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Union of India versus K.A.Najeeb

Case Comment, Publications

Citation:- CRIMINAL APPEAL NO. 98 of 2021

Bench:- JUSTICE N.V. RAMANA, JUSTICE SURYA KANT, JUSTICE ANIRUDDHA BOSE

Facts:-  In this particular case one Professor named  TJ Joseph while framing the question paper of the B.com examination at Newman Collage, Thodupuzha mentioned something objectionable regarding a specific religion. The respondent and other members of the Popular Front of India (PFI) plan to avenge this act of Professor TJ Joseph. On 04.07.2010 at about 8 AM, a group of people attacked Professor TJ Joseph when he was returning home. But this act was only starting of their terror, they also shot many country-made bombs at people with the aim to create terror in public. An FIR was registered by the victim Professor’s wife under Sections 143, 147, 148, 120­B, 341, 427, 323, 324, 326, 506(H), 307, 149 of IPC; and Section 3 of the Explosive Substances Act. But during the course of the investigation, it was found out that the attack was part of a   larger conspiracy involving meticulous   pre­planning, numerous failed attempts, and the use of dangerous weapons. It was asserted that the respondent was one of the main conspirators and the provisions contained in Sections 153A, 201, 202, 212 of IPC, along with Sections 16, 18, 18­B, 19, and 20 of the UAPA were also thus invoked against him.

On 10.04.2015 the respondent got arrested and the chargesheet was re-filed by the NIA pursuant to which the respondent is now facing trial, The respondent approached the Special Court and the High Court for bail as many as six times between 2015 and 2019, seeking leniency on grounds of his limited role in the offense and claiming parity with other co­accused who had been enlarged on bail or acquitted. But at that time the court held that this was a clear-cut case of prima facie as had assisted and facilitated the attack, arranged vehicle and SIM cards, waited near the place of occurrence, and transported the perpetrators.  In May 2019 the respondent again approached the high court questioning the Special Court’s order denying bail, also the respondent mention his violation of Article 21 as till known the NIA could not conclude the case, Resultantly, the respondent has spent nearly five years and five months in judicial custody.

Issues Raised

  1. Whether the high court’s decision granting the bail to the respondent was right?
  2. Whether invoking a violation of Article 21 of the Indian constitution with such a factual matrix, is right?

Contention

From the Petitioner’s Side:-

Learned Additional Solicitor General, for the appellant, argued that as there was a clearcut prima facie case, and according to  National Investigation Agency v. Zahoor Ahmad Shah Watali[1] when there is a prima facie case the court cannot grant bail and that is clearly mentioned in section  Section 43­D(5) of UAPA 1967, also he mentions about The fact that the respondent had absconded for years was pressed into aid as legitimate apprehension of his not returning if set free. As regards the early conclusion of the trial,   NIA   has filed an additional affidavit suggesting to examine 276 witnesses and at the same time expecting to conduct the trial on a day­to­day basis and complete it within around a year.

From The Respondent’s Side:-

Learned Senior Counsel appearing for the respondent, on the other hand, Relying upon Shaheen Welfare Association v. Union of India[2] and Hussain v. Union of India[3], it was argued that such protracted incarceration violates the respondent’s right to speedy trial and access to justice;   in which case,   Constitutional   Courts could exercise their powers to grant bail, regardless of limitations specified under special enactments.

Rationale:-

The court first mentioned the case of State of Bihar v. Rajballav Prasad[4],  this Court ruled that deference must be given to the discretion exercised by Superior Courts in matters of bail, save for exceptional circumstances. The afore­cited decision holds as follows:

 “We may observe at the outset that we are conscious of the limitations which bind us while entertaining a   plea against the grant of bail by the lower court, that too, which is a superior court like the High Court. It is expected that once the discretion is exercised by the High Court on relevant considerations and bail is granted, this Court would normally not interfere with such discretion unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such discretion are ignored or bypassed.  … There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. These material considerations are also spelled out in the aforesaid judgments viz.  whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favor by tampering with the evidence. …[5]”

In this particular case, the honorable court held that even tho the harsh provision of UAPA 1967 clearly says that when there is a prima facie case the court cannot grant bail, mentioning case law like Shaheen Welfare Association[6], laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and the consequential necessity to release the undertrial on bail. Also mentioned how stringent provisions and rights and liberty of people can go hand in hand where the honorable court cited these lines

“Bearing in mind the nature of the crime and the need to protect society and the nation,  TADA has prescribed in Section 20(8) stringent provisions for granting bail.  Such stringent provisions can be justified by looking at the nature of the crime,   as was held in the Kartar   Singh case [(1994) 3  SCC  569:  1994   SCC  (Cri)  899],   on the presumption that the trial of the accused will take place without undue delay.  No one can justify a gross delay in the disposal of cases when undertrials perforce remain in jail,   giving rise to possible situations that may justify the invocation of Article 21.[7]”

The bench also mentioned the similarly ­situated case where the accused was charged under the UAPA passed by this Court in  Angela Harish Sontakke v. State of Maharashtra[8].  That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39, and 40(2) of the UAPA. This Court in its earnest effort to draw a balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years’ incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43­D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra[9],  an accused under the UAPA was enlarged for he had been in jail for four years and there were over   147 Also the court mentioned Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India[10], it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter Also, the honorable court mentioned the presence of statutory restrictions like   Section   43­D  (5)   of   UAPA  per­se  does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.

Defects of the Law:-

Yes, it is true that it is important to have such stringent laws like UAPA 1967 but the agency must look into that a particular person’s fundamental rights and liberty did not get violated because the pillar on which these rights are standing is that the trials and proceeding will happen in a speedy way but if the principle of speedy trials gets harmed then there is no use of such laws.

Inference:-

This case is a reminder that why it is very important for the agency to note that trials and investigations should be conducted in such a manner that a person’s fundamental rights and liberties do not get violated, as it was a clear-cut case of prima facie under UAPA 1967, but when investigations do not happen in the time the benefit goes to the accused then that’s become more problematic for agencies also it is important to note that UAPA 1967 has very low conviction rate one of the main reason is lack of speedy trails and investigation which again some times favor the accused as they invoke the violation of fundamental rights. 

Saurabh Singh

Babu Banarasi Das University, Lucknow, Uttar Pradesh

References:-

  1. (2019) 5 SCC 1.
  2. (1996) 2 SCC 616.
  3. (2017) 5 SCC 702.
  4. (2017) 2 SCC 178.
  5. State of Bihar v. Rajballav Prasad,(2017) 2 SCC 178.
  6. (1996) 2 SCC 616.
  7. Shaheen Welfare Association v. Union of India,(1996) 2 SCC 616.
  8. SLP (Crl.) No. 6888 of 2015, Order dated 04.05.2016.
  9. SLP (Crl.) No. 7947 of 2015, Order dated 03.01.2017.
  10. (1994) 6 SCC 731, ¶ 15.