[Cites 23, Cited by 0]
Bombay High Court
Hany Banu vs National Investigation Agency And Anr. on 4 December, 2025
Author: A.S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:53109-DB
KSG APEALST-12301-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL (ST) NO. 12301 OF 2024
Hany Babu
Aged about :- 54 years,
Otherwise R/o, C 2102, Hyde Park,
Sector 78, Noida, U.P. 201304
Currently incarcerated as,
UTP M.B. 271 at, Taloja Central Prison,
Navi Mumbai ... Appellant
V/s.
1) National Investigation Agency
(FIR No.1 of 2020) ... Respondent No.1
2) State of Maharashtra ... Respondent No.2
_______________________________________
Dr.Yug Mohit Chaudhry with Mr.Anush Shetty for the Appellant.
Mr.Anil C. Singh, Additional Solicitor General of India a/w Mr.Chintan Shah,
Mr.Sandeep Sadawarte, Mr.Adarsh Vyas, Ms.Rma Gupta, Mr.Krishnakant
Deshmukh and Mr.Rajdatt Nagre for Respondent No.1- NIA.
Mr.Ajay Patil, A.P.P. for the Respondent No.2- State.
Mr.Pravin Ingawale, SP, NIA Mumbai present.
Mr.Vishal Gaikwad, Dy.SP, NIA, Mumbai present.
_______________________________________
CORAM : A. S. GADKARI AND
RANJITSINHA RAJA BHONSALE, JJ.
RESERVED ON : 3rd OCTOBER, 2025
PRONOUNCED ON : 4th DECEMBER, 2025
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JUDGMENT. : (Per:- A.S. Gadkari, J.)
1) This is an Appeal under Section 21(4) of the National
Investigation Agency Act, 2008 (for short 'NIA Act') by the Original Accused
No.12, impugning the Order dated 14 th February 2022, passed below Exh.
535, in NIA Special Case No.414 of 2020, by the learned Special Judge, NIA,
City Civil and Sessions Court, Greater Mumbai. By the impugned Order, the
Application for bail filed by the Appellant under Section 439 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) for the offences punishable under
Sections 121, 121-A, 124-A, 153-A, 505(1)(b), 115, 120-B, 201 read with 34
of the Indian Penal Code, 1872 and Sections 13, 16, 17, 18, 18-A, 18-B, 20,
38 and 39 of the Unlawful Activities (Prevention) Act, 1967, has been
rejected by the trial Court.
2) Record reveals that, against the said Order dated 14 th February
2022 passed below Exh.535, the appellant had filed Criminal Appeal No.351
of 2022 before this Court. The co-ordinate Bench by its Judgment dated 19 th
September 2022, dismissed the said Appeal. The said Judgment dated 19 th
September 2022, was assailed by the Appellant before the Hon'ble Supreme
Court by filing Petition(s) for Special Leave to Appeal (Cri.) No(s). 1596 of
2024. As in the intervening period there was change of circumstance, the
learned counsel appearing for the Appellant did not press the said Appeal by
submitting before the Hon'ble Supreme Court that, the Appellant would
approach the High Court for an appropriate remedy. The Hon'ble Supreme
KSG APEALST-12301-24.doc
Court by its Order dated 3 rd May 2024, dismissed the said Special Leave to
Petition as not pressed for. The Appellant thereafter filed present Appeal on
10th June 2024. By an Administrative Order dated 3 rd March 2025, the
Hon'ble the Chief Justice was pleased to assign the Appeal to this Bench.
2.1) After service of notice upon the Respondent No.1, Mr.Anil Singh,
learned Additional Solicitor General of India appeared on 2 nd May, 2025 and
raised preliminary objections about the maintainability of this Appeal. The
objections raised by learned A.S.G. Mr. Singh and the submissions on behalf
of the Appellant by learned counsel Dr.Chaudhry, have been recorded in
Order dated 2nd May, 2025.
2.2) In view of the observations of this Court in paragraph No.5 of
Order dated 2nd May 2025, the Appellant had preferred Miscellaneous
Application No.1208 of 2025 in SLP (CRL) No.1596 of 2024, before the
Hon'ble Supreme Court. By its Order dated 16 th July, 2025, the Hon'ble
Supreme Court disposed off the said Miscellaneous Application. Paragraph
No.2 of the said Order reads as under :-
"2. We do not find any substance in this application and
the same is, accordingly, dismissed leaving it open for the
applicant/petitioner to take his remedies either before the High
Court or before the trial Court or may seek revival of the Special
Leave Petition."
