TaxTMI 
TaxTMI 
2025 (9) TMI 1777
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.... as "Impugned Order") passed by the learned Additional Sessions Judge-03, Shahdara, Karkardooma Courts, Delhi in FIR No. 59/2020 registered at Police Station Crime Branch, Delhi, whereby the third bail application filed by the Appellant was rejected. 2. Briefly stated, the facts germane to the present case are as follows - a. The instant case emerges from the incidents which occurred in North-East Delhi during 23.02.2020 to 25.02.2020, where protests at a large scale were organised against the promulgation of Citizenship Amendment Act, 2019 and the amendments made to the policy of National Registry of Citizens. b. As per the case of the prosecution, various incidents of rioting and violence were conducted in the name of protests, thereby creating ruckus in the society and damage to the public property. c. In this backdrop, FIRs were registered against the accused persons. Pertinently, the Appellant was initially apprehended on 08.04.2020 for his participation in the alleged riots in FIR No. 48/2020 and was also granted regular bail in the said FIR on 10.06.2020. d. However, the present case arises out of the subsequent FIR bearing No....
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....." (emphasis supplied) i. The Appellant herein filed his first bail application before the concerned Trial Court on 16.06.2021, however, the same was dismissed on merits vide Order dated 16.03.2022. j. Pursuant thereto, the Appellant filed an IA No. 60391/2022 in SLP (Crl.) No. 4289/2021 seeking clarification with regards to the interim directions passed in the Order dated 18.06.2021 on the issue of parity. On 02.05.2023, the Apex Court granted liberty to the Appellant to make out a case of parity before the concerned Trial Court. The said Order in its entirety reads as under:- "The impugned order is an extremely elaborate order of bail interpreting various provisions of the UAPA Act. In our view the only issue which is required to be examined in such matters is whether in the factual scenario an accused is entitled to bail or not. It is this argument which persuaded us while issuing notice on 18.06.2021 to observe that the impugned judgment cannot be treated as a precedent and may not be relied upon by any of the parties in any other proceedings. The idea was to protect the State against use of the judgment on enunciation of law qua interpre....
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....be granted to the Appellant solely on the grounds of delay in trial. n. It is this Order which is under challenge in the present appeal. 3. During the pendency of the Appeal, an interim application for bail was filed by the Appellant herein claiming bail on the ground of delay in concluding the appeal. At this juncture, it is pertinent to note that the present case was part of a batch of appeals, which were listed before a Coordinate Bench of this Court. However, the Appellant herein requested the Bench to de-tag this appeal citing that the present case is distinguishable on facts. Accordingly, vide Order dated 20.03.2025, the Coordinate Bench of this Court de-tagged this matter from the batch of appeals and listed the matter before this Court i.e., the Roster Bench. The said Order reads as under:- "1. This appeal was transferred to the Bench comprising one of us (Navin Chawla, J) along with Hon'ble Ms. Justice Shailender Kaur on the premise that there are other connected appeals that are being heard by that Bench. 2. The learned counsel for the appellant, however, later submitted that this appeal should be heard separately, as it raises other issu....
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....ellant herein) have commenced their arguments on charge till date and that it will take unjustifiably long period of time for all the accused persons to even start their arguments on charge due to the inordinate delay on part of the Respondent Agency. 6. It is further stated that there are 700 witnesses to be examined in the present case and the charges are not even framed against the accused persons including Appellant herein. The trial has yet not been commenced, thereby affecting his fundamental rights under Article 21 of the Constitution of India. Relying on Union of India vs. K.A. Najeeb, (2021) 3 SCC 713, learned Counsel for the Appellant submitted that if trial is delayed, that itself is a ground for grant of bail under Section 43D(5) of the UAPA. He states that in the present case, the accused person is in custody for about five years and that there is no possibility that the trial will be concluded in a reasonable period of time. 7. Per Contra, Mr. Amit Prasad, learned SPP for the Respondent Agency, submits that given the Appellant herein is pressing the present appeal only on the ground of delay and has restricted his arguments. He is addressing arguments only on tw....
