UNION OF INDIAversusK. A. NAJEEB

                          [2021] 1 S.C.R. 443                             443


                         UNION OF INDIA                                   A
                                  v.
                           K. A. NAJEEB
                  (Criminal Appeal No. 98 of 2021)
                        FEBRUARY 01, 2021                                 B
  [N.V. RAMANA, SURYA KANT, ANIRUDDHA BOSE, JJ.]
      Bail:
       Grant of bail – By High Court – To the accused charged for
offences u/ss. 143, 147, 148, 120-B, 341, 427, 323, 324, 326,             C
506(H), 201, 202, 153A, 212, 307 and 149 IPC; u/s. 3 of Explosive
Substances Act, 1908 and ss. 16, 18, 18-B, 19 and 20 of Unlawful
Activities (Prevention) Act, 1967 – On the ground that the undertrial-
accused could not be kept in custody for too long when the trial
was not likely to commence in near future – By setting aside the
                                                                          D
order of Special Court who had declined to grant bail to the accused
primarily in view of the bar against grant of bail u/s. 43-D(5) of
Unlawful Activities (Prevention) Act – Appeal to Supreme Court –
Held: The liberty guaranteed by Part III of the Constitution would
cover within its protective ambit not only due procedure and fairness
but also access to justice and speedy trial – Undertrials cannot          E
indefinitely be detained, pending trial – Once it is obvious that a
timely trial would not be possible and the accused has suffered
incarceration for a significant period of time, courts would ordinarily
be obliged to enlarge them on bail– The statutory restrictions per se
do not oust the ability of Constitutional Courts to grant bail on
                                                                          F
grounds of violation of Part III of the Constitution – Such statutory
restrictions and the powers exercisable under constitutional
jurisdiction can be harmonised – The restriction u/s. 43-D(5) under
Unlawful Activities (Prevention) Act is less stringent than the
restriction provided under s. 37 of NDPS Act – The accused in the
present case has been in jail for more than five years; none of the       G
convicted thirteen co-accused have been sentenced for more than
8 years RI and that 276 witnesses are left to be examined – In the
facts of the case, High Court was left with no other option, but to
grant bail – However, in addition to the conditions to be imposed
                                                                          H
                                 443
444           SUPREME COURT REPORTS                     [2021] 1 S.C.R.


A     by the trial Court while releasing the accused on bail, some more
      conditions are imposed – Appeals are dismissed.
           Shaheen Welfare Association v. Union of India (1996)
           2 SCC 616 : [1996] 2 SCR 1123; Hussain v. Union of
           India (2017) 5 SCC 702 : [2017] 2 SCR 626; Paramjit
B          Singh v. State (NCT of Delhi) (1999) 9 SCC 252; Babba
           alias Shankar Raghuman Rohida v. State of
           Maharashtra (2005) 11 SCC 569; Umarmia alias
           Mamumia v. State of Gujarat (2017) 2 SCC 731; Angela
           Harish Sontakke v. State of Maharashtra 2021 (2)
           SCALE 301; Sagar Tatyaram Gorkhe v. State of
C          Maharashtra 2021 (2) SCALE 302; Supreme Court
           Legal Aid Committee Representing Undertrial Prisoners
           v. Union of India (1994) 6 SCC 731 : [1994] 4 Suppl.
           SCR 386 – relied on.
           National Investigation Agency v. Zahoor Ahmad Shah
D          Watali (2019) 5 SCC 1 : [2019] 5 SCR 1060-
           distinguished
           Puran v. Rambilas (2001) 6 SCC 338 : [2001] 3 SCR
           432; Gurcharan Singh v. State (Delhi Admn.) (1978) 1
           SCC 118 : [1978] 2 SCR 358; State of Bihar v. Rajballav
E          Prasad (2017) 2 SCC 178 : [2016] 9 SCR 652 –
           referred to.
                           Case Law Reference
      [2019] 5 SCR 1060            distinguished           Para 7
F     [1996] 2 SCR 1123            relied on               Para 8
      [2017] 2 SCR 626             relied on               Para 8
      [2001] 3 SCR 432             referred to             Para 9
      [1978] 2 SCR 358             referred to             Para 9
G     [2016] 9 SCR 652             referred to             Para 10
      (1999) 9 SCC 252             relied on               Para 13
      (2005) 11 SCC 569            relied on               Para 13

