Delhi High Court
Mohd. Hakim vs State on 6 October, 2021
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 6th October 2021
+ CRL.A. 170/2021
MOHD HAKIM ..... Appellant
Through: Ms. Nitya Ramakrishnan, Sr.
Advocate with Ms. Warisha Farasat,
Ms. Vinoothna Vinjam & Mr.
Shourya Dasgupta, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Amit Chadha, APP for the State.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI, J.
Brief Background
The appellant is an accused facing trial in cases arising from FIR Nos.
130/2008, 166/2008, 293/2008, 418/2008, and 419/2008 dated 13.09.2008
all of which now stand transferred to P.S.: Special Cell, New Delhi. The
appellant has been in judicial custody/police custody since 04.02.2009 i.e.,
for a period of more than 12½-years as of date.
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2. By way of the present appeal filed under section 21(4) of the National
Investigation Agency Act, 2008 („N.I.A. Act‟) the appellant impugns
order dated 20.03.2021 made by the learned Additional Sessions
Judge, Patiala House Courts, New Delhi („ASJ‟) rejecting his bail
application in the above referred FIRs inter alia registered under
sections 120B, 121, 121A, 122 and 123 of the Indian Penal Code,
1860 („IPC‟), sections 4 and 5 of the Explosive Substances Act, 1908
and sections 16, 18 and 23 of the Unlawful Activities (Prevention)
Act, 1967 („UAPA‟).
3. The appellant has filed written submissions dated 22.07.2021 as also a
short summary of arguments dated 05.08.2021; and the State has filed
status report dated 25.05.2021, setting-out their respective contentions
in the matter.
Appellant's Submissions
4. Ms. Nitya Ramakrishnan, learned Senior Counsel appearing on behalf
of the appellant has made the following principal submissions before
this court:
(a) That there are some 16 accused persons in the FIR and in
the chargesheet and supplementary chargesheets filed in the
cases, but a perusal of the chargesheet filed by the Special Cell,
Delhi Police on 27.02.2009 and the charges framed by the
learned ASJ on 06.05.2011, only a limited role has been
ascribed to the appellant in the offences alleged, namely, that
he had carried a certain quantity of cycle ball-bearings from
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Lucknow to Delhi, which, according to the allegations, were
subsequently used to make Improvised Explosive Devices
(IEDs), which were employed in the series of bomb blasts that
occurred in Delhi in 2008. It is submitted that though 08
chargesheets/supplementary chargesheets have been filed in the
matter, no further specific role has been ascribed to the
appellant beyond what is alleged in the original chargesheet;
(b) That the appellant had moved a bail plea before the
learned Trial Court in 2016, at which stage he had undergone
about 07 years of custody; but the learned Trial Court had
rejected that bail application vidé order dated 19.09.2016 on the
purported reasoning that the nature and gravity of the offences
alleged and the severity of punishment in the event of
conviction "cannot be countenanced"; that the matter was at the
stage of trial and about 213 witnesses had been examined
whereas other witnesses were yet to be examined; and that the
bail application of a co-accused had already been dismissed.
The learned Trial Court had further observed that there was
prima facie material indicating involvement inter alia of the
appellant; and that a detailed examination of evidence was to be
avoided at the stage of considering bail, for which reason there
was no merit in the bail application and the same was
dismissed;
(c) That subsequently, the appellant also moved this court
vidé Bail Appl. No. 2288/2016, which was dismissed as
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withdrawn vidé order dated 10.01.2017 recorded by the learned
single Judge of this court;
(d) That considering that the trial continues to be at the stage
of prosecution evidence, with 256 witnesses having been
examined, but more than 60 witnesses still left to be examined;
and the appellant having already spent more than 12 years in
custody, the appellant moved a fresh Bail Application dated
25.02.2021 before the learned ASJ premised on the principles
laid down by the Hon‟ble Supreme Court in Union of India vs
K.A. Najeeb1, arguing that the appellant‟s case is on all fours
with that of the case in K.A. Najeeb (supra), in view of which
the rigours of section 43-D(5) of the UAPA would not apply;
and the appellant is entitled to be enlarged on bail during the
pendency of trial. It is this application which was dismissed by
the learned ASJ vidé order dated 20.03.2021, rejecting the
appellant‟s bail plea;
(e) That the appellant‟s right to a speedy trial, as read into
Article 21 of the Constitution of India, is being violated; and
the appellant deserves to be released on regular bail during the
pendency of the trial; and
(f) That at the relevant time the appellant was a university
student; that he has no criminal antecedents; he is not
(2021) 3 SCC 713
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implicated in any other criminal case; and is not required for
any other investigation.
Respondent's Submissions
5. Opposing the grant of regular bail, Mr. Amit Chaddha, learned
Additional Public Prosecutor appearing on behalf of the State/N.I.A.
has submitted as follows :
(a) That the offences with which the appellant is charged are
grave and heinous, concerning the serial bomb blasts that
occurred in different places in Delhi on 13.09.2008, in which
some 26 people died and 135 were injured, and the
responsibility for such serial blasts was taken by a terrorist
outfit called „Indian Mujahideen‟;
(b) That in connection with the serial bomb blasts, 05 FIRs
were registered at various police stations; and in fact, in
subsequent raids conducted by the Special Cell of the Delhi
Police at certain premises in Batla House, Delhi to apprehend
suspected militants, 02 police officers sustained injuries; 01
inspector of the Delhi Police died; and a cache of arms and
ammunition was recovered;
(c) That steel ball-bearings were also recovered along with
other incriminating material from the Batla House premises
during the search;
(d) That the involvement of the appellant, Mohd. Hakim, in
the serial blasts was disclosed for the first time by another
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arrested accused, Zeeshan Ahmad alias Anda in his disclosure
statement dated 03.10.2008; as a consequence of which the
appellant was arrested some 03 months later by the Anti-
Terrorist Squad (ATS)/Lucknow, Uttar Pradesh; whereupon the
appellant disclosed his involvement in the serial bomb blasts of
13.09.2008;
(e) That disclosure statement dated 12.01.2009 made by the
appellant; and a detailed reading of the allegations contained in
the chargesheet; the statement recorded under section 161
Cr.P.C.; as also other disclosure statements and material,
clearly disclose the involvement of the appellant in the ghastly
terrorist act of serial bomb blasts in Delhi in September 2008;
and he is likely to be awarded the death penalty for the offences
charged;
(f) That as per the decision of the Hon‟ble Supreme Court in
National Investigation Agency vs Zahoor Ahmad Shah
Watali2, this court is enjoined not to enter upon the merits or
demerits of the evidence in a case and to decline bail in view of
section 43-D (5) of UAPA.
(g) That the present matter is also on the same lines as was
the case decided by a Division Bench of this court in Ghulam
(2019) 5 SCC 1
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Mohd. Bhat vs National Investigating Agency 3 , where bail
was denied to the undertrial;
(h) That regardless of the length of incarceration of the
appellant and regardless of whether or not trial is likely to be
completed within a reasonable period of time, the decision of
the Hon‟ble Supreme Court in K.A. Najeeb (supra) does not
water down the mandate of the verdict in Watali (supra);
(i) That the learned APP has also pointed-out that the
appellant‟s jail conduct has been „unsatisfactory‟ as reflected in
the nominal roll.
(j) That in any case, the High Court cannot exercise its
extraordinary powers under Article 226 of the Constitution in
proceedings which arise by way of an appeal under section
21(4) of the N.I.A. Act.
Discussion
6. After giving our careful and anxious consideration to the submissions
made on behalf of the appellant and the State, in our view, the
relevant considerations for disposal of the present appeal are the
following :
(a) The specific charge framed against the appellant by the
learned ASJ on 06.05.2011, reads as under :
(2019) SCC Online Del 9431
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"...you accused Mohd. Hakim (A-8) brought cycle steel ball-
bearings from Lucknow to Delhi in between 8 to 12
September, 2008 for making IEDs,..."
