burglar, burglary, surveillance camera

Union Of India V. K.A. Najeeb

(Criminal appeal No.98 of 2021)

(2021) 3 SCC 713

Facts:

A Professor TJ Joseph of the Newman College, Thodupuzha while framing a Malayalam question paper for B.Com 2nd semester , had included an objectionable question against a particular religion of certain society. The respondent along with the members of Popular Front of India decided to take revenge for this act of blasphemy.

On 04.07.2010 at about 8 AM , a group of people attacked the victim Professor when he was returning home after attending Sunday mass at the local church, with his sister and mother. In the course of the attack , the members of PFI  forcefully intercepted the victim’s car and restrained him. His right palm was chopped-off with choppers, knife and a small axe. Country- made bombs were also hurdled on the bystanders to create panic in their minds and to prevent them to help the victims. A FIR was filed by victim’s wife against the attackers under sections 143, 147, 148, 120-B , 341, 427, 323, 324, 326, 506(H) ,307, 149 of IPC ; and Section 3 of Explosive Substances Act.

In the investigation , it was found that the attack was a result of pre-planning, numerous failed attempts and also the use of dangerous weapons. It was said that the respondent was the main conspirator. As the respondent was found untraceable , declared an absconder and trial was spilt on his co- conspirator. Most of them was found guilty in the trial by the special Court , NIA on 30.04.2015 and awarded with rigorous punishment ranging from two to eight years.

The respondent was arrested on 10.04.2015 , the chargesheet was re-filled by the NIA against him. The respondent has approached special court and high court six times between 2015 and 2019 on the basis of limited role in offence and other co-accused had been granted with bail. The bail was denied ,under Section 43-D (5) of UAPA Act, because he was found prima- facie as he had prior knowledge of offence , assisted and facilitated the attack , arranged vehicles and SIM cards and waited at the place of offence , transported and sheltered the accused and medically assisted them.

The respondent approached High court for the third time in may, 2019 , questioning the denying bail by the special court The High Court granted bail because the trial has yet to begin and he had already spent four years in judicial custody. Under the National Investigation Agency Act, 2008 , The High Court held that under trial respondent could not be kept in custody for so long when the trial was not likely to be commenced in near future , it would be serious prejudice and suffering to him. This operation of the bail order was stayed by the Court. Resulting this , the respondent spent five years and five months in the judicial custody.

Issues Raised:

Whether a person should grant a bail ,if the trial has not started yet and not likely to start in near future, under Article 21 of Constitution of India which give right to life and personal liberty or should be denied under Section 43- D(5) of UAPA ,Act ?

Contentions:

It was argued that the High Court had mistakened in granting bail without referring to the statutory provisions of Section 43 –D (5) of UAPA. By relying on a judgment National Investigation Agency V. Zahoor Ahmad Shah Watali[1] which highlights that bail proceedings under the special enactment were distinct and the Courts are duty bound to refuse bail under the suspect is prima facie believed to be guilty. It was contented that many times before the Special Court and the High Court , there are enough reasons to believe that the respondent was prima facie guilty. The fact was also that the respondent had absconded for years. NIA has also filed an additional affidavit suggesting to examine 276 witnesses and same time expecting to conduct trial on daily basis.

It was also highlighted that many co-accused had been acquitted and few are convicted but awarded a sentence not more than eight years. And the respondent had already spent his five years and six months without any trial. Relying on Shaheen Welfare Association V. Union Of India [2] and Hussain V. Union Of India[3] , it was argued that  the incarceration violates the fundamental right to speedy trial and access to justice.

Rationale:

There are vivid distinction between the parameters to be applied while considering a bail application. It was observed in Gurcharan Singh V. State (Delhi Adm.)[4] that bail once granted by the trial court could be cancelled by the same court only in new circumstances otherwise it was necessary to approach the High Court.

The High Court’s view was supported by  Shaheen Welfare Association that these cases violates the fundamental rights of a person under Article 21 of Constitution of India. No one can justify gross delay in disposal of cases when under trials forced to remain in jail.

Defects of Law:

UAPA was a legislation that was enacted initially to ease the burden on the criminal justice system of India, but it received heavy criticism for the act being arbitrary after the amendments to the Act were enacted.

According to national crime records burearu data, only 2.2 percent has being convicted by the courts. Therefore, keeping the accused in custody for a long term can seem questionable. However, it is conflict between longer custody and constitutional rights. In this case, the accused fundamental rights was violated by keeping in jail for more than five years without any trial.

Inference:

Unlawful Activities Prevention Act, 1967 was enacted to help the government to end the increasing terrorist activities. Looking at such cases, it will be safe to say that along with curbing the terrorist activities, UAPA is also violating the constitutional and fundamental rights of the individual which can’t be taken away from the citizen even when there is an emergency in the country. There should be a concrete balance between the provisions of UAPA Act and fundamental rights of an individuals. Just like in this case, the respondent was kept in judicial custody for five years and six months without any trial with a conclusion that he was an absconder without any evidence, this violated the fundamental rights of the person which is provided under article 21 of the Constitution of India.

Garima Kamboj

College: University Institute of Legal Studies, Panjab University, Chandigarh


[1] National Investigation Agency V. Zahoor Ahmad Shah Watali , (2019) 5 SCC 1

[2] Shaheen Welfare association V. Union Of India , (1996) 2 SCC 616

[3] Hussain V. Union of India , (2017)5 SCC 702

[4] Gurcharan Singh V. State (Delhi ADMN.) (1978)1 SCC 118