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.... judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days." 13. A reading of Section 21(4) of the NIA Act makes it manifestly clear that an appeal shall lie to the High Court against the bail order passed by the Special Court. 14. The Apex Court in the case of State of AP through Inspector General, NIA vs. Mohd. Hussain, (2014) 1 SCC 258, has clarified this position and observed as under: - "27. The order passed by this Court on 2-8-2013 in State of A.P. v. Mohd. Hussa....
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....TE OF THE ORDER SUMMARY OF THE TRIAL COURT'S ORDER-SHEETS 05.08.2023 - Compliance under Section 207 of the CrPC qua all the accused persons was completed. - Matter was listed for arguments on charge on 11.09.2023 onwards for a day-to-day hearing. - Learned SPP submitted that he shall commence his arguments on 11.09.2023. 11.09.2023 - The accused persons namely, Devangana Kalita, Natasha Narwal, Sowjhanya Shankaran, Asif Iqbal Tanha objected to commencement of arguments on charge as the investigation is still ongoing. - Learned SPP stated that he is ready to begin the arguments and objections were raised that despite giving considerable period of time for starting the arguments on charge, no adjournment application was moved on time. He stated that the accused persons will later claim bail on the ground of delay in trial. - The Appellant herein, Tasleem Ahmed has submitted that he wants the arguments on charge to begin. 18.09.2023 - Accused persons, namely, Meeran Haider, Athar Khan, Khalid Saifi, Faizan Khan, Ishrat Jahan, Sharjeel Imam, Safoora Zargar, Saleem Malik @ Munna, Shifaur-Rehman, Shadab Ahmad and Gulfisha Ahmed have sought for deferment of a....
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....everal co-accused persons objected to the arguments on charge due to the ongoing investigation. It, therefore, cannot be said that the State is delaying the hearing on charge. 21. Material on record indicates the reluctance on the part of the accused including the Appellant to advance the arguments on charge. Though, on 20.09.2024, a consensus was reached by the accused persons to streamline the proceedings by submitting a schedule as to who will argue on charge sequentially, despite the same, arguments on charge were not commenced by the Appellant. The learned Trial Court recorded its distress in Order dated 04.10.2024, which reads as under:- "It is surprising that on the last date of hearing the court specifically noted that the matter shall be heard on charge on day to day basis and after considering the submissions of the Ld. Counsel for the accused persons that they will make consensus among themselves for addressing arguments in a particular sequence and with their consent only the matter was fixed today for arguments on charge but still none of the counsel is ready to address arguments. The court sees that more than sufficient time was given but still Ld. Counsel....
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....words, after examining the material annexed to the chargesheet, if the Courts are satisfied that the allegations against the accused are not true, then bail under Section 43D(5) of the UAPA can be granted. What amounts to prima facie case has been elaboratively dealt by the Apex Court in the case of Gurwinder Singh v. State of Punjab, (2024) 5 SCC 403. The relevant portions of the said judgment are as under: - "24. The source of the power to grant bail in respect of non-bailable offences punishable with death or life imprisonment emanates from Section 439CrPC. It can be noticed that Section 43-D(5) of the UAP Act modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAP Act. 25. A bare reading of sub-section (5) of Section 43-D shows that apart from the fact that sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to sub-section (5) of Section 43-D puts a complete embargo on the powers of the Special Court to release an accused on bai....
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....tion against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act." (emphasis supplied) 28. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a "rule", if after hearing the Public Prosecutor and after perusing the final report or case diary, the court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied - that the courts would proceed to decide the bail application in accordance with the "tripod test" (flight risk, influencing witnesses, tampering with evidence). This position is made clear by sub-section (6) of Section 43-D, which lays down that the restrictions, on granting of bail specified in sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. 29. On a textual reading of Section 43-D(5) of the UAP Act, the inquiry that a bail court must undertake while de....
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....e [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383], SCC p. 24, para 23) On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. 32.2. Degree of satisfaction at pre charge-sheet, post charge-sheet and post-charges - compared : (Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383], SCC p. 28, para 26) "26. ... once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173CrPC), do not make out reasonable grounds for believing that th....