H
                UNION OF INDIA v. K. A. NAJEEB                                445


(2017) 2 SCC 731                  relied on                 Para 13           A
2021 (2) SCALE 301                relied on                 Para 14
2021 (2) SCALE 302                relied on                 Para 14
[1994] 4 Suppl. SCR 386           relied on                 Para 16
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                       B
No. 98 of 2021.
      From the Judgment and Order dated 23.07.2019 of the High Court
of Kerala at Ernakulam in Crl. M. Appl. 1/2019 in Criminal Appeal No.
659 of 2019.
                                                                              C
      Ms. Aishwarya Bhati, ASG, R. Basant, Sr. Adv., Kanu Agrawal,
Mohd. Akhil, B.V. Balaram Das, Ramesh Babu M. R., Advs. for the
appearing parties.
      The Order of the Court was passed by
      SURYA KANT, J.                                                          D
      1. Leave Granted.
       2. The present appeal has been preferred by the Union of India
through the National Investigation Agency (in short, “NIA”) against an
order dated 23.07.2019 of the High Court of Kerala at Ernakulam,
whereby bail was granted to the respondent for an offence under               E
Sections 143, 147, 148, 120-B, 341, 427, 323, 324, 326, 506(H), 201, 202,
153A, 212, 307, 149 of the Indian Penal Code, 1860 (“IPC”), Section 3
of the Explosive Substances Act, 1908 and Sections 16, 18, 18-B, 19 and
20 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”).
      FACTS                                                                   F

       3. The prosecution case in brief is that one Professor TJ Joseph
while framing the Malayalam question paper for the second semester
B.Com. examination at the Newman College, Thodupuzha, had included
a question which was considered objectionable against a particular religion
by certain sections of society. The respondent in association with other      G
members of the Popular Front of India (PFI), decided to avenge this
purported act of blasphemy. On 04.07.2010 at about 8AM, a group of
people with a common object, attacked the victim-professor while he

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446            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     was returning home with his mother and sister after attending Sunday
      mass at a local Church. Over the course of the attack, members of the
      PFI forcefully intercepted the victim’s car, restrained him and chopped-
      off his right palm with choppers, knives, and a small axe. Country-made
      bombs were also hurled at bystanders to create panic and terror in their
      minds and to prevent them from coming to the aid of the victim. An FIR
B
      was consequently lodged against the attackers by the victim-professor’s
      wife 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.
             4. It emerged over the course of investigation that the attack was
      part of a larger conspiracy involving meticulous pre-planning, numerous
C     failed attempts and use of dangerous weapons. Accordingly, several
      dozen persons including the present respondent were arraigned by the
      police. It was alleged that the respondent was one of the main
      conspirators and the provisions contained in Sections 153A, 201, 202,
      212 of IPC, along with Section 16, 18, 18-B, 19 and 20 of the UAPA
D     were also thus invoked against him. However, owing to him being
      untraceable, the respondent was declared an absconder and his trial
      was split up from the rest of his co-conspirators. The co-accused of the
      respondent were tried and most of them were found guilty by the Special
      Court, NIA vide order dated 30.04.2015 and were awarded cumulative
      sentence ranging between two and eight-years’ rigorous imprisonment.
E
             5. The respondent could be arrested on 10.04.2015 only and a
      chargesheet was re-filed by the National Investigation Agency against
      him, 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
F     role in the offence and claiming parity with other co-accused who had
      been enlarged on bail or acquitted. Save for the impugned order, bail
      was declined to the respondent, observing that prima facie he had prior
      knowledge of the offence, had assisted and facilitated the attack, arranged
      vehicle and SIM cards, himself waited near the place of occurrence,
G     transported the perpetrators, sheltered, and medically assisted them
      afterwards. The Courts were, therefore, of the view that the bar against
      grant of bail under Section 43-D (5) of the UAPA was attracted.
             6. The respondent again approached the High Court in May, 2019
      for the third time, questioning the Special Court’s order denying bail.
H     The High Court through the impugned order, released the respondent on
                   UNION OF INDIA v. K. A. NAJEEB                               447
                         [SURYA KANT, J.]