3) In this background learned counsel for the Appellant requested
this Court to hear this Appeal. Mr.Singh, learned Additional Solicitor General
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of India, with the usual fairness at his command acceded to the request of
the Appellant for hearing of the Appeal before the High Court.
4) Heard Dr.Chaudhry, learned counsel for the Appellant, Mr.Singh,
learned Additional Solicitor General of India for the Respondent No.1-N.I.A.
and Mr.Patil, learned APP for the Respondent No.2-State. Perused entire
record and the Affidavit in Reply filed by the Superintendent of Police, N.I.A.
Mumbai Branch.
5) Dr.Chaudhry, learned counsel for the Appellant submitted that,
the Appellant is seeking his enlargement on Bail mainly on the ground of
prolonged incarceration at pretrial stage or without trial and not on merits.
He submitted that, the co-accused i.e. Sudhir Dhawale (A-1) and Rona
Wilson (A-2) have been released on Bail on the said ground by this Court. He
submitted that, as of today 9 accused persons in the said crime have been
granted bail either by the Hon'ble Supreme Court or by the High Court and
therefore the Appellant is entitled to be released on bail on the ground of
parity also.
Dr. Chaudhry, submitted that, the Appellant as of today is 54
years old. That, he is a distinguished scholar in the filed of linguistics with a
doctorate from the Central Institute of English and Foreign Languages,
Hyderabad. That, at the time of his arrest the Appellant was a Professor at
Delhi University. The Appellant has no criminal antecedent at his discredit.
Dr.Chaudhry, submitted that, the charge-sheet/record of the present case is
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voluminous, having about 20000 pages in 54 volumes. The prosecution has
cited approximately 363 witnesses in support of its case. The discharge
application filed by the Appellant is pending for adjudication before the trial
Court for more than 3 years. He submitted that, the Advocate for the
Appellant initially advanced his arguments on discharge Application on 15 th
December, 2022 i.e. about 2 years and 9 months ago. That, the said
Application was reargued on 19 th June 2025, after change of the learned
Special Judge. The prosecution is yet to reply on the said application for
discharge. He submitted that, the trial of the present case will take
substantially long period and may be a decade to complete. He submitted
that, the Hon'ble Supreme Court by its Order dated 18 th August 2022, in the
case of Vernon Vs. State of Maharashtra, Petition(s) for Special Leave to
Appeal (Cri.) No(s).5423 of 2022, had initially directed the learned Judge of
the trial Court to decide the Applications for discharge within 3 months from
passing of the said Order, however the same could not be done. That, the
learned Judge of the trial Court thereafter sought extension of one year for
deciding the said Applications, however till date the application for discharge
of the Appellant is not decided. He therefore submitted that, the Appellant be
released on bail during the pendency of the trial on the afore-noted grounds.
6) Mr.Singh, learned Additional Solicitor General of India
submitted that, merely because the Appellant is behind bars for about 5 years
and 3 months itself cannot be a ground for releasing him on Bail. He
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submitted that, in the case of co-accused Vernon, the Hon'ble Supreme Court
has also considered the merits of the matter. That, the co-accused who have
been released on bail either by Hon'ble Supreme Court or by this Court had
approximately completed 6 years and therefore the principle of parity cannot
be made applicable to the Appellant who is yet to complete the said period.
Mr. Singh submitted that, mere prolonged incarceration itself is not a ground
for granting bail and an application for bail must be considered on merits
also. He submitted that, in the case of Gurwinder Singh Vs. State of Punjab
and Another, reported in 2024 SCC OnLine SC 109, wherein also the
provisions of UAPA Act were invoked, the Hon'ble Supreme Court has
considered the said aspect. Mr. Singh further submitted that, the Appellant
has yet not reached the stage as contemplated under Section 436-A of the
Cr.P.C. i.e. he has not yet undergone 50% of sentence and therefore also the
Appellant may not be released on Bail on the ground of prolonged
incarceration at pretrial stage. He therefore requested this Court to dismiss
the Appeal.
7) In rejoinder to the arguments advanced by the learned
Additional Solicitor General, Dr. Chaudhry for the Appellant submitted that,
the Hon'ble Supreme Court in the case of Sheikh Javed Iqbal @ Ashfaq
Ansari @ Javed Ansari Vs. State of Uttarpradesh, Criminal Appeal No.2790 of
2024, dated 18th July, 2024, has distinguished its decision in the case of
Gurwinder Singh (supra) and therefore placing reliance on the case of
KSG APEALST-12301-24.doc
Gurwinder Singh (supra) by the prosecution is of no avail to the Respondent
No.1.
