On bail matters, especially in cases under the draconian Unlawful Activities (Prevention) Act, 1967 (UAPA), the Supreme Court and the High Courts have been, of late, liberal in interpreting the law in favour of the accused.
But the Supreme Court’s ambivalence on the issue has led to different outcomes in different cases, if they are listed before court’s benches that comprise judges with different predispositions on issues of liberty.
In the latest instance, in Javed Gulam Nabi Shaikh vs The State of Maharashtra, the accused was apprehended from a bus stop in Mumbai by the police on the basis of some secret information in February 2020. The police claimed to have recovered 1193 numbers of counterfeit Indian currency notes of the denomination of Rs.2,000 from him.
The prosecution alleged that the consignment of the counterfeit notes was smuggled from Pakistan to Mumbai. The National Investigation Agency (NIA) took over the case subsequently, arresting two co-accused, apart from the appellant-accused, in connection with the offence.
The two-judge bench of the Supreme Court, comprising Justices J.B. Pardiwala and Ujjal Bhuyan on July 3, granted bail to the appellant-accused, on the ground that he has been in jail as an undertrial prisoner for the past four years, and to this date, the trial court has not been able to even proceed to frame charge.
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The appellant had allegedly committed offences under Sections 489B (using counterfeit currency notes as genuine), 489C (possession of counterfeit currency notes), 120B (criminal conspiracy) and 34 of the Indian Penal Code, read with Sections 15 (1)(a) (iiia) (damage to monetary stability of India by the circulation of high-quality counterfeit currency), 16 (punishment for a terrorist act) and 18 (punishment for conspiracy) of the UAPA.
The bench also noted the fact that the prosecution intended to examine not less than 80 witnesses, and that two of the co-accused are already on bail, although NIA has appealed against the grant of bail to one of them in the Supreme Court.
The Bombay High Court had, in February this year, rejected the bail petition filed by the appellant on the ground that he had deliberately collected the fake currency from Dubai with an intention to push them in monetary transactions in India to damage the nation’s economy. The High Court relied on Section 43D(5) of the UAPA, which prohibits the grant of bail if the court is satisfied that the allegations against the accused are prima facie true. The Bombay High Court’s refusal to grant bail to the appellant-accused was thus under challenge before the Supreme Court.
The bench, while granting bail to the appellant-accused, wondered what period of time the trial would ultimately conclude. The bench observed, “Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.”
Left-wing organisations protest against UAPA law in Bengaluru on June 20, 2024. | Photo Credit: IDREES MOHAMMED/AFP
The bench added that the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment. Citing the top court’s judgment in a case in 1980, the bench reiterated that the proper test is whether it is probable that the party (the accused) would appear to take his trial.
The bench also relied on the landmark judgment of the apex court in Hussainara Khatoon vs Home Secretary, State of Bihar (1980), in which it had declared that the right to speedy trial of offenders facing criminal charges is implicit in the broad sweep and content of Article 21 of the Constitution, guaranteeing right to life and liberty.
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In Hussainara Khatoon, the court had held that a valid procedure under Article 21 is one that contains a procedure that is “reasonable, fair and just.” No procedure that does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just,” the court had held in that case.
Relying on Supreme Court’s judgment in another case, Union of India vs K.A. Najeeb (2021), the J.B. Pardiwala-Ujjal Bhuyan bench reiterated the dictum that the rigours of restrictions on the grant of bail would melt down where there is no likelihood of trial being completed within a reasonable timeframe and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
More importantly, the J.B. Pardiwala-Ujjal Bhuyan bench underlined the reformist potential of criminal law by observing that we should not write off any criminal as beyond redemption. The bench observed: “Every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.”
The bench advised the State or the prosecution not to oppose the plea for bail on the ground that the crime committed is serious; Article 21 of the Constitution guarantees the right to have a speedy trial, irrespective of the nature of the crime. The bench held that the overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.
Interestingly, when the bail petition was considered by the bench on July 3, the counsel for the NIA and Maharashtra government sought an adjournment, but the bench refused to grant it, drawing their attention to the appellant’s prolonged custody for four years.
Precedent value
While welcoming the Supreme Court’s decision in this case, observers wonder whether the courts would apply it to similar cases where trials have been pending between four and 10 years under the UAPA. As per data released by the National Crime Records Bureau (NCRB) for 2019, as many as 22 cases were pending trial under the UAPA for more than 10 years.
If the four-year pendency is a legitimate ground for grant of bail, it is apparent that it should be applicable in the Bhima Koregaon case, where some of the 16 accused have been languishing in jails without trial for six years. The accused were alleged to have Maoist links.
One of the accused, land and forest rights activist Mahesh Raut secured bail on merit from the Bombay High Court on September 21, 2023. But the High Court stayed its own bail order for one week to enable the NIA to appeal against it in the Supreme Court. A division bench of the Supreme Court, on September 27, 2023, extended the High Court’s stay of its own order, without hearing contentions against the stay. Since then, the Supreme Court has repeatedly extended the stay on Raut’s bail, although its own jurisprudence clearly emphasises non-interference with the lower court’s grant of bail. Raut recently secured interim bail of two weeks to attend rituals in connection with the death of his grandmother.
Another accused in the Bhima Koregaon case, former professor, Hany Babu, withdrew his petition from the Supreme Court seeking bail, because it was listed for hearing before another bench presided by Justice Bela M. Trivedi, whose previous decisions in bail cases did not inspire the confidence of the accused. For the record, however, Babu submitted to the Supreme Court that he was withdrawing his petition for bail because there was a “change of circumstances” warranting his fresh plea to the High Court for appropriate remedy.
Too many witnesses
Both Raut and Babu have been languishing in jail for the past six years and the charges against them are yet to be framed, with the number of witnesses to be examined by the NIA totalling nearly 336. The possibility of a prolonged trial on account of too many witnesses, and the many years of incarceration that the accused had already spent before the trial commences, have been cited as legitimate grounds for the grant of bail in many cases by the Supreme Court. Besides, the release of the seven of the co-accused on bail, is another ground in favour of grant of bail to the remaining accused in this case.
An activist holds a placard during a protest against the order to prosecute author Arundhati Roy and academic Sheikh Showkat Hussain under the UAPA law in Bengaluru on June 20, 2024. | Photo Credit: IDREES MOHAMMED/AFP
The case of Umar Khalid, an accused in the 2020 Delhi riots case, is another instance of gross injustice caused by the uneven jurisprudence. Khalid, held under the UAPA, has spent close to four years in jail. Much like Babu, Khalid chose to withdraw his petition from the Supreme Court bench comprising Justices Trivedi and Pankaj Mithal in February 2024, with the liberty to seek bail from the trial court. The trial court, however, has repeatedly denied him bail.
In the Delhi riots’ larger conspiracy case, nine Muslims who face charges under the UAPA have spent more than four years in jail, but are yet to secure bail from the Delhi High Court, despite their cases being listed multiple times.
On July 4, Justice Amit Sharma of the Delhi High Court recused himself from hearing a batch of bail pleas in the case, including that of student leader, Sharjeel Imam. Imam was denied bail by the trial court on April 11, 2022. His appeal was listed before three different benches, and all the three did not deliver their verdicts for reasons such as the transfer of one of the judges who heard the case to another High Court, roster changes by the Chief Justice, or recusals by judges who were assigned the cases by the Chief Justice.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