The appellant has been charged with the above role in the
context of the offence of criminal conspiracy under section
120B IPC;
(b) The charge framed against the appellant vidé order dated
06.05.2011 aforesaid has not been challenged, either by way of
the present appeal or otherwise, neither by the appellant nor by
the State;
(c) Though stressing that the appellant has been charged
with the offence of criminal conspiracy under section 120B IPC
in the context of an alleged conspiracy to wage war against the
Government of India by causing serial bomb blasts in various
cities, including the capital, as envisaged under sections 121
and 121A IPC, the State has not drawn our attention to, nor
have we been able to discern any specific or particularised
allegation against the appellant in the chargesheet or in the
order framing charge that could relate to the offences under
sections 121 or 121A IPC;
(d) Be that as it may, in our view, once charges have been
framed against the appellant by the trial court for offences
under UAPA and the charges so framed have not been
challenged in appropriate proceedings, either by the accused
or by the State, the bar engrafted in the proviso to section 43-
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D(5), as expatiated upon by the Hon‟ble Supreme Court in
Watali (supra), would operate. That is to say, once charges
have been framed, the question whether in the opinion of this
court, there are reasonable grounds for believing that the
accusations against the accused are prima facie true, does not
arise since the trial court has, by framing charges under UAPA,
already found prima facie material against the accused; which
findings of the learned trial court are not challenged before this
court; and
(e) Learned senior counsel for the appellant has also referred
briefly to section 436A Cr.P.C., which, it is contended, entitles
an accused to be enlarged on bail if the accused has undergone
more than half of the maximum period of imprisonment
specified for that offence. In our opinion, though section 436A
Cr.P.C. in its terms does not apply to this case, since „death‟ is
one of the punishments specified for the offences with which
the appellant is charged, in our reading of section 436A
Cr.P.C., that provision only creates a right in an
accused/undertrial that "he shall be released by the Court" on
bail if he has undergone detention of at least one-half of the
maximum sentence specified for the offence; but section 436A
does not create any bar on releasing an undertrial on bail if he
has undergone imprisonment of one-half or more of the
maximum period of sentence, even if one of the punishments
specified for the offence is a death sentence. Much less is there
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any bar on releasing such an undertrial on bail, to preserve his
right to a speedy trial under Article 21 on the principles of K.A.
Najeeb (supra). We may point-out that section 436A Cr.P.C. in
any case suffers from faulty drafting since, curiously, the words
used in the provision are " ... undergone detention for a period
extending up to one-half of the maximum period of
imprisonment ...", which, if applied literally, would mean that
an undertrial should have undergone any period of detention of
less than half of the maximum sentence, to be entitled to bail;
and, as a sequitur, that this provision would not be of aid to an
undertrial who has undergone imprisonment of more than half
of the maximum period of imprisonment, which is completely
contrary to the intent and purpose of the provision.
7. In the opinion of this court, there are two separate approaches to
considering the grant or denial of bail in cases where the UAPA
applies.
8. One approach, is for the court to apply the provisions of section 43-
D(5) of the UAPA, as interpreted by the Hon‟ble Supreme Court in
Watali (supra).
9. The second approach is, for the court to draw upon the principles
relating to right to a fair trial read into Article 21 of the Constitution,
as explained by the Hon‟ble Supreme Court in K.A. Najeeb (supra)
notwithstanding the general considerations for bail under the Cr.P.C.
and the additional conditions engrafted under the UAPA.
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10. In the present case, considering that the charge framed against the
appellant has not been challenged, neither by the appellant nor even
by the State, in our view, the enquiry under Article 21 would come
into play notwithstanding the provisions of section 43D(5) of UAPA
in light of the dictum in K.A. Najeeb (supra), since an opinion has
already been formed by the trial court believing that the accusations
against the appellant are prima face true, which opinion is not assailed
before us.
11. In fact, the respondent‟s contention premised on the decision of a
Division Bench of this court in Ghulam Mohd. Bhat (supra), to which
decision one of us, namely Siddharth Mridul J. was a party, is also
answered, since that case was decided looking into its merits; and in
that case two of the accused persons had already pleaded guilty after
charges had been framed, and the charges framed had not been
challenged before the Division Bench. Most importantly, at the time
Ghulam Mohd. Bhat (supra) was decided, the verdict of the Hon‟ble
Supreme Court in K.A. Najeeb (supra) had not been rendered.
12. As will be seen from what follows, in the present case this court is
persuaded to adopt the second approach, namely of enforcing the
constitutional rights of an undertrial derived from Article 21 of our
Constitution, based on the principles explained by the Hon‟ble
Supreme Court in K.A. Najeeb (supra).
13. Accordingly, in our view, the present appeal has, and can only have
been premised on the principles laid down by the Hon‟ble Supreme
Court in K.A. Najeeb (supra), which are founded on the right to a
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speedy trial, read into the right to life contained in Article 21 of our
Constitution.
14. In K.A. Najeeb (supra) a 3-Judge Bench of the Hon‟ble Supreme
Court has inter alia held as follows:
"17. ...at commencement of proceedings, 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...
*****
"19. 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 Act.
Unlike the NDPS Act 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 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."
(emphasis supplied)
15. It is also important to briefly note the factual background and conduct
of the accused in K.A. Najeeb (supra), which may be gathered from
the following observations of the Kerala High Court in its judgment
that subsequently came-up before the Hon‟ble Supreme Court :
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KA Najeeb vs Union of India : Crl MA 34/2019 in Crl A 659/2019
decided on 23.07.2019 by the Kerala High Court :
" .... This appeal is filed by the 5th accused in SC No.1/2015 of the
Special Court for the Trial of NIA Cases, Ernakulam challenging
order dated 17/4/2019 in Crr.M.P.No.34/2019. Application is filed
by the filed by the 5th accused/appellant seeking bail. The Special
Court found that materials produced by the prosecution clearly
reveal that, the petitioner had a major role in the criminal
conspiracy. Along with the 3rd accused M.K.Nasar, petitioner was
involved in the conspiracy of arranging a vehicle and also had role
in other activities like dropping the accused persons at the scene of
occurrence, helping them to escape after commission of the crime
etc. That apart, he was absconding since the occurrence of the
crime and was apprehended only on 12/4/2015. The NIA Court
also placed reliance on the bar u/s 43D of the Unlawful Activities
(Prevention) Act while denying bail. In fact, it was the third
application that the accused was filing seeking bail. Two earlier
applications filed by the same accused were dismissed as per order
dated 1/6/2016 in Crl. Appeal No.377/2015 and order dated
1/8/2018 in Crl Appeal No.759/2018. ...
*****
"4. The only question to be considered is for lapse of time and
delay in conducting trial, whether the accused should be granted
bail or not. Of course this is a case in which the accused was
absconding, but he was apprehended as early as on 12/4/2015.
Even now, the trial has not started. The reason submitted by the
learned counsel on either side is that the case records are before
this Court which were called for in appeals filed by NIA as well as
the accused with reference to other accused who had faced trial in
the case. Though those appeals are listed for hearing for quite
some time, the hearing has not taken place.
"5. Confining a person as an under trial prisoner for a
substantially long period without there being no chance of the
case being taken for trial in the immediate future, will cause
substantial prejudice and suffering to the accused. In this case, the
allegation is that the accused had arranged vehicle for the accused
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who had committed the overt acts to reach the scene of crime and
to escape from there. He is also accused of having being part of a
conspiracy along with the other accused. Even the National
Investigating Agency Act, 2008 had made provisions for expeditious
trial of cases and Special Courts had been formed only for the said
purpose. Even the appeals filed before this Court shall as far as
possible shall be disposed of within three months. Such being the
situation, the accused remaining as an under trial prisoner has
become a never ending affair and therefore, we are of the view
that the accused should be released on. bail. Learned Special
Prosecutor, however would contend that if the accused is released
on bail, he will continue his nefarious activities and try to instigate
others in carrying out their anti-social schemes and may also
influence the witnesses. Most of the witnesses had already been
examined when other accused in the case faced trial and even at
that stage, several of them had turned hostile to the prosecution."
