The Supreme Court upheld the Kerala high court’s order to grant bail in a UAPA case and remarked “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.”
Facts
The victim was a professor in a college. While making a question paper, he added a question in the exam which was considered objectionable against a particular religion by a section of society. Consequently the respondent and members of popular front of India attacked the professor and his family and chopped off the professor’s hand. They also hurled bombs at the bystanders to prevent any aid from them to the professor and created a situation of terror and panic. It was found in further investigation that the attack was a preplanned conspiracy. Multiple sections of IPC and UAPA were invoked against the respondent and the co-accused. The co-accused were tried and found guilty of multiple offences and each were sentenced to rigorous imprisonment ranging for 2 to 8 years. The respondent was untraceable at that time and he was declared an absconder. The respondent approached the courts for bail multiple times since his arrest in 2015 but he was declined owing to his prima-facie involvement in the attack and its planning. The respondent approached the Kerala high court where he was granted the bail owing to the fact that he had been in the custody for more than 4 years and the trial was not likely to commence in near future. However, the bail order was stayed by the apex court and the appeal was made by the NIA against the order.
Appellant’s Contentions
The learned additional solicitor general appearing for the appellant argued that the high court had erred in granting bail to the respondent without considering the statutory rigors of Section 43D(5) of UAPA. The ASG further contended that the respondent absconded once before and if set free, there were chances that he might not return. The counsel also submitted that there were enough reasons to believe that the respondent was prima-facie, guilty of the charges against him.
Respondent’s Submissions
The counsel appearing for the respondent submitted that the respondent had already undergone imprisonment for five and a half year without any trial and pointed out the fact that other accused have been acquitted and those convicted are also sentenced for R.I. not more than 8 years. The counsel contended that serving more sentence without any trial would violate the fundamental rights of the respondent and added that the constitutional courts of the country were empowered to grant bail in such cases regardless of any statutory limitations.
Court’s Decision
The Apex court bench of Justice NV Ramana, Justice Surya Kant and Justice Aniruddha Bose observed that the high court had exercised its power to grant bail owing to the fact that the respondent had been incarcerated for a long period of time and it was unlikely that the trial would be complete in near future. The court assessing the period of time which respondent spent incarcerated commented “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. 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 if fleeing from justice.”
Regarding the statutory restrictions against the bail under section 43-D(5) of the UAPA the court remarked “ the presence of statutory restrictions like Section 43D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of PartIII of the constitution. Indeed, both the restrictions under a Statute as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised.”
The court further pointed out that the restriction on bail under the UAPA is less stringent as compared to section 37 of NDPS Act.
After due consideration of the facts and circumstances in the case, the court decided to not interfere with the high court’s bail order, however, the court added some conditions on the respondent’s bail and granted the power to special court to cancel the bail in case of any violation of the bail conditions.
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