bail noting that the trial was yet to begin though the respondent had been      A
in custody for four years. Placing emphasis on the mandate for an
expeditious trial under the National Investigation Agency Act, 2008, the
High Court held that the undertrial-respondent could not be kept in custody
for too long when the trial was not likely to commence in the near future,
for not doing so would cause serious prejudice and suffering to him. The
                                                                                B
operation of the aforementioned bail order was, however, stayed by this
Court. Resultantly, the respondent has spent nearly five years and five
months in judicial custody.
         CONTENTIONS
       7. Learned Additional Solicitor General, for the appellant, argued       C
that the High Court erred in granting bail without adverting to the statutory
rigours of Section 43-D(5) of UAPA. Relying upon judgment in National
Investigation Agency v. Zahoor Ahmad Shah Watali1, it was highlighted
that bail proceedings under the special enactment were distinct and the
Courts are duty-bound to refuse bail where the suspect is prima facie
believed to be guilty. It was further contended that in numerous prior          D
rounds before the Special Court and the High Court, there emerged
enough reasons to believe that the respondent was, prima facie, guilty
of the accusations made against him. The fact that the respondent had
absconded for years was pressed into aid as legitimate apprehension of
his not returning if set free. As regard to the early conclusion of trial,      E
NIA has filed an additional affidavit suggesting to examine 276 witnesses
and at the same time expecting to conduct the trial on a day-to-day basis
and complete it within around a year.
       8. Learned Senior Counsel appearing for the respondent, on the
other hand, highlighted that many of the co-accused had been acquitted,         F
and although a few had been convicted as well, but those convicts had
also been awarded a sentence of not more than eight years. Given how
the respondent has already suffered incarceration of almost five-and-a-
half years without the trial having even started, it would violate his
Constitutional liberty and rights to have him serve most of his sentence
without any adjudication of guilt by a judicial authority. He urged that        G
once the High Court had exercised discretion to grant bail, the same
ought not to be interfered with except in rare circumstances. Relying
upon Shaheen Welfare Association v. Union of India2 and Hussain
1
    (2019) 5 SCC 1.
2
    (1996) 2 SCC 616.                                                           H
448             SUPREME COURT REPORTS                             [2021] 1 S.C.R.


A     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.
             ANALYSIS
B            9. It must be emphasised at the outset that there is a vivid distinction
      between the parameters to be applied while considering a bail application,
      vis-à-vis those applicable while deciding a petition for its cancellation. In
      Puran v. Rambilas4, it was re-iterated that at the time of deciding an
      application for bail, it would be necessary to record reasons, albeit without
C     evaluating the evidence on merits. In turn, Puran (supra) cited
      Gurcharan Singh v. State (Delhi Admn.)5; wherein this Court observed
      that bail once granted by the trial Court, could be cancelled by the same
      Court only in case of new circumstances/evidence, failing which, it would
      be necessary to approach the Higher Court exercising appellate
      jurisdiction.
D
             10. In State of Bihar v. Rajballav Prasad6, this Court ruled that
      deference must be given to the discretion exercised by Superior Courts
      in matters of bail, save for exceptional circumstances. The afore-cited
      decision holds as follows:

E            “14. We may observe at the outset that we are conscious of
             the limitations which bind us while entertaining a plea against
             grant of bail by the lower court, that too, which is a superior
             court like 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
F            such a 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 a discretion are ignored or bypassed....There have to be
             very cogent and overwhelming circumstances that are
G            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
      3
        (2017) 5 SCC 702.
      4
        (2001) 6 SCC 338.
      5
        (1978) 1 SCC 118.
      6
H       (2017) 2 SCC 178.
                   UNION OF INDIA v. K. A. NAJEEB                                449
                         [SURYA KANT, J.]

         available for his trial and whether he is likely to abuse the           A
         discretion granted in his favour by tampering with the
         evidence. …”
                                                      (emphasis supplied)
      11. It is a fact that the High Court in the instant case has not
determined the likelihood of the respondent being guilty or not, or whether      B
rigours of Section 43-D(5) of UAPA are alien to him. The High Court
instead appears to have exercised its power to grant bail owing to the
long period of incarceration and the unlikelihood of the trial being
completed anytime in the near future. The reasons assigned by the High
Court are apparently traceable back to Article 21 of our Constitution, of        C
course without addressing the statutory embargo created by Section 43-
D (5) of UAPA.
       12. The High Court’s view draws support from a batch of decisions
of this Court, including in Shaheen Welfare Association (supra),laying
down that gross delay in disposal of such cases would justify the invocation     D
of Article 21 of the Constitution and consequential necessity to release
the undertrial on bail. It would be useful to quote the following observations
from the cited case:
         “10. Bearing in mind the nature of the crime and the need to
         protect the society and the nation, TADA has prescribed in              E
         Section 20(8) stringent provisions for granting bail. Such
         stringent provisions can be justified looking to the nature of
         the crime, as was held in 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 gross delay in disposal of cases when undertrials           F
         perforce remain in jail, giving rise to possible situations that
         may justify invocation of Article 21.”
                                                      (emphasis supplied)
       13. Even in the case of special legislations like the Terrorist and
                                                                                 G
Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“NDPS”) which too have somewhat
rigorous conditions for grant of bail, this Court in Paramjit Singh v.
State (NCT of Delhi)7, Babba alias Shankar Raghuman Rohida v.
7
    (1999) 9 SCC 252.                                                            H
450              SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     State of Maharashtra8 and Umarmia alias Mamumia v. State of
      Gujarat9 enlarged the accused on bail when they had been in jail for an
      extended period of time with little possibility of early completion of trial.
      The constitutionality of harsh conditions for bail in such special enactments,
      has thus been primarily justified on the touchstone of speedy trials to
      ensure the protection of innocent civilians.
B
             14. We may also refer to the orders enlarging similarly-situated
      accused under the UAPA passed by this Court in Angela Harish
      Sontakke v. State of Maharashtra 10. 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 balance between the seriousness
C     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 43-D(5) of
      UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of
D     Maharashtra11, an accused under the UAPA was enlarged for he had
      been in jail for four years and there were over 147 witnesses still
      unexamined.
             15. The facts of the instant case are more egregious than these
      two above-cited instances. Not only has the respondent been in jail for
E     much more than five years, but there are 276 witnesses left to be
      examined. Charges have been framed only on 27.11.2020. Still further,
      two opportunities were given to the appellant-NIA who has shown no
      inclination to screen its endless list of witnesses. It also deserves mention
      that of the thirteen co-accused who have been convicted, none have
      been given a sentence of more than eight years’ rigorous imprisonment.
F     It can therefore be legitimately expected that if found guilty, the
      respondent too would receive a sentence within the same ballpark. Given
      that two-third of such incarceration is already complete, it appears that
      the respondent has already paid heavily for his acts of fleeing from justice.
            16. This Court has clarified in numerous judgments that the liberty
G     guaranteed by Part III of the Constitution would cover within its protective
      ambit not only due procedure and fairness but also access to justice and
      8
        (2005) 11 SCC 569.
      9
        (2017) 2 SCC 731.
      10
         SLP (Crl.) No. 6888 of 2015, Order dated 04.05.2016.
      11
H        SLP (Crl.) No. 7947 of 2015, Order dated 03.01.2017.
                    UNION OF INDIA v. K. A. NAJEEB                              451
                          [SURYA KANT, J.]