(emphasis supplied)
16. Though the appellant has placed reliance essentially on K.A Najeeb
(supra), judicial decisions on the right to speedy trial and the grant of
bail upon considerations of Article 21, date back much earlier,
wherein our courts have consistently emphasized on the significance
of speedy trial and the consequences of its denial. Reference to some
of those decisions would be in order at this point, since they discuss
the law on this point in all its facets.
17. One of the earliest expositions of the necessity and concept of speedy
trial is found in the seminal judgment of a 3-Judge Bench of the
Hon‟ble Supreme Court in Hussainara Khatoon (I) vs Home
Secretary, State of Bihar 4 , where the Hon‟ble Supreme Court
(1980) 1 SCC 81
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deprecated the delay in commencement of trials, which would apply
equally to long pendency of trials; and observed how "unnecessarily
prolonged detention in prison of undertrials before being brought to
trial, is an affront to all civilised norms of human liberty". Justice
P.N. Bhagwati (as he then was) had this to say :
"5. There is also one other infirmity of the legal and judicial
system which is responsible for this gross denial of justice to the
undertrial prisoners and that is the notorious delay in disposal of
cases. It is a sad reflection on the legal and judicial system that the
trial of an accused should not even commence for a long number
of years. Even a delay of one year in the commencement of the
trial is bad enough : how much worse could it be when the delay is
as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the
essence of criminal justice and there can be no doubt that delay in
trial by itself constitutes denial of justice. It is interesting to note
that in the United States, speedy trial is one of the constitutionally
guaranteed rights. The Sixth Amendment to the Constitution
provides that:
"In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial."
So also Article 3 of the European Convention on Human Rights
provides that:
"Every one arrested or detained . . . shall be entitled to
trial within a reasonable time or to release pending
trial."
We think that even under our Constitution, though speedy trial is
not specifically enumerated as a fundamental right, it is implicit in
the broad sweep and content of Article 21 as interpreted by this
Court in Maneka Gandhi v. Union of India[(1978) 1 SCC 248 :
(1978) 2 SCR 621] . We have held in that case that Article 21
confers a fundamental right on every person not to be deprived of
his life or liberty except in accordance with the procedure
prescribed by law and it is not enough to constitute compliance with
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the requirement of that article that some semblance of a procedure
should be prescribed by law, but that the procedure should be
"reasonable, fair and just". If a person is deprived of his liberty
under a procedure which is not "reasonable, fair or just", such
deprivation would be violative of his fundamental right under
Article 21 and he would be entitled to enforce such fundamental
right and secure his release. Now obviously procedure prescribed
by law for depriving a person of liberty cannot be "reasonable, fair
or just" unless that procedure ensures a speedy trial for
determination of the guilt of such person. No procedure which
does not ensure a reasonably quick trial can be regarded as
"reasonable, fair or just" and it would fall foul of Article 21. There
can, therefore, be no doubt that speedy trial, and by speedy trial we
mean reasonably expeditious trial, is an integral and essential part
of the fundamental right to life and liberty enshrined in Article 21.
The question which would, however, arise is as to what would be the
consequence if a person accused of an offence is denied speedy trial
and is sought to be deprived of his liberty by imprisonment as a
result of a long delayed trial in violation of his fundamental right
under Article 21. Would he be entitled to be released
unconditionally freed from the charge levelled against him on the
ground that trying him after an unduly long period of time and
convicting him after such trial would constitute violation of his
fundamental right under Article 21. That is a question we shall have
to consider when we hear the writ petition on merits on the
adjourned date. ...."
(emphasis supplied)
In the opening paragraph of his concurring opinion in the case Justice
R.S. Pathak (as he then was) said :
"It is indisputable that an unnecessarily prolonged detention in
prison of undertrials before being brought to trial is an affront to
all civilised norms of human liberty. Any meaningful concept of
individual liberty which forms the bedrock of a civilised legal
system must view with distress patently long periods of
imprisonment before persons awaiting trial can receive the
attention of the administration of justice. The primary principle of
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criminal law is that imprisonment may follow a judgment of guilt,
but should not precede it. ..."
(emphasis supplied)
18. In Supreme Court Legal Aid Committee (Representing Undertrial
Prisoners) vs Union of India5, the Hon‟ble Supreme Court dealt in
considerable detail with the issue of delay in trial and continued
incarceration of undertrials pending trial and had this to say:
"15. ... In substance the petitioner now prays that all undertrials
who are in jail for the commission of any offence or offences under
the Act for a period exceeding two years on account of the delay in
the disposal of cases lodged against them should be forthwith
released from jail declaring their further detention to be illegal and
void and pending decision of this Court on the said larger issue,
they should in any case be released on bail. It is indeed true and
that is obvious from the plain language of Section 36(1) of the Act,
that the legislature contemplated the creation of Special Courts to
speed up the trial of those prosecuted for the commission of any
offence under the Act. It is equally true that similar is the objective
of Section 309 of the Code. It is also true that this Court has
emphasised in a series of decisions that Articles 14, 19 and 21
sustain and nourish each other and any law depriving a person of
"personal liberty" must prescribe a procedure which is just, fair
and reasonable, i.e., a procedure which promotes speedy trial. .......
Now to refuse bail on the one hand and to delay trial of cases on
the other is clearly unfair and unreasonable and contrary to the
spirit of Section 36(1) of the Act, Section 309 of the Code and
Articles 14, 19 and 21 of the Constitution. We are conscious of the
statutory provision finding place in Section 37 of the Act prescribing
the conditions which have to be satisfied before a person accused of
an offence under the Act can be released. Indeed we have adverted
to this section in the earlier part of the judgment. We have also kept
(1994) 6 SCC 731
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in mind the interpretation placed on a similar provision in Section
20 of the TADA Act by the Constitution Bench in Kartar Singh v.
State of Punjab [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] . Despite
this provision, we have directed as above mainly at the call of
Article 21 as the right to speedy trial may even require in some
cases quashing of a criminal proceeding altogether, as held by a
Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak
[(1992) 1 SCC 225 : 1992 SCC (Cri) 93], release on bail, which
can be taken to be embedded in the right of speedy trial, may, in
some cases be the demand of Article 21. As we have not felt
inclined to accept the extreme submission of quashing the
proceedings and setting free the accused whose trials have been
delayed beyond reasonable time for reasons already alluded to, we
have felt that deprivation of the personal liberty without ensuring
speedy trial would also not be in consonance with the right
guaranteed by Article 21. Of course, some amount of deprivation
of personal liberty cannot be avoided in such cases; but if the
period of deprivation pending trial becomes unduly long, the
fairness assured by Article 21 would receive a jolt.It is because of
this that we have felt that after the accused persons have suffered
imprisonment which is half of the maximum punishment provided
for the offence, any further deprivation of personal liberty would
be violative of the fundamental right visualised by Article 21,
which has to be telescoped with the right guaranteed by Article 14
which also promises justness, fairness and reasonableness in
procedural matters. What then is the remedy ? The offences under
the Act are grave and, therefore, we are not inclined to agree with
the submission of the learned counsel for the petitioner that we
should quash the prosecutions and set free the accused persons
whose trials are delayed beyond reasonable time. Alternatively he
contended that such accused persons whose trials have been
delayed beyond reasonable time and are likely to be further
delayed should be released on bail on such terms as this Court
considers appropriate to impose. This suggestion commends to us.
...........
