Listen to this article




Criminal Appeal No. 98 of 2021 arising out of Special Leave Petition (Crl.) No. 11616 of 2019, Decided on Febrary 1, 2021



A Professor included a question in a college examination which was considered objectionable against a particular religious section. A religious association decided to avenge the Professor and in pursuance, thereof, a group of people with a common object/intention attacked the Professor. During the course of the attack, the members of the group forcefully intercepted thevictim professor’s car, restrained him and chopped¬off his right palm. Country-made bombs were also hurled at bystanders to create panic and terror in their minds and prevent them from coming to the victim’s aid.

An FIR was consequently lodged against the attackers under provisions of IPC and Explosive Substances Act. The police chargesheeted many people, including the present respondent. It was alleged that the respondent was the main conspirator and provisions under Sections 153A, 201, 202, 212 of IPC and Section 16, 18, 18¬B, 19 and 20 of  the Unlawful Activities (Prevention) Act, 1967 (“hereinafter referred “UAPA”) were invoked against him. However, the respondent was absconding therefore his trial was split up from the rest of his co¬conspirators. The co¬-accused was tried and most of them were found guilty by the Special Court.  When the respondent was arrested, chargesheet was again filed by the National Investigation Agency against him for which he is now facing trial.  

The respondent approached the Special Court and the High Court for bail several times, seeking leniency on the grounds of his limited role in the offence and claiming parity with other co-accused who had been enlarged on bail or acquitted. However, all bail applications were rejected observing that the respondent has prima facie  prior knowledge of the offence and he has had assisted as well as facilitated the attack. Therefore, the Court was of the view that the bar against grant of bail under Section 43-D (5) of the UAPA was attracted.  The respondent again approached the High Court for the third time, questioning the order of rejection of bail by Special Court.

By the said impugned order, the High Court released the respondent on bail observing that the trial was yet to begin though the respondent had been in custody for four years. Emphasizing the mandate for an expeditious trial under the National Investigation Agency Act, 2008, the High Court held that the respondent could not be kept in custody for too long when the trial was not likely to commence soon. It was observed that for not doing so it would cause severe prejudice and suffering to him..

Issue: Can the violation of Fundamental Right to Speedy Trial be a ground for Constitutional Court to grant bail under Section 43(D)(5) of UAPA?

The Supreme Court observed that it is egregious that the accused had already spent more than five years as an undertrial and yet more than 276 witnesses are still to be examined. It was further observed that the National Investigating Agency had shown no inclination to screen its endless list of witnesses.

The Supreme Court accepted that there exist a bar under Section 43D(5) of UAPA against grant of bail in such matters. It observed that the provision does not oust the jurisdiction of Constitutional courts to grant bail on the grounds of violation of fundamental rights. The Court noted that the restrictions under a statute and the Court’s constitutional jurisdiction should be harmonized. Such rigours provisions will meltdown where there is no likelihood of trial being completed within a reasonable time. The period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

The Court further observed that the thirteen co­-accused who have been convicted with sentence of around eight years rigorous imprisonment. Therefore, even if the respondent is found guilty, the punishment would be similar. Given that two-­thirds of incarceration is complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.

The Supreme Court reiterated that right to a speedy trial is intrinsic to liberty under Article 21 by placing reliance on In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India (1994) 6 SCC 731. In this case, it was held that undertrials could not indefinitely be detained pending trial.

Regarding the bar under Section 43D(5) of UAPA, the Court said that it does not bar the jurisdiction of Constitutional courts when it comes to enforcement of  rights enshrined under Part III of the Constitution..Hence, the Supreme Court declined to interfere with the order of the Kerala High Court.



Leave a Reply