Read Time: 10 minutes

The Supreme Court has held that the presence of statutory restrictions under like Section 43-D (5) of the Unlawful Activities Prevention Act, 1967 shall not oust the ability of the Constitutional Courts to grant bail on the grounds of violations of Part III of the Constitution.

A bench of Justices NV Ramana, Surya Kant & Aniruddha Bose, while upholding the grant of bail by high Court of Kerala further observed in context of the above that both restrictions under the statute as well as powers exercisable under Constitutional Jurisdiction can be well harmonised.

"Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial".
- Supreme Court

Further, Court stated that it was conscious of the fact that the charges levelled against the accused were of grave nature and were a serious threat to the society and had it been a case at the threshold, the Court would have outrightly turned down the respondent's prayer. However, keeping mind the length of the period of custody spent by him and the unlikelihood of the trial being completed anytime soon, the High Court appeared to have no option left but to grant the accused bail.

Factual Matrix:

The case of the prosecution is that one Professor TJ Joseph while framing a question paper for a B.Com. examination had included a question which was considered objectionable against a particular religion by a certain section of the society.

The Respondent, K.A. Najeeb, on July 4, 2010, in association with other members of the PFI decided to avenge this purported act of blasphemy and attacked the professor, chopping his right palm with choppers, knives and a small axe. Country made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the victim. An FIR was lodged against him, however, owing to him being untraceable, the respondent was declared an absconder and his trial was split up from the other co-conspirators.

He was arrested on April 10, 2015 and a chargesheet was filed against him. His bail was rejected as many as 6 times between 2015 & 2019 observing that, prima facie, he had prior knowledge of the offence and had assisted and facilitated the attack. In May 2019, he approached High Court, whereby he was released on bail noting that the trial was yet to begin though the respondent had been in 
custody for four years. The operation of the said order was stayed by Supreme Court as a result of which Najeeb spent nearly 5 years and 5 months in judicial custody.

The appeal was filed by the National Investigation Agency against an order of the High Court of Kerala dated July 23, 2019 whereby bail was granted to one, K.A. Najeeb for offences under the IPC, Explosive Substances Act and Unlawful Activities (Prevention) Act, 1967.

Analysis: 

The Apex Court has noted that is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43­D(5) of UAPA are alien to him.

"The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future," Court stated.

Court relied on several judgments including the Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, whereby it was held that undertrials cannot indefinitely be detained pending trial.

"Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined.   Charges   have   been   framed   only   on   27.11.2020.     Still further, two opportunities were given to the appellant­ NIA who has shown no inclination to screen its endless list of witnesses. It also deserves   mention   that   of   the   thirteen   co­ accused   who   have   been convicted, none have been given a sentence of more than eight years’ rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two ­third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice."
- Supreme Court

Case Title: Union of India Vs. K.A. Najeeb
Statute/Point of Law Involved: Unlawful Activities Prevention Act, 1967

Access Copy of Judgment Here