 and 121A IPC, the State has not drawn our attention to, nor have we been able to discern any specific or particularised allegation against the appellant in the chargesheet or in the order framing charge that could relate to the offences under se....
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...., that this provision would not be of aid to an undertrial who has undergone imprisonment of more than half of the maximum period of imprisonment, which is completely contrary to the intent and purpose of the provision. 7. In the opinion of this court, there are two separate approaches to considering the grant or denial of bail in cases where the UAPA applies. 8. One approach, is for the court to apply the provisions of section 43-D(5) of the UAPA, as interpreted by the Hon'ble Supreme Court in Watali (supra). 9. The second approach is, for the court to draw upon the principles relating to right to a fair trial read into Article 21 of the Constitution, as explained by the Hon'ble Supreme Court in K.A. Najeeb (supra) notwithstanding the general considerations for bail under the Cr.P.C. and the additional conditions engrafted under the UAPA. 10. In the present case, considering that the charge framed against the appellant has not been challenged, neither by the appellant nor even by the State, in our view, the enquiry under Article 21 would come into play notwithstanding the provisions of section 43D(5) of UAPA in light of the dictum in K.A. Najeeb (supra), since an opini....
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....e well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc." (emphasis supplied) 15. It is also important to briefly note the factual background and conduct of the accused in K.A. Najeeb (supra), which may be gathered from the following observations of the Kerala High Court in its judgment that subsequently came-up before the Hon'ble Supreme Court: KA Najeeb vs. Union of India: Crl.M.A. 34/2019 in Crl.A. 659/2019 decided on 23.07.2019 by the Kerala High Court: " .... This appeal is filed by the 5th accused in SC No. 1/2015 of the Special Court for the Trial of NIA Cases, Ernakulam challenging order dated 17/4/2019 in Crr.M.P. No. 34/2019. Application is filed by the filed by the 5th accused/appellant seeking bail. The Special Court found that materials produced by the prosecution clearly reveal that, the petitioner had a major role in the criminal conspiracy. Along with the 3rd accused M.K. Nasar, petitioner was involved in the conspiracy of arranging a vehicle and also had role in other activities like dropping the accused persons at the scene o....
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....sses had already been examined when other accused in the case faced trial and even at that stage, several of them had turned hostile to the prosecution." (emphasis supplied) 16. Though the appellant has placed reliance essentially on K.A Najeeb (supra), judicial decisions on the right to speedy trial and the grant of bail upon considerations of Article 21, date back much earlier, wherein our courts have consistently emphasized on the significance of speedy trial and the consequences of its denial. Reference to some of those decisions would be in order at this point, since they discuss the law on this point in all its facets. 17. One of the earliest expositions of the necessity and concept of speedy trial is found in the seminal judgment of a 3-Judge Bench of the Hon'ble Supreme Court in Hussainara Khatoon (I) vs. Home Secretary, State of Bihar (1980) 1 SCC 81, where the Hon'ble Supreme Court deprecated the delay in commencement of trials, which would apply equally to long pendency of trials; and observed how "unnecessarily prolonged detention in prison of undertrials before being brought to trial, is an affront to all civilised norms of human liberty". Justice P.N. Bhag....
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....it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21. That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. ." (emphasis supplied) In the opening paragraph of his concurring opinion in the case Justice R.S. Pathak (as he then was) said: "It is indisputable that an unnecessarily prolonged detention in prison of undertrials before being brought to trial is an affront to all civilised norm....
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.... by the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569: 1994 SCC (Cri.) 899]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225: 1992 SCC (Cri.) 93], release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered ....
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....its stages including investigation, inquiry, trial, appeal, revision and retrial--in short everything commencing with an accusation and expiring with the final verdict--the two being respectively the terminus a quo and terminus ad quem--of the journey which an accused must necessarily undertake once faced with an implication. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far-off peak. Myriad fact situations bearing testimony to denial of such fundamental right to the accused persons, on account of failure on the part of prosecuting agencies and the executive to act, and their turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate of Article 21 of the Constitution have persuaded this Court in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold. In its zeal to protect the right to speedy trial of an accused, can the court devise and almost enact such bars of limitation though the legislature and the ....