a speedy trial. In Supreme Court Legal Aid Committee Representing               A
Undertrial Prisoners v. Union of India12, 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. However, owing to the practicalities of real life
where to secure an effective trial and to ameliorate the risk to society in
                                                                                B
case a potential criminal is left at large pending trial, Courts are tasked
with deciding whether an individual ought to be released pending trial or
not. Once it is obvious that a timely trial would not be possible and the
accused has suffered incarceration for a significant period of time, Courts
would ordinarily be obligated to enlarge them on bail.
       17. As regard to the judgment in NIA v. Zahoor Ahmad Shah                C
Watali (supra), cited by learned ASG, we find that it dealt with an entirely
different factual matrix. In that case, the High Court had re-appreciated
the entire evidence on record to overturn the Special Court’s conclusion
of their being a prima facie case of conviction and concomitant rejection
of bail. The High Court had practically conducted a mini-trial and              D
determined admissibility of certain evidences, which exceeded the limited
scope of a bail petition. This not only was beyond the statutory mandate
of a prima facie assessment under Section 43-D(5), but it was premature
and possibly would have prejudiced the trial itself. It was in these
circumstances that this Court intervened and cancelled the bail.
                                                                                E
       18. It is thus clear to us that the presence of statutory restrictions
like Section 43-D (5) of UAPA per-se does not oust the ability of
Constitutional Courts to grant bail on grounds of violation of Part III of
the Constitution. Indeed, both the restrictions under a Statue as well as
the powers exercisable under Constitutional Jurisdiction can be well
harmonised. Whereas at commencement of proceedings, Courts are                  F
expected to appreciate the legislative policy against grant of bail but the
rigours of such provisions will melt down where there is no likelihood of
trial being completed within a reasonable time and the period of
incarceration already undergone has exceeded a substantial part of the
prescribed sentence. Such an approach would safeguard against the               G
possibility of provisions like Section 43-D (5) of UAPA being used as
the sole metric for denial of bail or for wholesale breach of constitutional
right to speedy trial.

12
     (1994) 6 SCC 731, 15.                                                      H
452             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A            19. Adverting to the case at hand, we are conscious of the fact
      that the charges levelled against the respondent are grave and a serious
      threat to societal harmony. Had it been a case at the threshold, we would
      have outrightly turned down the respondent’s prayer. However, keeping
      in mind the length of the period spent by him in custody and the unlikelihood
      of the trial being completed anytime soon, the High Court appears to
B
      have been left with no other option except to grant bail. 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.
C            20. Yet another reason which persuades us to enlarge the
      Respondent on bail is that Section 43-D(5) of the UAPA is comparatively
      less stringent than Section 37 of the NDPS. Unlike the NDPS where
      the competent Court needs to be satisfied that prima facie the accused
      is not guilty and that he is unlikely to commit another offence while on
D     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.
E
             CONCLUSION
             21. In light of the above discussion, we are not inclined to interfere
      with the impugned order. However, we feel that besides the conditions
      to be imposed by the trial Court while releasing the respondent, it would
F     serve the best interest of justice and the society-at-large to impose some
      additional conditions that the respondent shall mark his presence every
      week on Monday at 10 AM at the local police station and inform in
      writing that he is not involved in any other new crime. The respondent
      shall also refrain from participating in any activity which might enrage
      communal sentiments. In case the respondent is found to have violated
G     any of his bail conditions or attempted to have tampered the evidence,
      influence witnesses, or hamper the trial in any other way, then the Special
      Court shall be at liberty to cancel his bail forthwith. The appeal is
      accordingly dismissed subject to above- stated directions.

H     Kalpana K. Tripathy                                           Appeal dismissed.