TMI Blog2021 (2) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... il once granted by the trial Court, could be cancelled by the same Court only in case of new circumstances/evidence, failing which, it would be necessary to approach the Higher Court exercising appellate jurisdiction. The charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent s prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent s rights guaranteed under Part III of our Constitution have been well protected. Besides the conditions to be imposed by the trial Court while releasing the respondent, it would serve the best interest of justice and the society at large to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10AM at the local police station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the provisions contained in Sections 153A, 201, 202, 212 of IPC, along with Section 16, 18, 18 B, 19 and 20 of the UAPA were also thus invoked against him. However, owing to him being untraceable, the respondent was declared an absconder and his trial was split up from the rest of his co conspirators. The co accused of the respondent were tried and most of them were found guilty by the Special Court, NIA vide order dated 30.04.2015 and were awarded cumulative sentence ranging between two and eight years rigorous imprisonment. 5. The respondent could be arrested on 10.04.2015 only and a chargesheet was re filed by the National Investigation Agency against him, pursuant to which the respondent is now facing trial. The respondent approached the Special Court and the High Court for bail as many as six times between 2015 and 2019, seeking leniency on grounds of his limited role in the offence and claiming parity with other co accused who had been enlarged on bail or acquitted. Save for the impugned order, bail was declined to the respondent, observing that prima facie he had prior knowledge of the offence, had assisted and facilitated the attack, arranged vehicle and SIM cards, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years. Given how the respondent has already suffered incarceration of almost five and a half years without the trial having even started, it would violate his Constitutional liberty and rights to have him serve most of his sentence without any adjudication of guilt by a judicial authority. He urged that once the High Court had exercised discretion to grant bail, the same ought not to be interfered with except in rare circumstances. Relying upon Shaheen Welfare Association v. Union of India(1996) 2 SCC 616 and Hussain v. Union of India,(2017) 5 SCC 702 it was argued that such protracted incarceration violates the respondent s right to speedy trial and access to justice; in which case, Constitutional Courts could exercise their powers to grant bail, regardless of limitations specified under special enactments. ANALYSIS 9. It must be emphasised at the outset that there is a vivid distinction between the parameters to be applied while considering a bail application, vis vis those applicable while deciding a petition for its cancellation. In Puran v. Rambilas (2001) 6 SCC 338, it was re iterated that at the time of deciding an application for bail, it would be necessary to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] , 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) 13. 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 ( NDPS ) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi)(1999) 9 SCC 252, Babba alias Shan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(1994) 6 SCC 731, 15, 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. As regard to the judgment in NIA v. Zahoor Ahmad Shah Watali (supra), cited by learned ASG, we find that it dealt with an entirely different factual matrix. In that case, the High Court had reappreciated the entire evidence on record to overturn the Special Court s conclusion of their being a prima facie case of conviction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. CONCLUSION 21. In light of the above discussion, we are not inclined to interfere with the impugned order. However, we feel that besides the conditions to be imposed by the trial Court while releasing the respondent, it would serve the best interest of justice and the society at large to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments. In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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