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....teed by the Constitution. The submissions made by proponents included that the right to speedy trial flowing from Article 21 to be meaningful, enforceable and effective ought to be accompanied by an outer limit beyond which continuance of the proceedings will be violative of Article 21. It was submitted that Section 468 of the Code of Criminal Procedure applied only to minor offences but the court should extend the same principle to major offences as well. It was also urged that a period of 10 years calculated from the date of registration of crime should be placed as an outer limit wherein shall be counted the time taken by the investigation. "9. The Constitution Bench, in A.R. Antulay case [(1992) 1 SCC 225: 1992 SCC (Cri.) 93], heard elaborate arguments. The Court, in its pronouncement, formulated certain propositions, 11 in number, meant to serve as guidelines. It is not necessary for our purpose to reproduce all those propositions. Suffice it to state that in the opinion of the Constitution Bench (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Artic....
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....nial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis." "10. During the course of its judgment also, the Constitution Bench made certain observations which need to be extracted and reproduced: "83. But then speedy trial or other expressions conveying the said concept--are necessarily relative in nature. One may ask--speedy means, how speedy? How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind. it is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit....
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....s of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay case [(1992) 1 SCC 225: 1992 SCC (Cri.) 93] referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted. * * * * * "28. We have in the earlier part of this judgment extracted and reproduced passages from A.R. Antulay case [(1992) 1 SCC 225: 1992 SCC (Cri.) 93]. The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal proceeding or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix any time-limit for trial of offences. Having placed on record the exposition of law as ....
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....se [(1992) 1 SCC 225: 1992 SCC (Cri.) 93] is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay case [(1992) 1 SCC 225: 1992 SCC (Cri.) 93] adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay case [(1992) 1 SCC 225: 1992 SCC (Cri.) 93] are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I) [(1996) 4 SCC 33: 1996 SCC (Cri.) 589], Raj Deo Sharma (I) [(1998) 7 SCC 507: 1998 SCC (Cri.) 1692] and Raj Deo Sharma (II) [(1999) 7 SCC 604: 1999 SCC (Cri.) 1324] could not have been so prescribed or....
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....hever stage before any authority or the court. It is the constitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the preamble of the Constitution as also from the directive principles of State policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction of strengthening the justice delivery system. We need to remind all concerned of what was said by this Court in Hussainara Khatoon (IV) [Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98: 1980 SCC (Cri.) 40]: The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, 'the law does not permit any Government to deprive its citizens of c....
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.... of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. "40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. * * * * * * "42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained....
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....und of his incarceration for about 12 years, and said: " .............This appeal is filed against the judgment dated 16-6-2010 in Criminal Misc. Sr. No. 44 of 2010 by which the Court of Designated Judge (TADA) at Porbandar (hereinafter referred to as "the Designated Court") rejected the bail application filed by the appellant under Section 439 Cr.P.C. and Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "the Act"). Crime No. I-43 of 1994 was registered under Section 154 Cr.P.C. for the offences committed under Sections 121, 121-A, 122, 123, 124-B read with Section 34 of the Penal Code, 1860, Sections 25(1-A), (1-B) and 25(1-AA) of the Arms Act, Section 9-B of the Explosives Act, Sections 3, 4, 5 and6 of the Explosive Substances Act and Sections 3, 4 and 5 of the Act. "2. The statement of one Suresh recorded under Section 108 of the Customs Act revealed that explosive substances, powder RDX boxes, bags containing firearms, 45 bags of weapons, 15 boxes of RDX and 225 pieces of silver ingots were smuggled into the country and taken to Zaroli and Dhanoli Villages of Valsad District. The first charge-sheet was filed on 12-1....