(emphasis supplied)
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19. In its seminal ruling in P. Ramachandra Rao vs State of Karnataka6,
a 7-Judge Constitutional Bench of the Hon‟ble Supreme Court dwelt
into the issue of speedy trial and explained its genesis in Article 21 in
the following words :
"R.C. Lahoti, J. (for Bharucha, C.J., Quadri, J., himself and Hegde,
Ruma Pal and Pasayat, JJ.)-- No person shall be deprived of his
life or his personal liberty except according to procedure
established by law -- declares Article 21 of the Constitution. Life
and liberty, the words employed in shaping Article 21, by the
founding fathers of the Constitution, are not to be read narrowly
in the sense drearily dictated by dictionaries; they are organic
terms to be construed meaningfully. Embarking upon the
interpretation thereof, feeling the heart-throb of the preamble,
deriving strength from the directive principles of State policy and
alive to their constitutional obligation, the courts have allowed
Article 21 to stretch its arms as wide as it legitimately can. The
mental agony, expense and strain which a person proceeded
against in criminal law has to undergo and which, coupled with
delay, may result in impairing the capability or ability of the
accused to defend himself have persuaded the constitutional
courts of the country in holding the right to speedy trial a
manifestation of fair, just and reasonable procedure enshrined in
Article 21. Speedy trial, again, would encompass within its sweep
all its stages including investigation, inquiry, trial, appeal, revision
and retrial -- in short everything commencing with an accusation
and expiring with the final verdict -- the two being respectively
the terminus a quo and terminus ad quem -- of the journey which
an accused must necessarily undertake once faced with an
implication. The constitutional philosophy propounded as right to
speedy trial has though grown in age by almost two and a half
decades, the goal sought to be achieved is yet a far-off peak. Myriad
fact situations bearing testimony to denial of such fundamental right
(2002) 4 SCC 578
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to the accused persons, on account of failure on the part of
prosecuting agencies and the executive to act, and their turning an
almost blind eye at securing expeditious and speedy trial so as to
satisfy the mandate of Article 21 of the Constitution have persuaded
this Court in devising solutions which go to the extent of almost
enacting by judicial verdict bars of limitation beyond which the trial
shall not proceed and the arm of law shall lose its hold. In its zeal
to protect the right to speedy trial of an accused, can the court
devise and almost enact such bars of limitation though the
legislature and the statutes have not chosen to do so -- is a
question of far-reaching implications which has led to the
constitution of this Bench of seven-Judge strength.
*****
"8. The width of vision cast on Article 21, so as to perceive its broad
sweep and content, by the seven-Judge Bench of this Court in
Maneka Gandhi v. Union of India [(1978) 1 SCC 248] inspired a
declaration of law, made on 12-2-1979 in Hussainara Khatoon (I) v.
Home Secy., State of Bihar [(1980) 1 SCC 81 : 1980 SCC (Cri) 23]
that Article 21 confers a fundamental right on every person not to
be deprived of his life or liberty, except according to procedure
established by law; that such procedure is not some semblance of a
procedure but the procedure should be "reasonable, fair and just";
and therefrom flows, without doubt, the right to speedy trial. The
Court said (SCC p. 89, para 5)--
"No procedure which does not ensure a reasonably
quick trial can be regarded as 'reasonable, fair or
just' and it would fall foul of Article 21. There can,
therefore, be no doubt that speedy trial, and by speedy
trial we mean reasonably expeditious trial, is an
integral and essential part of the fundamental right to
life and liberty enshrined in Article 21."
Many accused persons tormented by unduly lengthy trial or criminal
proceedings, in any forum whatsoever were enabled, by Hussainara
Khatoon (I) [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] statement of
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law, in successfully maintaining petitions for quashing of charges,
criminal proceedings and/or conviction, on making out a case of
violation of Article 21 of the Constitution. ... The proponents of
right to speedy trial strongly urged before this Court for taking one
step forward in the direction and prescribing time-limits beyond
which no criminal proceeding should be allowed to go on,
advocating that unless this was done, Maneka Gandhi [(1978) 1
SCC 248] and Hussainara Khatoon (I) [(1980) 1 SCC 81 : 1980
SCC (Cri) 23] exposition of Article 21 would remain a mere illusion
and a platitude. Invoking of the constitutional jurisdiction of this
Court so as to judicially forge two termini and lay down periods of
limitation applicable like a mathematical formula, beyond which a
trial or criminal proceeding shall not proceed, was resisted by the
opponents submitting that the right to speedy trial was an
amorphous one, something less than other fundamental rights
guaranteed by the Constitution. The submissions made by
proponents included that the right to speedy trial flowing from
Article 21 to be meaningful, enforceable and effective ought to be
accompanied by an outer limit beyond which continuance of the
proceedings will be violative of Article 21. It was submitted that
Section 468 of the Code of Criminal Procedure applied only to
minor offences but the court should extend the same principle to
major offences as well. It was also urged that a period of 10 years
calculated from the date of registration of crime should be placed as
an outer limit wherein shall be counted the time taken by the
investigation.
"9. The Constitution Bench, in A.R. Antulay case [(1992) 1 SCC 225
: 1992 SCC (Cri) 93] , heard elaborate arguments. The Court, in its
pronouncement, formulated certain propositions, 11 in number,
meant to serve as guidelines. It is not necessary for our purpose to
reproduce all those propositions. Suffice it to state that in the
opinion of the Constitution Bench (i) fair, just and reasonable
procedure implicit in Article 21 of the Constitution creates a right
in the accused to be tried speedily; (ii) right to speedy trial flowing
from Article 21 encompasses all the stages, namely, the stage of
investigation, inquiry, trial, appeal, revision and retrial; (iii) who
is responsible for the delay and what factors have contributed
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towards delay are relevant factors. Attendant circumstances,
including nature of the offence, number of accused and witnesses,
the workload of the court concerned, prevailing local conditions
and so on -- what is called the systemic delays must be kept in
view; (iv) each and every delay does not necessarily prejudice the
accused as some delays indeed work to his advantage. Guidelines
(8), (9), (10) and (11) are relevant for our purpose and hence are
extracted and reproduced hereunder: (SCC pp. 272-73, para 86)
"(8) Ultimately, the court has to balance and weigh the
several relevant factors -- „balancing test' or
'balancing process‟ -- and determine in each case
whether the right to speedy trial has been denied in a
given case.
(9) Ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused has
been infringed the charges or the conviction, as the
case may be, shall be quashed. But this is not the only
course open. The nature of the offence and other
circumstances in a given case may be such that
quashing of proceedings may not be in the interest of
justice. In such a case, it is open to the court to make
such other appropriate order -- including an order to
conclude the trial within a fixed time where the trial
is not concluded or reducing the sentence where the
trial has concluded -- as may be deemed just and
equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any
time-limit for trial of offences. Any such rule is
bound to be a qualified one. Such rule cannot also be
evolved merely to shift the burden of proving
justification on to the shoulders of the prosecution. In
every case of complaint of denial of right to speedy
trial, it is primarily for the prosecution to justify and
explain the delay. At the same time, it is the duty of the
court to weigh all the circumstances of a given case
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before pronouncing upon the complaint. The Supreme
Court of USA too has repeatedly refused to fix any
such outer time-limit in spite of the Sixth
Amendment. Nor do we think that not fixing any
such outer limit ineffectuates the guarantee of right
to speedy trial.
(11) An objection based on denial of right to speedy
trial and for relief on that account, should first be
addressed to the High Court. Even if the High Court
entertains such a plea, ordinarily it should not stay
the proceedings, except in a case of grave and
exceptional nature. Such proceedings in High Court
must, however, be disposed of on a priority basis."
