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2024 (5) TMI 883 - SUPREME COURTCommission of offences Under Sections 153A, 505(1b), 117 read with Section 34 of the Indian Penal Code, 1860 - violence broke out at a function organised by Elgar Parishad - in the said programme, provocative speeches were delivered and there were cultural performances which had the effect of creating enmity between caste groups, resulting in disruption of communal harmony, violence, and loss of life - HELD THAT:- In the case of K.A. Najeeb v. Union of India [2021 (2) TMI 1212 - SUPREME COURT], a three Judge Bench of this Court (of which one of us Aniruddha Bose, J. was a party), has held that a Constitutional Court is not strictly bound by the prohibitory provisions of grant of bail in the 1967 Act and can exercise its constitutional jurisdiction to release an Accused on bail who has been incarcerated for a long period of time, relying on Article 21 of Constitution of India. This Court has already accepted right of an Accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in the case of Najeeb, and in that judgment, long period of incarceration was held to be a valid ground to enlarge an Accused on bail in spite of the bail- restricting provision of Section 43D(5) of the 1967 Act. Pre- conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an Accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same Accused. Depending on gravity and seriousness of the offence alleged to have been committed by an Accused, detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post-chargesheet stage. Once it is found that Section 43D(5) of the 1967 Act would not be applicable in the case of the Appellant, the case is required to examine the case of the Appellant in relation to accusation against her Under Section 13 of the 1967 Act and also other offences under the provisions of the 1860 Code, which we have narrated earlier. It is already indicated that she is a lady of advanced age, suffering from various ailments. The Appellant be is directed to be released on bail on such conditions the Special Court may consider fit and proper but the conditions shall include the following: (a) The Appellant shall not leave the State of Maharashtra without leave of the Special Court. (b) The Appellant shall surrender her passport, if she possesses one, with the Special Court, during the period she remains enlarged on bail. (c) The Appellant shall inform the Investigating Officer of the NIA the address where she shall reside during the period she remains enlarged on bail. (d) The Appellant shall use only one mobile number, during the time she remains on bail, and shall inform her mobile number to the Investigating Officer of the NIA. (e) The Appellant shall also ensure that her mobile phone remains active and charged round the clock so that she remains constantly accessible throughout the period she remains enlarged on bail. (f) During this period, i.e. the period during which she remains on bail, the Appellant shall keep the location status (GPS) of her mobile phone active, twenty-four hours a day, and her phone shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the Appellants' exact location. (g) The Appellant, while on bail, shall report to the Station House Officer of the Police Station within whose jurisdiction she shall reside, once every fortnight. Appeal allowed.
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