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.... * * * * * *" (emphasis supplied) Again in Angela Harish Sontakke vs. State of Maharashtra (2021) 3 SCC 723, the Hon'ble Supreme Court said: "2. Leave granted. We have heard the learned counsel for the parties. Charges have been framed against the appellant-accused under Sections 10, 13, 17, 18, 18-A, 18-B, 20, 21, 38, 39 and 40(2) of the Unlawful Activities (Prevention) Act, 1967, amended 2008 and Sections 387, 419, 465, 467, 468, 471 read with Section 120-B of the Penal Code, 1860. Undoubtedly, the charges are serious but the seriousness of the charges will have to be balanced with certain other facts like the period of custody suffered and the likely period within which the trial can be expected to be completed. "3. The appellant-accused has been in custody since April 2011 i.e. for over five years. The trial is yet to commence inasmuch as the learned State Counsel has submitted that 9-5-2016 is the first date fixed for the trial. There are over 200 witnesses proposed to be examined. The appellant-accused is a lady. She has also been acquitted of similar charges levelled against her in other cases. Taking into account all the aforesaid facts we are of the view that ....
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....evention) Act : Sections 18, 18(A), 18(B), 20, 38 and 39 About 4 years Life Imprisonment 4. Lt. Col Prasad Shrikant Purohit vs State of Maharashtra (2018) 11 SCC 458 Unlawful Activities (Prevention) Act : Sections 15, 16, 17, 18, 20 & 23 Indian Penal Code : Sections 302, 307, 326, 324, 427, 153- A and 120-B Explosive Substances Act : Sections 3, 4, 6 8 years 8 months Death 5. Urmarmia vs State of Gujarat (2017) 2 SCC 752 TADA: Sections 3, 4, 5 Explosive Substances Act: Sections 3, 4, 5, 6, 9B Indian Penal Code: Sections 121, 121A, 122, 123, 124B r/w 34 Arms Act : Sections 25(1A), (1B) and 25(1AA) Incarcerated for 12 years, Absconded for 10 years Death/Life Imprisonment 6. Angela Harish Sontakke vs State of Maharashtra 2016 SCC Online SC 1910 Unlawful Activities (Prevention) Act : Sections 10, 13, 17, 18, 18-A, 18-B, 20, 21, 38, 39, 40(2) Indian Penal Code : Sections 387, 419, 465, 467, 468, 471 Over 5 years Taken into custody on April 2011, Life Imprisonment 7. State of Kerala vs Raneef (2011) 1 SCC 784 Indian Penal Code : Sections 143, 147, 148, 120 B, 323, 324, 326. 341, 427, 506 (ii), 307, 153 (A), 201, 202 and 212 read with 149 Unlawful Activitie....
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....ppellant's right to speedy trial continues to be defeated. 27. A reminder of the foundational principles of bail, in the masterful words of the apotheosis of jurisprudence, Justice V.R. Krishna Iyer, is never out of place. In Gudikanti Narasimhulu and Ors. vs. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240 as upheld in a subsequent decision in Babu Singh & Ors. vs. State of U.P. (1978) 1 SCC 579, the Hon'ble Supreme Court said in the opening para: ""Bail or jail?"--at the pre-trial or post-conviction stage--belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on ....
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....;rarest of rare' cases, capital punishment can never be treated as the default punishment, and even for the most heinous offences it can never be assumed that an accused is most likely to be awarded the death sentence. It would be completely illogical to presume that what is mandated to be done in the 'rarest of rare' cases would 'most likely be done in a given case. 31. It is also necessary to enunciate another important aspect of the matter, which is that where a person is charged with an offence which potentially carries a death sentence, it is all the more important to ensure a speedy trial so as to bring the offender, who is charged with a heinous crime, to justice, at the earliest. 32. There is another way to address the State's submission that since the appellant is charged with an offence under section 16 of UAPA, the court must proceed on the assumption that he may be meted-out the death penalty. For one, this submission is purely an assumption. Besides, if it wishes to canvass this one assumption, the State must address at least two contrary assumptions to test if the State's assumption deserves to form the basis of a decision, at this stage. The....