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.... (2019) 2 SCC (Cri) 383], SCC pp. 24 & 28, paras 23 & 27) The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence.... In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. 33. It will also be apposite at this juncture to refer to the directions issued in Devendar Gupta v. NIA [Devendar Gupta v. NIA, 2014 SCC OnLine AP 192 : (2014) 2 ALD (Cri) 251] wherein a Division Bench of the High Court of Andhra Pradesh strove to strike a balance between the mandate under Section 43-D on one hand and the rights of the accused on the other. It was held as follows : (SCC OnLine AP) "The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is "prima facie true": (1) Whether the accused is/are associated with any organisation, which is prohibited through an order passed under the provisions of the Act; (2) Wh....
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.... Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] (at SCC p. 24, para 23) and observed that : (Sudesh Kedia case [Sudesh Kedia v. Union of India, (2021) 4 SCC 704 : (2021) 2 SCC (Cri) 496], SCC p. 708, para 12) the expression "prima facie" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows that complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted." (emphasis supplied) 26. The Judgment of the Apex Court in Gurwinder Singh (supra), has considered the Judgment of the Apex Court in NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, which has also held that before granting bail for offences under the UAPA, the Court has to peruse the material and come to the conclusion that there are no reasonable grounds for believing that the accusation against the accused is prima facie true. Conversely, if in the opinio....
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....oes not indicate that delay can be the factor for grant of bail especially when the State cannot be solely held responsible for the delay in the proceedings. The relevant portion of the said Judgment reads as under:- "51. We shall now turn to the other offence under the 1967 Act, which is under Section 13 thereof, and the 1860 Code offences. The yardstick for justifying the appellants' plea for bail is lighter in this context. The appellants are almost five years in detention. In K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713] and Angela Harish Sontakke [Angela Harish Sontakke v. State of Maharashtra, (2021) 3 SCC 723], delay of trial was considered to be a relevant factor while examining the plea for bail of the accused. In K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713], in particular, this same provision, that is, Section 43-D(5) was involved. 52. In these two proceedings, the appellants have not crossed, as undertrials, a substantial term of the sentence that may have been ultimately imposed against them if the prosecution could establish the charges against them. But the fundamental proposition of law laid down in K.A. Najeeb [....
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....berate attempts to delay the trial, then the embargo under Section 43D(5) of the UAPA takes a back seat. The relevant extracts reads as under:- "28. Before considering the submissions of the learned ASG with regard to maintainability of the present appeals on account of the second order of this Court, it will be apposite to refer to certain observations made by this Court in its first order, which read thus: "xxx 28. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The rig....
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....ne particular FIR but on a larger canvas in the overall scheme of the multiple FIRs, if existing, against a particular accused. The damage in terms of loss of life as also the intent behind such attacks i.e., to destabilise the law and order situation as well as to strike terror in the minds of people in or outside India, has to be considered for the purposes of granting bail. Terrorist activities, which have trans-national links, would also fall in a more serious and grave category of cases. Accused, who are involved in such activities, could be working overtly and covertly. The fact that they could be linked through dark networks which are easily not traceable needs to be borne in mind. Investigating agencies face enormous challenges in unearthing evidence in such cases. While speedy trial is necessary as a Constitutional prescription, in cases involving antinational activities and that too terrorism at an international scale, long incarceration in itself ought not to lead to enlargement on bail when facts show involvement in such activities. In the case of persons associated with terrorist or unlawful organizations having their activities spanning across countries, the considera....
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....n its precedential value and cannot be applied to the other without considering the specific facts and circumstances that have unfolded in the case at hand." (emphasis supplied) 34. The foregoing judgment specifically states that long incarceration cannot be the sole reason for grant of bail if the facts of the case demand otherwise. Therefore, it is inevitable that the Court while dealing with the grant of bail under Section 43D(5) of the UAPA has to deal with the merits of the case. Except in case of palpable violation of fundamental rights or breach of constitutional rights, bail cannot be granted on the sole factor of long incarceration or delay in trial because, to even allow itself to adjudicate on the issue of grant of bail under Section 43D(5), the Courts must analyse and examine the material provided by the Investigating Agency in whole, which is nothing but assessing the merits of the case on a prima facie basis. 35. Factors such as long incarceration or delay in trial cannot be taken as sole factors for the grant of bail without considering the gravity of the offence or the role played by the accused in the said case, which can be only determined upon a consider....