"10. During the course of its judgment also, the Constitution Bench
made certain observations which need to be extracted and
reproduced:
"83. But then speedy trial or other expressions
conveying the said concept -- are necessarily relative
in nature. One may ask -- speedy means, how
speedy? How long a delay is too long? We do not
think it is possible to lay down any time schedules for
conclusion of criminal proceedings. The nature of
offence, the number of accused, the number of
witnesses, the workload in the particular court, means
of communication and several other circumstances
have to be kept in mind. ... it is neither advisable nor
feasible to draw or prescribe an outer time-limit for
conclusion of all criminal proceedings. It is not
necessary to do so for effectuating the right to speedy
trial. We are also not satisfied that without such an
outer limit, the right becomes illusory." (SCC pp. 268-
69, para 83)
"[E]ven apart from Article 21 courts in this country
have been cognizant of undue delays in criminal
matters and wherever there was inordinate delay or
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where the proceedings were pending for too long and
any further proceedings were deemed to be oppressive
and unwarranted, they were put an end to by making
appropriate orders." (SCC p. 260, para 65)
(emphasis supplied)
*****
"21. Is it at all necessary to have limitation bars terminating trials
and proceedings ? Is there no effective mechanism available for
achieving the same end ? The Criminal Procedure Code, as it
stands, incorporates a few provisions to which resort can be had
for protecting the interest of the accused and saving him from
unreasonable prolixity or laxity at the trial amounting to
oppression. Section 309, dealing with power to postpone or adjourn
proceedings, provides generally for every inquiry or trial, being
proceeded with as expeditiously as possible, and in particular, when
the examination of witnesses has once begun, the same to be
continued from day to day until all the witnesses in attendance have
been examined, unless the court finds the adjournment of the same
beyond the following day to be necessary for reasons to be
recorded. Explanation 2 to Section 309 confers power on the court
to impose costs to be paid by the prosecution or the accused, in
appropriate cases, and putting the parties on terms while granting
an adjournment or postponing of proceedings. This power to impose
costs is rarely exercised by the courts. ... In appropriate cases,
inherent power of the High Court, under Section 482 can be
invoked to make such orders, as may be necessary, to give effect to
any order under the Code of Criminal Procedure or to prevent
abuse of the process of any court, or otherwise, to secure the ends of
justice. The power is wide and, if judiciously and consciously
exercised, can take care of almost all the situations where
interference by the High Court becomes necessary on account of
delay in proceedings or for any other reason amounting to
oppression or harassment in any trial, inquiry or proceedings. In
appropriate cases, the High Courts have exercised their jurisdiction
under Section 482 CrPC for quashing of first information report
and investigation, and terminating criminal proceedings if the case
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of abuse of process of law was clearly made out. Such power can
certainly be exercised on a case being made out of breach of
fundamental right conferred by Article 21 of the Constitution. The
Constitution Bench in A.R. Antulay case [(1992) 1 SCC 225 : 1992
SCC (Cri) 93] referred to such power, vesting in the High Court
(vide paras 62 and 65 of its judgment) and held that it was clear
that even apart from Article 21, the courts can take care of undue or
inordinate delays in criminal matters or proceedings if they remain
pending for too long and putting an end, by making appropriate
orders, to further proceedings when they are found to be oppressive
and unwarranted.
*****
"28. ... We have in the earlier part of this judgment extracted and
reproduced passages from A.R. Antulay case [(1992) 1 SCC 225 :
1992 SCC (Cri) 93] . The Constitution Bench turned down the
fervent plea of proponents of right to speedy trial for laying down
time-limits as bar beyond which a criminal proceeding or trial
shall not proceed and expressly ruled that it was neither advisable
nor practicable (and hence not judicially feasible) to fix any time-
limit for trial of offences. Having placed on record the exposition
of law as to right to speedy trial flowing from Article 21 of the
Constitution, this Court held that it was necessary to leave the rule
as elastic and not to fix it in the frame of defined and rigid rules. It
must be left to the judicious discretion of the court seized of an
individual case to find out from the totality of circumstances of a
given case if the quantum of time consumed up to a given point of
time amounted to violation of Article 21, and if so, then to terminate
the particular proceedings, and if not, then to proceed ahead. The
test is whether the proceedings or trial has remained pending for
such a length of time that the inordinate delay can legitimately be
called oppressive and unwarranted, as suggested inA.R. Antulay
[(1992) 1 SCC 225 : 1992 SCC (Cri) 93]. In Kartar Singh case
[(1994) 3 SCC 569 : 1994 SCC (Cri) 899] the Constitution Bench
while recognising the principle that the denial of an accused's
right of speedy trial may result in a decision to dismiss the
indictment or in reversing of a conviction, went on to state:
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"92. Of course, no length of time is per se too long to
pass scrutiny under this principle nor the accused is
called upon to show the actual prejudice by delay of
disposal of cases. On the other hand, the court has to
adopt a balancing approach by taking note of the
possible prejudices and disadvantages to be suffered
by the accused by avoidable delay and to determine
whether the accused in a criminal proceeding has
been deprived of his right of having speedy trial with
unreasonable delay which could be identified by the
factors -- (1) length of delay, (2) the justification for
the delay, (3) the accused's assertion of his right to
speedy trial, and (4) prejudice caused to the accused
by such delay." (SCC pp. 639-40, para 92)
"29. For all the foregoing reasons, we are of the opinion that in
Common Cause case (I) [(1996) 4 SCC 33 : 1996 SCC (Cri) 589]
[as modified in Common Cause (II) [(1996) 6 SCC 775 : 1997 SCC
(Cri) 42] ] and Raj Deo Sharma (I) [(1998) 7 SCC 507 : 1998 SCC
(Cri) 1692] and (II) [(1999) 7 SCC 604 : 1999 SCC (Cri) 1324] the
Court could not have prescribed periods of limitation beyond which
the trial of a criminal case or a criminal proceeding cannot
continue and must mandatorily be closed followed by an order
acquitting or discharging the accused. In conclusion we hold:
(1) The dictum in A.R. Antulay case [(1992) 1 SCC 225
: 1992 SCC (Cri) 93] is correct and still holds the
field.
(2) The propositions emerging from Article 21 of the
Constitution and expounding the right to speedy trial
laid down as guidelines in A.R. Antulay case [(1992) 1
SCC 225 : 1992 SCC (Cri) 93] adequately take care of
right to speedy trial. We uphold and reaffirm the said
propositions.
(3) The guidelines laid down in A.R. Antulay case
[(1992) 1 SCC 225 : 1992 SCC (Cri) 93] are not
exhaustive but only illustrative. They are not intended
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to operate as hard-and-fast rules or to be applied like
a straitjacket formula. Their applicability would
depend on the fact situation of each case. It is difficult
to foresee all situations and no generalization can be
made.
(4) It is neither advisable, nor feasible, nor judicially
permissible to draw or prescribe an outer limit for
conclusion of all criminal proceedings. The time-
limits or bars of limitation prescribed in the several
directions made in Common Cause (I) [(1996) 4 SCC
33 : 1996 SCC (Cri) 589] , Raj Deo Sharma (I)
[(1998) 7 SCC 507 : 1998 SCC (Cri) 1692] and Raj
Deo Sharma (II) [(1999) 7 SCC 604 : 1999 SCC (Cri)
1324] could not have been so prescribed or drawn and
are not good law. The criminal courts are not obliged
to terminate trial or criminal proceedings merely on
account of lapse of time, as prescribed by the
directions made in Common Cause case (I) [(1996) 4
SCC 33 : 1996 SCC (Cri) 589] , Raj Deo Sharma case
(I) [(1998) 7 SCC 507 : 1998 SCC (Cri) 1692] and (II)
[(1999) 7 SCC 604 : 1999 SCC (Cri) 1324] . At the
most the periods of time prescribed in those decisions
can be taken by the courts seized of the trial or
proceedings to act as reminders when they may be
persuaded to apply their judicial mind to the facts
and circumstances of the case before them and
determine by taking into consideration the several
relevant factors as pointed out in A.R. Antulay case
[(1992) 1 SCC 225 : 1992 SCC (Cri) 93] and decide
whether the trial or proceedings have become so
inordinately delayed as to be called oppressive and
unwarranted. Such time-limits cannot and will not by
themselves be treated by any court as a bar to further
continuance of the trial or proceedings and as
mandatorily obliging the court to terminate the same
and acquit or discharge the accused.
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(5) The criminal courts should exercise their available
powers, such as those under Sections 309, 311 and 258
of the Code of Criminal Procedure to effectuate the
right to speedy trial. A watchful and diligent trial
Judge can prove to be a better protector of such right
than any guidelines. In appropriate cases, jurisdiction
of the High Court under Section 482 CrPC and
Articles 226 and 227 of the Constitution can be
invoked seeking appropriate relief or suitable
directions.
(6) This is an appropriate occasion to remind the
Union of India and the State Governments of their
constitutional obligation to strengthen the judiciary --
quantitatively and qualitatively -- by providing
requisite funds, manpower and infrastructure. We hope
and trust that the Governments shall act.
