TaxTMI 
TaxTMI 
2021 (10) TMI 1414
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....e referred FIRs inter alia registered under sections 120B, 121, 121A, 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 subse....
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....ht to a speedy trial, as read into Article 21 of the Constitution of India, is being violated; and the appellant 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 su....
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....on 21(4) of the N.I.A. Act. Discussion 6. After giving our careful and anxious consideration to the submissions made on behalf of the appellant and the State, in our view, the relevant considerations 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, th....
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....one-half of the maximum period of imprisonment ...", which, if applied literally, would mean that an undertrial should have undergone any period of detention of less than half of the maximum sentence, to be entitled to bail; and, as a sequitur, 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....
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....prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre-condition under the UAPA. Instead, Section 43-D(5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the 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 materi....
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...., we are of the view that the accused should be released on bail. Learned Special Prosecutor, however would contend that if the accused is released on bail, he will continue his nefarious activities and try to instigate others in carrying out their anti-social schemes and may also influence the witnesses. Most of the witnesses 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 (....
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....enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and 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 sha....
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.... Constitution. We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act 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 wi....
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....ense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all 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....
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....3] exposition of Article 21 would remain a mere illusion and a platitude. Invoking of the constitutional jurisdiction of this Court so as to judicially forge two termini and lay down periods of limitation applicable like a mathematical formula, beyond which a trial or criminal proceeding shall not proceed, was resisted by the opponents submitting that the right to speedy trial was an amorphous one, something less than other fundamental rights guaranteed 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....
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....right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment Nor do we think that not fixing any such outer limit in effectuates the guarantee of right to speedy trial. (11) An objection based on denial 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....
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....stice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process 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. * * * ....
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....e opinion that in Common Cause case (I) [(1996) 4 SCC 33: 1996 SCC (Cri.) 589] [as modified in Common Cause (II) [(1996) 6 SCC 775: 1997 SCC (Cri.) 42] ] and Raj Deo Sharma (I) [(1998) 7 SCC 507: 1998 SCC (Cri.) 1692] and (II) [(1999) 7 SCC 604: 1999 SCC (Cri.) 1324] the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A.R. Antulay case [(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 ....
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....iding requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act. We answer the questions posed in the orders of reference dated 19-9-2000 and 26-4-2001 in the abovesaid terms. * * * * * "32. Secondly, though we are deleting the directions made respectively by two-and three-Judge Benches of this Court in the cases under reference, for reasons which we have already stated, we should not, even for a moment, be considered as having made a departure from the law as to speedy trial and speedy conclusion of criminal proceedings of whatever nature and at whichever 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....
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....ent case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature 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 ....
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....conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI." (emphasis supplied) More recently, in Umarmia vs. State of Gujarat (2017) 2 SCC 731, the Hon'ble Supreme Court granted bail to the undertrial inter alia on the ground 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 referre....
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....DA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. [See Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252: 1999 SCC (Cri.) 1156] and Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569: (2006) 2 SCC (Cri.) 118].] "12. Though the appellant is involved in serious offences and has absconded for a period of 10 years before he was arrested in 2004, we see no reason to confine him to jail as he has already suffered more than 12 years in custody and the trial may not be completed in the near future. Taking note of the above, we grant relief of bail to the appellant subject to the following conditions: * * * * * *" (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 Activit....
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....n Maximum punishment for offences alleged 1. Union of India vs K.A. Najee (2021) 3 SCC 713 Indian Penal Code : Sections 143, 147, 148, 120-B, 341, 427, 323, 324, 326 and 506 Pt.II, 201, 202, 153-A, 212, 307, 149 Unlawful Activities (Prevention) Act : Sections 16, 18, 18-B, 19 & 20 Explosive Substances Act, 1908: Section. 3 5 years Absconding for about 5 years Death/Life Imprisonment 2. Iqbal Ahmed Kabir Ahmed vs The State of Maharashtra (2021) SCC OnLine Bom 1805 Indian Penal Code : Sections 120B & 471 Unlawful Activities (Prevention) Act : Sections 13, 16, 18, 18B, 20, 38 & 39 Explosive Substances Act : Sections 4, 5, 6 Over 4.5 years (Aug 2016- March 2021) Life Imprisonment 3. Sagar Tatyaram Gorkhe vs State of Maharashtra (2021) 3 SCC 725 Indian Penal Code : Sections 387, 465, 467, 468, 471 r/w 120-B Unlawful Activities (Prevention) 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, 3....
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....bail. 25. Courts must not play coroner and attend to legal or constitutional rights only after they are 'dead'. Instead we must play doctor, and save such rights from demise before they are extinguished. Courts should pro-actively step-in to protect such rights from being stifled and buried. If equity calls upon affected persons to be vigilant to protect their rights, then surely the courts must also be vigilant, and, to quote the Hon'ble Supreme Court, act as sentinels on the qui vive when it comes to protecting constitutional and legal rights. 26. In the present case, the appellant has spent more than 12 years in custody as an undertrial; 256 witnesses have been examined over the last about 12 years, but 60 prosecution witnesses still remain to be examined. Regardless of how much longer the trial may take hereafter, the incarceration of more than 12 years suffered by the appellant in custody as an undertrial would certainly qualify as a long enough period for the system to acknowledge that the appellant'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 juris....
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....ce, section 57 of the IPC provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned to be equivalent to imprisonment for 20 years; whereby, it would be reasonable to say, that the appellant has already undergone more than half the sentence he may eventually face. To be sure, while observing so, it is not the purport of this court to pre-judge the decision of the learned Trial Court to award to the appellant whatever sentence it deems appropriate, in accordance with law, if the appellant is eventually convicted. 29. In urging us to assume that if one of the offences with which the appellant is charged is punishable with death, the State is, in effect, asking us to not only infer that the appellant would certainly be convicted, but also that he would be awarded the harshest possible sentence, namely the capital sentence. 30. This, we are specifically enjoined not to do while deciding a bail application. In fact, on the well-worn principle that the death sentence is to be awarded only in the 'rarest of rare' cases, capital punishment can never be treated as the default punishment, and even for the most heinous offences it can ....