2021 (10) TMI 1414 - HC - Indian Laws

Rejection of Bail application - applicability of provisions of section 43-D(5) of the UAPA - right to a fair trial read into Article 21 of the Constitution - HELD THAT - 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. 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 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. 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. Further it is observed that even assuming that the specific role attributed to the appellant in the charge framed vide 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 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. 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. It is directed that the appellant be released on regular bail pending trial subject to the conditions imposed - application allowed.

Summary

Issues Involved:
1. Role of the appellant in the alleged offences.
2. Previous bail applications and their outcomes.
3. Appellant's right to a speedy trial.
4. Applicability of Section 436A Cr.P.C.
5. Applicability of Section 43-D(5) of UAPA.
6. Constitutional rights under Article 21 of the Constitution.
7. Precedents and principles from various judicial decisions on bail and speedy trial.

Detailed Analysis:

1. Role of the Appellant in the Alleged Offences:
The appellant is accused of transporting cycle ball-bearings from Lucknow to Delhi, which were allegedly used to make Improvised Explosive Devices (IEDs) for the 2008 Delhi bomb blasts. The appellant's role is limited to this act, as per the chargesheet and supplementary chargesheets filed. Despite multiple chargesheets, no further specific role has been ascribed to the appellant beyond the initial allegations.

2. Previous Bail Applications and Their Outcomes:
The appellant's bail application was rejected by the learned Trial Court in 2016, citing the nature and gravity of the offences and the severity of potential punishment. The trial had examined 213 witnesses at that stage. The appellant's subsequent bail plea to the High Court was dismissed as withdrawn in 2017. A fresh bail application was filed in 2021, which was also rejected by the learned ASJ.

3. Appellant's Right to a Speedy Trial:
The appellant's right to a speedy trial, as read into Article 21 of the Constitution, is argued to be violated. The appellant has been in custody for more than 12 years, and the trial is still ongoing with 60 witnesses yet to be examined. The principles laid down by the Supreme Court in Union of India vs. K.A. Najeeb (2021) 3 SCC 713 are invoked, arguing that the appellant's case is similar and the rigours of Section 43-D(5) of UAPA would not apply.

4. Applicability of Section 436A Cr.P.C.:
The appellant's counsel briefly referred to Section 436A Cr.P.C., which entitles an accused to bail if they have undergone detention for more than half of the maximum period of imprisonment specified for the offence. The court noted that though Section 436A Cr.P.C. does not apply directly, the principle of preserving the right to a speedy trial under Article 21 is relevant.

5. Applicability of Section 43-D(5) of UAPA:
The State argued that the offences are grave and heinous, involving serial bomb blasts, and cited Section 43-D(5) of UAPA and the Supreme Court's decision in Zahoor Ahmad Shah Watali (2019) 5 SCC 1 to oppose bail. The court noted that the charges framed against the appellant have not been challenged, and the trial court has already found prima facie material against the accused.

6. Constitutional Rights Under Article 21 of the Constitution:
The court emphasized the right to a speedy trial as part of the fundamental right to life and liberty under Article 21. The court adopted the approach of enforcing constitutional rights based on the principles explained in K.A. Najeeb (supra), considering the prolonged detention of the appellant as an undertrial.

7. Precedents and Principles from Various Judicial Decisions on Bail and Speedy Trial:
The court reviewed several precedents where the Supreme Court granted bail to undertrials based on prolonged detention and the right to a speedy trial. The court concluded that the appellant's prolonged detention of more than 12 years without a conclusion to the trial violates his right to a speedy trial.

Conclusion:
The court allowed the appeal and directed the appellant to be released on regular bail, subject to certain conditions, emphasizing the appellant's right to a speedy trial and the prolonged period of detention already undergone. The court reiterated that nothing in the judgment should be construed as an expression on the merits of the pending trial.