We answer the questions posed in the orders of reference dated 19-
9-2000 and 26-4-2001 in the abovesaid terms.
*****
"32. Secondly, though we are deleting the directions made
respectively by two-and three-Judge Benches of this Court in the
cases under reference, for reasons which we have already stated,
we should not, even for a moment, be considered as having made a
departure from the law as to speedy trial and speedy conclusion of
criminal proceedings of whatever nature and at whichever stage
before any authority or the court. It is the constitutional obligation
of the State to dispense speedy justice, more so in the field of
criminal law, and paucity of funds or resources is no defence to
denial of right to justice emanating from Articles 21, 19 and 14
and the preamble of the Constitution as also from the directive
principles of State policy. It is high time that the Union of India and
the various States realize their constitutional obligation and do
something concrete in the direction of strengthening the justice
delivery system. We need to remind all concerned of what was said
by this Court in Hussainara Khatoon (IV) [Hussainara Khatoon
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(IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98 : 1980 SCC
(Cri) 40]:
The State cannot be permitted to deny the
constitutional right of speedy trial to the accused on
the ground that the State has no adequate financial
resources to incur the necessary expenditure needed
for improving the administrative and judicial
apparatus with a view to ensuring speedy trial. The
State may have its financial constraints and its
priorities in expenditure, but, 'the law does not permit
any Government to deprive its citizens of
constitutional rights on a plea of poverty', or
administrative inability. (SCC p. 107, para 10)"
(emphasis supplied)
20. In State of Kerala vs Raneef7, the Hon‟ble Supreme Court said :
" .... The appellant has filed this appeal challenging the impugned
order of the Kerala High Court dated 17-9-2010 granting bail to the
respondent, Dr. Raneef, who is a medical practitioner (dentist) in
Ernakulam District in Kerala, and is accused in Crime No. 704 of
2010 of PS Muvattupuzha for offences under various provisions of
IPC, the Explosive Substances Act, and the Unlawful Activities
(Prevention) Act.
*****
"15. In deciding bail applications an important factor which
should certainly be taken into consideration by the court is the
delay in concluding the trial. Often this takes several years, and if
the accused is denied bail but is ultimately acquitted, who will
restore so many years of his life spent in custody? Is Article 21 of
the Constitution, which is the most basic of all the fundamental
rights in our Constitution, not violated in such a case? Of course
(2011) 1 SCC 784
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this is not the only factor, but it is certainly one of the important
factors in deciding whether to grant bail. In the present case the
respondent has already spent 66 days in custody (as stated in Para
2 of his counter-affidavit), and we see no reason why he should be
denied bail. A doctor incarcerated for a long period may end up like
Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who
forgot his profession and even his name in the Bastille."
(emphasis supplied)
Then, again in Sanjay Chandra vs CBI8, the Hon'ble Supreme Court
said:
"39. Coming back to the facts of the present case, both the courts
have refused the request for grant of bail on two grounds : the
primary ground is that the offence alleged against the accused
persons is very serious involving deep-rooted planning in which,
huge financial loss is caused to the State exchequer; the secondary
ground is that of the possibility of the accused persons tampering
with the witnesses. In the present case, the charge is that of
cheating and dishonestly inducing delivery of property and forgery
for the purpose of cheating using as genuine a forged document.
The punishment for the offence is imprisonment for a term which
may extend to seven years. It is, no doubt, true that the nature of
the charge may be relevant, but at the same time, the punishment
to which the party may be liable, if convicted, also bears upon the
issue.Therefore, in determining whether to grant bail, both the
seriousness of the charge and the severity of the punishment
should be taken into consideration.
"40. The grant or refusal to grant bail lies within the discretion of
the court. The grant or denial is regulated, to a large extent, by the
facts and circumstances of each particular case. But at the same
time, right to bail is not to be denied merely because of the
sentiments of the community against the accused. The primary
purposes of bail in a criminal case are to relieve the accused of
(2012) 1 SCC 40
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imprisonment, to relieve the State of the burden of keeping him,
pending the trial, and at the same time, to keep the accused
constructively in the custody of the court, whether before or after
conviction, to assure that he will submit to the jurisdiction of the
court and be in attendance thereon whenever his presence is
required.
******
"42. When the undertrial prisoners are detained in jail custody to
an indefinite period, Article 21 of the Constitution is violated.
Every person, detained or arrested, is entitled to speedy trial, the
question is : whether the same is possible in the present case.
"43. There are seventeen accused persons. Statements of witnesses
run to several hundred pages and the documents on which reliance
is placed by the prosecution, are voluminous. The trial may take
considerable time and it looks to us that the appellants, who are in
jail, have to remain in jail longer than the period of detention, had
they been convicted. It is not in the interest of justice that the
accused should be in jail for an indefinite period. No doubt, the
offence alleged against the appellants is a serious one in terms of
alleged huge loss to the State exchequer, that, by itself, should not
deter us from enlarging the appellants on bail when there is no
serious contention of the respondent that the accused, if released
on bail, would interfere with the trial or tamper with evidence. We
do not see any good reason to detain the accused in custody, that
too, after the completion of the investigation and filing of the
charge-sheet.
*****
"45. In Bihar Fodder Scam (Laloo Prasad case [Laloo Prasad v.
State of Jharkhand, (2002) 9 SCC 372] ) this Court, taking into
consideration the seriousness of the charges alleged and the
maximum sentence of imprisonment that could be imposed
including the fact that the appellants were in jail for a period of
more than six months as on the date of passing of the order, was
of the view that the further detention of the appellants as pretrial
prisoners would not serve any purpose.
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"46. We are conscious of the fact that the accused are charged
with economic offences of huge magnitude. We are also conscious
of the fact that the offences alleged, if proved, may jeopardise the
economy of the country. At the same time, we cannot lose sight of
the fact that the investigating agency has already completed
investigation and the charge-sheet is already filed before the
Special Judge, CBI, New Delhi. Therefore, their presence in the
custody may not be necessary for further investigation. We are of
the view that the appellants are entitled to the grant of bail pending
trial on stringent conditions in order to ally the apprehension
expressed by CBI."
(emphasis supplied)
More recently, in Umarmia vs State of Gujarat 9 , the Hon'ble
Supreme Court granted bail to the undertrial inter alia on the ground of his
incarceration for about 12 years, and said :
"...... This appeal is filed against the judgment dated 16-6-2010 in
Criminal Misc. Sr. No. 44 of 2010 by which the Court of Designated
Judge (TADA) at Porbandar (hereinafter referred to as "the
Designated Court") rejected the bail application filed by the
appellant under Section 439 CrPC and Section 20(8) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as "the Act"). Crime No. I-43 of 1994 was
registered under Section 154 CrPC for the offences committed
under Sections 121, 121-A, 122, 123, 124-B read with Section 34
of the Penal Code, 1860, Sections 25(1-A), (1-B) and 25(1-AA) of
the Arms Act, Section 9-B of the Explosives Act, Sections 3, 4, 5
and 6 of the Explosive Substances Act and Sections 3, 4 and 5 of
the Act.
"2. The statement of one Suresh recorded under Section 108 of the
Customs Act revealed that explosive substances, powder RDX
(2017) 2 SCC 731
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boxes, bags containing firearms, 45 bags of weapons, 15 boxes of
RDX and 225 pieces of silver ingots were smuggled into the country
and taken to Zaroli and Dhanoli Villages of Valsad District. The
first charge-sheet was filed on 12-1-1995 in which the name of the
appellant is found at Serial No. 1 in Column 2 which refers to
persons who were absconding. The 11th supplementary charge-
sheet was filed on 6-6-2005 wherein it was mentioned that the
appellant was arrested at 1700 hrs on 10-12-2004.
*****
"10. After considering the submissions of both sides, we are of the
opinion that the appellant is entitled to be released on bail for the
following reasons:
A. The prior approval required under Section 20-A(1)
of the TADA Act was not taken from the District
Superintendent of Police before the FIR was recorded.
