(Criminal appeal no.98 of 2021)
[Arising out of Special Leave Petition (Crl.) No. 11616 of 2019]
Facts:
- In this case K.A Najeeb, the respondent in the year 2010 was accused of encouraging
an unlawful act against a Professor in Kerala following the objectionable questions
framed by him in B. Com examination. He was arrested by the National Investigation
Agency (NIA) in 2015 since he was a member of Popular Front of India, a fundamentalist
group under UAPA (Unlawful Activities Prevention Act).
- Between 2015 to 2019, he applied for bail in front of the NIA special court for 6 times,
but each time the bail was rejected on the ground of section 43D (5) of the act given
that he was a prima facie accused in the case.
- Against this order the special court, he filed an appeal in the Kerala High Court. The
High Court noticed the fact that he has spent the last 5 and 1/2 years in judicial custody
without a trial and recognised his right to speedy trial and access to justice protected
under article 21 of the Constitution. Following which he was granted bail by the Kerala
High court in 2019 due to delay in trials.
- Against this order of the High Court, an appeal was filed in the Supreme Court by
the National Investigation Agency stating that normal criminal laws will not apply on
the statutory restrictions provided under the UAPA act i.e., Section 43 D (5).
Contention:
Strong contentions were presented from both sides. Learned Additional Solicitor General argued for the appellant, stating that the High Court erred in granting bail without adverting to the statutory rigours of Section 43D (5) of UAPA.
Where has appellant side,
The Appellant stated that the respondent’s bail in this instance was invalid because it did not comply with Section 43D (5) of the UAPA. The attorney emphasised that if the accused is prima facie guilty, the courts are obligated to deny bail. It was also argued in this instance that the fact that the respondent had been a fugitive for years made it clear for the courts to deny bail. Finally, in response to the trial’s postponement, the attorneys, in this case, said that the NIA had submitted an extra affidavit to interrogate 276 witnesses.
Where has respondent side,
The respondent’s counsel emphasized that the majority of the co-accused have either been acquitted or sentenced to no more than eight years in prison. In addition to the aforementioned issue, the respondent had previously been imprisoned for more than 5 years, which is a constitutional violation under Part III of the Constitution’s equal access to justice and right to a prompt trial provision. Furthermore, the respondent’s attorney made the position that if the High Court has granted bail to the accused, the Supreme Court should not intervene unless there are exceptional circumstances.
Rationale:
Whether restriction Section 43D (5) of UAPA applicable on violation of Article 21.
According to the Supreme Court, the defendant had the right to present evidence of his choice and establish his allegations beyond a reasonable doubt under Part III of the Constitution. In this regard, the appellants are considered unsustainable[1]. UAPA Section 43D (5) may apply in the event of a violation of Article 21 The court ruled that constitutional courts still have the power to grant bail despite statutory limitations such as UAPA Section 43D (5).
Whether refusal of bail is mandatory where the suspect is prima facie guilty.
It was further added that both the restriction from the statute and the powers promised to the Supreme Court under constitutional jurisdiction can be well harmonised.
Despite the accused being prima facie under the suspicion of being guilty, the judges while acknowledging the nature of offences kept in mind the time the respondent had spent in custody. But given the ‘unlikelihood of the trial being completed anytime soon’, the High Court’s decision of granting bail was justified. The court advanced,
“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”
Whether bail can be challenged without any special grounds.
It has been argued that Section 43D (5) of the UAPA is less restrictive than Section 37 of the NDPS[2]. Unlike their NDPS, which requires the court to determine that the defendant is innocent and unlikely to commit another crime while on probation, UAPA does not require it. Section 43D (5) of the UAPA[3] simply provides another reason for a court of competent jurisdiction to deny bail. In this case, the court used this as a further justification for granting bail to the accused and therefore refused to appeal the High Court’s decision.
The Hon’ble Court imposed several other restrictions on defendants in the interest of the wider community and to discourage acts of violence within the community.
Defendants must report to the district police station by 10:00 am each Monday and declare in writing that they are not involved in any new crimes. Respondents are also prohibited from participating in activities that may lead to social unrest. In addition, it was ruled that the defendant’s bail would be removed immediately in the event of a breach of bail conditions, tampering with evidence, or interference with the trial.