8) Perusal of entire record clearly indicates that, the Appellant was
arrested on 14th April, 2020 and as of today is in pretrial incarceration for
more than 5 years and 7 months. The prosecution has cited about 363
witnesses in support of its case. The record/charge-sheet of the case is of
20000 pages. As submitted by the learned counsel for the Appellant, the
discharge Application of the Appellant is pending for final adjudication for
last about 3 years and therefore the charge is yet to be framed against him.
9) It be noted here that, the co-accused namely Sudhir Dhawale (A-
1) and Rona Wilson (A-2) have been granted Bail by this Court pre-
dominently on the ground of prolonged incarceration without trial and
therefore the Appellant is entitled to claim parity with the said two accused.
Record further indicates that, three other accused persons have been granted
bail either by the Hon'ble Supreme Court or by this Court on merits also. As
of today more than 9 accused persons in the said crime have been released
on bail.
10) A three Judge Bench of the Hon'ble Supreme Court in the case
of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713 , in
paragraph Nos. 10, 11, 12, 15 and 17 has held as under:
" 10. 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
KSG APEALST-12301-24.doc
whether 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 course without addressing the
statutory embargo created by Section 43-D(5) of UAPA.
11. 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 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: (SCC p. 622
para 10)
"10. Bearing in mind the nature of the crime and the need to
protect the society and the nation, TADA has prescribed in
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 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
perforce remain in jail, giving rise to possible situations that may
justify invocation of Article 21."
(emphasis supplied)
12. Even in the case of special legislations like the Terrorist and
Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs
and Psychotropic Substances Act, 1985 ("the NDPS Act" ) which
too have somewhat rigorous conditions for grant of bail, this Court
in Paramjit Singh v. State (NCT of Delhi), Babba v. State of
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Maharashtra and Umarmia alias Mamumia v. State of Gujarat
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.
15. This Court has clarified in numerous judgments that 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 a speedy trial. In Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners) v. Union of India,
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 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. It is thus clear to us that the presence of statutory restrictions like
Section 43-D(5) of the UAPA per se does not oust the ability of the
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,
KSG APEALST-12301-24.doc
the courts are 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 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."
10.1) In the case of Javed Gulam Nabi Shaikh Vs. State of Maharashtra
and Another, Criminal Appeal No.2787 of 2024, dated 3 rd July, 2024, while
considering the Application for Bail of the Appellant therein, who was facing
prosecution under the provisions of the Unlawful Activities (Prevention) Act
1967, in paragraph Nos.18, 19 and 20 the Hon'ble Supreme Court has held
as under :-
"18. Criminals are not born out but made. The human
potential in everyone is good and so, never write off any
criminal as beyond redemption. This humanist fundamental is
often missed when dealing with delinquents, juvenile and adult.
Indeed, every saint has a past and every sinner a future. When a
crime is committed, a variety of factors is responsible for making
the offender commit the crime. Those factors may be social and
economic, may be, the result of value erosion or parental
neglect; may be, because of the stress of circumstances, or the
manifestation of temptations in a milieu of affluence contrasted
with indigence or other privations.
19. If the State or any prosecuting agency including the
court concerned has no wherewithal to provide or protect the
KSG APEALST-12301-24.doc
fundamental right of an accused to have a speedy trial as
enshrined under Article 21 of the Constitution then the State or
any other prosecuting agency should not oppose the plea for bail
on the ground that the crime committed is serious. Article 21 of
the Constitution applies irrespective of the nature of the crime.
20. We may hasten to add that the petitioner is still an
accused; not a convict. The over-arching postulate of criminal
jurisprudence that an accused is presumed to be innocent until
proven guilty cannot be brushed aside lightly, howsoever
stringent the penal law may be."
10.2) The Hon'ble Supreme Court in the case of Sheikh Javed Iqbal @
Ashfaq Ansari @ Javed Ansari Vs. State of Uttarpradesh, Criminal Appeal
No.2790 of 2024, dated 18th July, 2024, has distinguished its decision in the
case of Gurwinder Singh (supra). In paragraph Nos.31 and 32 of the said
decision the Hon'ble Supreme Court has held as under :
31. In Gurwinder Singh (supra) on which reliance has
been placed by the respondent, a two Judge Bench of this Court
distinguished K.A. Najeeb (supra) holding that the appellant in
K.A. Najeeb (supra) was in custody for five years and that the
trial of the appellant in that case was severed from the other co-
accused whose trial had concluded whereupon they were
sentenced to imprisonment of eight years; but in Gurwinder
Singh, the trial was already underway and that twenty two
witnesses including the protected witnesses have been
examined. It was in that context, the two Judge Bench of this
Court in Gurwinder Singh observed that mere delay in trial
pertaining to grave offences cannot be used as a ground to grant
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bail.