B. Admittedly, the appellant had been suffering
incarceration for more than 12 years.
C. Only 25 out of 192 witnesses have been examined
so far.
D. There is no likelihood of the completion of trial in
the near future.
E. Though there is a confessional statement of the
appellant recorded under Section 15 of the TADA, the
same cannot be looked into by us in view of the
violation of Section 20-A(1) of the TADA Act.
"11. This Court has consistently recognised the right of the
accused for a speedy trial. Delay in criminal trial has been held to
be in violation of the right guaranteed to an accused under Article
21 of the Constitution of India. (See Supreme Court Legal Aid
Committee v. Union of India [Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of India, (1994) 6
SCC 731 : 1995 SCC (Cri) 39] and Shaheen Welfare Assn. v. Union
of India [Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC
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616 : 1996 SCC (Cri) 366] .) The accused, even in cases under
TADA, have been released on bail on the ground that they have
been in jail for a long period of time and there was no likelihood
of the completion of the trial at the earliest. [See Paramjit Singh v.
State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi),
(1999) 9 SCC 252 : 1999 SCC (Cri) 1156] and Babba v. State of
Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 :
(2006) 2 SCC (Cri) 118] .]
"12. Though the appellant is involved in serious offences and has
absconded for a period of 10 years before he was arrested in 2004,
we see no reason to confine him to jail as he has already suffered
more than 12 years in custody and the trial may not be completed
in the near future. Taking note of the above, we grant relief of bail
to the appellant subject to the following conditions: ...
* * * * * *"
(emphasis supplied)
Again in Angela Harish Sontakke vs State of Maharashtra 10 , the
Hon'ble Supreme Court said :
"2. Leave granted. We have heard the learned counsel for the
parties. Charges have been framed against the appellant-accused
under Sections 10, 13, 17, 18, 18-A, 18-B, 20, 21, 38, 39 and 40(2)
of the Unlawful Activities (Prevention) Act, 1967, amended 2008
and Sections 387, 419, 465, 467, 468, 471 read with Section 120-B
of the Penal Code, 1860.Undoubtedly, the charges are serious but
the seriousness of the charges will have to be balanced with
certain other facts like the period of custody suffered and the likely
period within which the trial can be expected to be completed.
"3. The appellant-accused has been in custody since April 2011 i.e.
for over five years. The trial is yet to commence inasmuch as the
learned State Counsel has submitted that 9-5-2016 is the first date
(2021) 3 SCC 723
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fixed for the trial. There are over 200 witnesses proposed to be
examined. The appellant-accused is a lady. She has also been
acquitted of similar charges levelled against her in other cases.
Taking into account all the aforesaid facts we are of the view that
the appellant-accused should be admitted to bail. We accordingly
direct that the appellant-accused Angela Harish Sontakke be
released on bail by the learned trial court in connection with
Sessions Case No. 655 of 2011 arising out of CR No. 19/11, PS, ATS
Kalachowki, Mumbai."
(emphasis supplied)
21. While it is not our understanding that the decision of the Hon‟ble
Supreme Court in K.A. Najeeb (supra) overrules its decision in Watali
(supra), as discussed above, in our reading, these two verdicts lay
down two different approaches for considering the matter of bail in
cases where offences under the UAPA are alleged. K.A. Najeeb
(supra) lays-down the constitutional approach arising from Article 21,
whereas Watali (supra) explains the statutory approach arising from
section 43(D)(5) of UAPA.
22. However, the principle in K.A. Najeeb (supra) turns upon an aspect
that involves the subjective satisfaction of the court applying that
principle. This subjectivity arises from the following question : how
long is too long a period of incarceration as an undertrial, for a court
to conclude the right to speedy trial is defeated ?
23. To answer the above question, this court took a conspectus of certain
other decisions of the Hon‟ble Supreme Court and other High Courts,
in which the Courts have considered the period of undertrial
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incarceration as being inordinately long, so as to warrant enlargement
on bail. The result of this conspectus is summarised below :
S.No. Cause Title Offences alleged Period of Maximum
incarceration punishment
for offences
alleged
1 Union of India vs Indian Penal Code : Sections 5 years Death/Life
K.A. Najeeb 143, 147, 148, 120-B, 341, Imprisonment
427, 323, 324, 326 and 506 Absconding for
about 5 years
(2021) 3 SCC 713 Pt.II, 201, 202, 153-A, 212,
307, 149
Unlawful Activities
(Prevention) Act : Sections 16,
18, 18-B, 19 & 20
Explosive Substances Act,
1908: Section. 3
2 Iqbal Ahmed Kabir Indian Penal Code : Sections Over 4.5 years Life
Ahmed vs 120B & 471 (Aug 2016- Imprisonment
The State of Maharashtra March 2021)
Unlawful Activities
(2021) SCC OnLine Bom (Prevention) Act : Sections 13,
1805 16, 18, 18B, 20, 38 & 39
Explosive Substances Act :
Sections 4, 5, 6
3 Sagar Tatyaram Gorkhe Indian Penal Code : Sections About 4 years Life
vs 387, 465, 467, 468, 471 r/w Imprisonment
State of Maharashtra 120-B
Unlawful Activities
(2021) 3 SCC 725 (Prevention) Act : Sections 18,
18(A), 18(B), 20, 38 and 39
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4 Lt. Col Prasad Shrikant Unlawful Activities 8 years 8 Death
Purohit vs (Prevention) Act : Sections 15, months
State of Maharashtra 16, 17, 18, 20 & 23
Indian Penal Code : Sections
(2018) 11 SCC 458 302, 307, 326, 324, 427, 153-
A and 120-B
Explosive Substances Act :
Sections 3, 4, 6
5 Urmarmia vs TADA: Sections 3, 4, 5 Incarcerated for Death/Life
State of Gujarat 12 years, Imprisonment
Explosive Substances Act: Absconded for
Sections 3, 4, 5, 6, 9B 10 years
(2017) 2 SCC 752
Indian Penal Code: Sections
121, 121A, 122, 123, 124B
r/w 34
Arms Act : Sections 25(1A),
(1B) and 25(1AA)
6 Angela Harish Sontakke Unlawful Activities Over 5 years Life
vs (Prevention) Act : Sections 10, Imprisonment
State of Maharashtra 13, 17, 18, 18-A, 18-B, 20, 21, Taken into
38, 39, 40(2) custody on
2016 SCC Online SC 1910 April 2011,
Indian Penal Code : Sections
387, 419, 465, 467, 468, 471
7 State of Kerala vs Raneef Indian Penal Code : Sections 66 days Life
143, 147, 148, 120 B, 323, Imprisonment
(2011) 1 SCC 784 324, 326. 341, 427, 506 (ii), Arrested on
307, 153 (A), 201, 202 and 13.07.2010
212 read with 149
Unlawful Activities
(Prevention) Act: Sections 16,
18, 18(b) 19 & 20
Explosive Substances Act :
Sections 3 and 15
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8 Chenna Boyanna Krishna Indian Penal Code: Sections Over 3 years 3 years u/s 24
Yadav vs State of 120B, 255, 256, 257, 258, 259, of MCOCA
Maharashtra and Anr. 263A, 420, 467, 468, 471,
472, 473, 474, 475, 476 and
(2007) 1 SCC 242 34 IPC
Bombay Stamps Act :
Sections 63(a) and 63(b)
Maharashtra Control of
Organized Crimes Act
:Sections 3 and 24
Prevention of Corruption Act:
Sections 7 and 13(i)(d)
9 Babba vs Offences under TADA (not Around 13 Information
State of Maharashtra mentioned in the judgment) years not available
Arrested on
(2005) 11 SCC 569
01.07.1992
10 Paramjit Singh vs State Offences under TADA (not About 7 years Information
(NCT of Delhi) mentioned in the judgment) not available
(From May
(1999) 9 SCC 252 1992 to January
24. From the aforesaid, though no particular correlation as between
undertrial incarceration and the right to speedy trial being defeated
emerges, what we see clearly is, one, that undertrials have been
enlarged on bail even in cases where the offences alleged were
punishable with death; and, two, that even when the period of
incarceration undergone as undertrial was as little as 66 days, the
Hon'ble Supreme Court enlarged the undertrial on bail.