DEFECTS OF LAW:
The UAPA was designed to reduce the burden on Indian criminal courts, but its amendments were seen as unpredictable. In particular, Section 43D (5) of the UAPA will be reviewed to give the NIA Special Court exclusive authority to deny bail. The term “necessary” was not defined in this context either by law or by subsequent decisions. Therefore, law enforcement agencies may abuse this provision. Moreover, as the current case shows, the NIA Special Court repeatedly denied the defendant bail before the Supreme Court granted it. The National Criminal Records Service reports that only 2.2% of those imprisoned under the UAPA were convicted.[4] Therefore, if the defendant has been in custody for a long time, the situation may look questionable. Long-term police detention, on the other hand, is related to fundamental rights. Again, the defendant violated constitutional human rights and without trial, he was sentenced to over five years in prison. The suspect was later released on bail, according to the Supreme Court. Prosecutors have often used the harsh provisions of Section 43(d)(5) of the Unlawful Activities (Prevention) Act as a weapon, making it nearly impossible to bail anyone charged under the UAPA[5]. Many awaiting trials, like the defendant, in this case, are imprisoned for years as the trial continues and investigative services spend too much time interviewing witnesses. Even if found not guilty, mistakes in investigating and framing offenders under new laws such as UAPA could result in their death. In a similar case, NIA v Zahoor Ahmad Shah watali.[6] the defendant’s bail application was denied due to the weak and unfounded allegations made by the investigative agency. The same didn’t even get a glance. The recognition of natural justice in the constitution guarantees fairness and defends individual liberties.[7]
Defendants have few, if any, rights under UAPA Section 43D (5) in clear violation of the Core Principles. Although the court has not established specific rules to support future parole requests, this case should serve as a model for similar cases to protect the right to freedom and a fair trial. The deliberate slowness of the investigation, the procedural system, and the length of time the defendants were incarcerated have all been highlighted in this case, while also shedding light on the work of India’s anti-terrorism authorities. Judiciary officials said there was “no reason to doubt the police” over the level of abuse in the state case against Mohd Afzal[8]. It has become clear that the widespread practice of detention is largely ignored
To get justice in this case, the defendant had to apply for bail six times in four years. In the future, judges will have to take this fact into account and broaden the scope of the decision taken in the present case, because the right to a swift trial also includes the preliminary phase. Delay strategies are often used by investigation organizations, as evidenced by several recent cases. Having determined that the right to a speedy trial is of greater constitutional importance than statutory limitations, the court should recognize such remedies for abuse of power in statutes such as the UAPA.
INFERENCE:
The Unlawful Activities Prevention Act, 1967 was supposed to help the government stop the proliferation of terrorist activities and reduce the burden on the criminal justice system. In light of these events, it is reasonable to conclude that UAPA has violated the constitutional rights of citizens, which cannot be curtailed when the country is in an “emergency ” in addition to fighting terrorist activities. Creating a balance between fundamental rights and strong laws is crucial for citizens to feel empowered and not threatened.
Even though the accused has been declared prima facie guilty by the NIA and there is provision under Section 43D (5) of UAPA to deny bail.[9]
However, the courts can grant bail if the provisions under any law are violating the constitution rights of the accused, and in the present case by the facts put forth, it is crystal clear the hon’ble Supreme Court that the ‘right to speedy trial ‘ has been violated.
Furthermore, Section 43D (5) has no precondition to restrict the accused to commit another crime, and it is just another way to delay the bail. therefore, the Supreme court concluded by upholding the decision of the High court and also found the special leave petition unmaintainable.
SOUMYA KALAL, LL.B (3 YEARS) FINAL YEAR
Faculty of law, MES Law College (kslu), Sirsi, 581401.
[1] Constitution of India, part III
[2] Narcotics Drugs & Psychotropic Substance Act 1985, s 37
[3] Unlawful Activities Prevention Act 1967, s 43D (5)
[4] Aakar Patel, UAPA (Amendment) Bill 2019 violates the very international laws it quotes, defies principles of natural justice.
[5]Ibid
[6] NIA v. Zahoor, (2019) 5 SCC 1
[7] Ibid
[8]State v. Mohd Afzal, (2003) SCC 935
[9] Brazilia Vaz, Union of India v. K.A. Najeeb (2021) – Granting of Bail in UAPA Case, LawyersClubIndia (Feb 18, 2022 at 10.56 pm),