TMI Blog2021 (10) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant 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 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 vide order dated 19.09.2016 on the purported reasoning that the natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt vide 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-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 whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Hon'ble Supreme Court: KA Najeeb vs. Union of India: Crl.M.A. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasized 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 (1980) 1 SCC 81, where the Hon'ble Supreme Court 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prived 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 criminal law is that imprisonment may follow a judgment of guilt, but should not precede it. ... (e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 towards delay are relevant factors. Attendant circumstances, including nature of the offence, number of accused and witnesses, the workload of the court concerned, prevailing lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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] an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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. Raneef (2011) 1 SCC 784, the Hon'ble Supreme Court said: .... The appellant has filed this appeal challenging the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to as the Designated Court ) rejected the bail application filed by the appellant under Section 439 Cr.P.C. 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 Cr.P.C. 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 and6 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el 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 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 Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Maharashtra (2021) 3 SCC 725 Indian Penal Code : Sections 387, 465, 467, 468, 471 r/w 120-B Unlawful Activities (Prevention) Act : Sections 18, 18(A), 18(B), 20, 38 and 39 About 4 years Life Imprisonment 4. Lt. Col Prasad Shrikant Purohit vs State of Maharashtra (2018) 11 SCC 458 Unlawful Activities (Prevention) Act : Sections 15, 16, 17, 18, 20 23 Indian Penal Code : Sections 302, 307, 326, 324, 427, 153- A and 120-B Explosive Substances Act : Sections 3, 4, 6 8 years 8 months Death 5. Urmarmia vs State of Gujarat (2017) 2 SCC 752 TADA: Sections 3, 4, 5 Explosive Substances Act: Sections 3, 4, 5, 6, 9B Indian Penal Code: Sections 121, 121A, 122, 123, 124B r/w 34 Arms Act : Sections 25(1A), (1B) and 25(1AA) Incarcerated for 12 years, Absconded for 10 years Death/Life Imprisonment 6. Angela Harish Sontakke vs State of Maharashtra 2016 SCC Online SC 1910 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 (1978) 1 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars; 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. 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspectus 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 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 trav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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