25. Courts must not play coroner and attend to legal or constitutional
rights only after they are „dead‟. Instead we must play doctor, and
save such rights from demise before they are extinguished. Courts
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should pro-actively step-in to protect such rights from being stifled
and buried. If equity calls upon affected persons to be vigilant to
protect their rights, then surely the courts must also be vigilant, and,
to quote the Hon‟ble Supreme Court, act as sentinels on the qui vive
when it comes to protecting constitutional and legal rights.
26. In the present case, the appellant has spent more than 12 years in
custody as an undertrial; 256 witnesses have been examined over the
last about 12 years, but 60 prosecution witnesses still remain to be
examined. Regardless of how much longer the trial may take
hereafter, the incarceration of more than 12 years suffered by the
appellant in custody as an undertrial would certainly qualify as a long
enough period for the system to acknowledge that the appellant‟s
right to speedy trial continues to be defeated.
27. A reminder of the foundational principles of bail, in the masterful
words of the apotheosis of jurisprudence, Justice V.R. Krishna Iyer, is
never out of place. In Gudikanti Narasimhulu and Ors. vs Public
Prosecutor, High Court of Andhra Pradesh 11 as upheld in a
subsequent decision in Babu Singh & Ors vs State of UP 12 , the
Hon‟ble Supreme Court said in the opening para :
""Bail or jail?" -- at the pre-trial or post-conviction stage --
belongs to the blurred area of the criminal justice system and
largely hinges on the hunch of the Bench, otherwise called
judicial discretion. The Code is cryptic on this topic and the Court
(1978) 1 SCC 240
(1978) 1 SCC 579
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prefers to be tacit, be the order custodial or not. And yet, the issue
is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail
is integral to a socially sensitized judicial process. As Chamber
Judge in this summit court I have to deal with this uncanalised case-
flow, ad hoc response to the docket being the flickering candle light.
So it is desirable that the subject is disposed of on basic principle,
not improvised brevity draped as discretion. Personal liberty,
deprived when bail is refused, is too precious a value of our
constitutional system recognised under Article 21 that the curial
power to negate it is a great trust exercisable, not casually but
judicially, with lively concern for the cost to the individual and the
community. To glamorize impressionistic orders as discretionary
may, on occasions, make a litigative gamble decisive of a
fundamental right. After all, personal liberty of an accused or
convict is fundamental, suffering lawful eclipse only in terms of
"procedure established by law". The last four words of Article 21
are the life of that human right.
"2. The doctrine of police power, constitutionally validates punitive
processes for the maintenance of public order, security of the State,
national integrity and the interest of the public generally. Even so,
having regard to the solemn issue involved, deprivation of personal
freedom, ephemeral or enduring, must be founded on the most
serious considerations relevant to the welfare objectives of society,
specified in the Constitution."
(emphasis supplied)
28. Furthermore, we observe that, even assuming that the specific role
attributed to the appellant in the charge framed vidé order dated
06.05.2011 against him, warrants a life sentence, section 57 of the
IPC provides that in calculating fractions of terms of punishment,
imprisonment for life shall be reckoned to be equivalent to
imprisonment for 20 years; whereby, it would be reasonable to say,
that the appellant has already undergone more than half the sentence
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he may eventually face. To be sure, while observing so, it is not the
purport of this court to pre-judge the decision of the learned Trial
Court to award to the appellant whatever sentence it deems
appropriate, in accordance with law, if the appellant is eventually
convicted.
29. In urging us to assume that if one of the offences with which the
appellant is charged is punishable with death, the State is, in effect,
asking us to not only infer that the appellant would certainly be
convicted, but also that he would be awarded the harshest possible
sentence, namely the capital sentence.
30. This, we are specifically enjoined not to do while deciding a bail
application. In fact, on the well-worn principle that the death sentence
is to be awarded only in the „rarest of rare‟ cases, capital punishment
can never be treated as the default punishment, and even for the most
heinous offences it can never be assumed that an accused is most
likely to be awarded the death sentence. It would be completely
illogical to presume that what is mandated to be done in the „rarest of
rare‟ cases would „most likely‟ be done in a given case.
31. It is also necessary to enunciate another important aspect of the
matter, which is that where a person is charged with an offence which
potentially carries a death sentence, it is all the more important to
ensure a speedy trial so as to bring the offender, who is charged with a
heinous crime, to justice, at the earliest.
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32. There is another way to address the State‟s submission that since the
appellant is charged with an offence under section 16 of UAPA, the
court must proceed on the assumption that he may be meted-out the
death penalty. For one, this submission is purely an assumption.
Besides, if it wishes to canvass this one assumption, the State must
address at least two contrary assumptions to test if the State‟s
assumption deserves to form the basis of a decision, at this stage. The
two contrary assumptions are : first, what if the appellant is acquitted.
In the event of acquittal, how would the State compensate the
appellant for having been robbed of what may have been the most
productive and defining decade of his life, at the State‟s instance?
Second, even assuming the appellant is ultimately convicted but
sentenced to life imprisonment, how would the State compensate him
for having negated his entitlement to bail under section 436A Cr.P.C.
read with section 57 IPC? We are sure the State has not delved into
these contrary assumptions.
33. In the present case, if the State plans to seek the capital sentence for
the appellant, it is therefore all the more necessary that the appellant
be afforded a speedy trial; failing which, the appellant deserves at
least to be given back his liberty after more than 12 long years of
imprisonment as an undertrial, since it cannot be ignored that as of
now, the appellant has undergone punishment for more than a decade
of his life, for an alleged offence for which he has not yet been found
guilty.
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34. We may also observe that the record of this appeal shows that the
appellant was enrolled in a B.Tech. (Biotechnology) degree course at
the Integral University, Lucknow, Uttar Pradesh (an institution
established under U.P. State legislation and approved by the
University Grants Commission) in the 2008-2009 sessions, i.e., about
the time that the offence is alleged to have been committed.
Conclusions
35. Upon a conspectus of the foregoing facts and circumstances, in the
opinion of this court, on the touchstone of the principles upheld by the
Hon‟ble Supreme Court in K.A. Najeeb (supra), in our opinion, the
appellant has made-out a case that his right to speedy trial is being
defeated and would continue to be violated if he is not enlarged on
bail, having already spent more than 12 years in custody as an
undertrial.
36. Accordingly, we are disposed to allowing the present appeal, which
we hereby do.
37. In view of the above, it is directed that the appellant be released on
regular bail, pending trial, subject to the following conditions:
(a) The applicant shall furnish a personal bond in the sum of
Rs.25,000/- (Rupees Twenty Five Thousand Only) with 02
local surety in the like amount from family members, to the
satisfaction of the learned Trial Court;
(b) The applicant shall furnish to the Investigating Officer a
cellphone number on which the applicant may be contacted at
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any time; and shall ensure that the number is kept active and
switched-on at all times;
(c) If the applicant has a passport, he shall surrender the
same to the learned Trial Court and shall not travel out of the
country without prior permission of the learned Trial Court;
(d) The applicant shall not contact, nor visit, nor offer any
inducement, threat or promise to any of the prosecution
witnesses or other persons acquainted with the facts of case.
The applicant shall not tamper with evidence nor otherwise
indulge in any act or omission that is unlawful or that would
prejudice the proceedings in the pending trial.
38. Nothing in this judgment shall be construed as an expression on the
merits of the matter or the pending trial.
39. A copy of this judgment be sent to the concerned Jail Superintendent
and the learned Trial Court.
40. The appeal stands disposed of in the above terms.
41. Pending applications, if any, also stand disposed of.
SIDDHARTH MRIDUL, J.
ANUP JAIRAM BHAMBHANI, J.
October 06, 2021
uj/ds/Ne
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Signing Date:06.10.2021
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