32. This Court has, time and again, emphasized that
right to life and personal liberty enshrined under Article 21 of
the Constitution of India is overarching and sacrosanct. A
constitutional court cannot be restrained from granting bail to
an accused on account of restrictive statutory provisions in a
penal statute if it finds that the right of the accused-undertrial
under Article 21 of the Constitution of India has been infringed.
In that event, such statutory restrictions would not come in the
way. Even in the case of interpretation of a penal statute,
howsoever stringent it may be, a constitutional court has to lean
in favour of constitutionalism and the rule of law of which
liberty is an intrinsic part. In the given facts of a particular case,
a constitutional court may decline to grant bail. But it would be
very wrong to say that under a particular statute, bail cannot be
granted. It would run counter to the very grain of our
constitutional jurisprudence. In any view of the matter, K.A.
Najeeb (supra) being rendered by a three Judge Bench is
binding on a Bench of two Judges like us.
11) It is thus clear that, the reliance placed by Mr.Singh on the
decision of Gurwinder Singh (supra), is of no avail to the prosecution as the
said decision has been distinguished by the Hon'ble Supreme Court in a
subsequent decision in the case of Sheikh Javed Iqbal (supra).
It be noted here that, it is by now a well settled and recognized
principle of law that, prolonged incarceration without trial amounts to
infringement of right of an accused enshrined under Article 21 of the
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Constitution of India. The prolonged incarceration and unlikelihood of the
trial being completed in reasonable time or near future, necessitates a
consequential release of the under trial on Bail.
12) As noted above, the Appellant is already in pretrial incarceration
for more than 5 years and 7 months as of today. Taking into consideration
the ratio laid by the Hon'ble Supreme Court in afore-noted decisions and in
particular enunciated in the case of Union of India Vs. K.A. Najeeb (supra),
in our opinion, the Appellant can be enlarged on bail during the pendency of
his trial.
13) Hence, following Order :-
(i) The impugned Order passed below Exh.535 in Special
Case No.414 of 2020 is set aside.
(ii) Appellant is directed to be released on bail in Special Case
No.414 of 2020 arising out of C.R. No.4 of 2018 originally
registered with Vishrambaug Police Station, Pune and
subsequently investigated by Respondent N.I.A. pending on the
file of learned Special Judge, NIA, City Civil and Sessions Court,
Greater Mumbai on his executing P.R. bond in the sum of
Rs.1,00,000/- with one or more solvent local sureties to make up
the amount;
(iii) Before his release from jail, the Appellant shall inform the
NIA, Mumbai so also to the trial Court, his prospective place of
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residence.;
(iv) Appellant shall surrender his passport, if having or in his
possession, before the trial Court, before his release from Jail.
(v) Appellant shall also provide his mobile and/or landline
number to NIA, Mumbai and to the trial Court, on which he can
be contacted;
(vi) Till the Appellant complies with the aforesaid conditions
No.(ii) to (v), the Appellant is permitted to furnish cash surety
of Rs.1,00,000/- before the trial Court.
(vii) After the Appellant complies with the afore-noted
condition Nos. (ii) to (v) above, the Appellant is entitled for
return of the said cash security amount from the trial Court.
(viii) After his release from jail, the Appellant shall attend the
office of NIA, Mumbai on every first Monday of every calender
month between 11.00 a.m. and 1.00 p.m. and shall mark his
presence till the conclusion of trial;
(ix) Appellant shall not leave the territorial jurisdiction of this
Court without prior permission of the learned Special Judge,
NIA, City Civil and Sessions Court, Greater Mumbai seized of
Special Case No.414 of 2020;
(x) Appellant shall attend all the dates before the trial Court
unless precluded on medical grounds.
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(xi) Appellant shall not tamper with the prosecution witnesses
and/or evidence in any manner;
13.1) Appeal is allowed in the aforesaid terms.
14) At this stage, Mr.Singh, learned Additional Solicitor General
requested this Court to stay the operation and implementation of the present
Order to enable Respondent No.1, to test its correctness before the Apex
Court.
14.1) Taking into consideration the fact that, as of today, the Appellant
is in pretrial incarceration for more than 5 years and 7 months, the prayer of
stay is rejected.
15) All the concerned to act on an authenticated copy of this
Judgment.
( RANJITSINHA RAJA BHONSALE, J. ) ( A.S. GADKARI, J. )
KIRAN
SANJAY
GHUGE
