A Supreme Court bench of Justices Ajay Rastogi and Abhay S. Oka has, on Wednesday, held that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge him or her on bail.
“While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice,” Justice Rastogi, who authored the judgment, wrote.
In the instant case, Ashim @Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya vs. National Investigation Agency, both the trial court and the Calcutta High Court had rejected the plea of 14 accused persons seeking post arrest bail in February 2020 and March 2021 respectively. The allegations were under Sections 120B, 121, 121A and 122 of the Indian Penal Code, Section 25(1A) of the Arms Act, 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18, 20, and 40(1)(b)(c) of the Unlawful Activities (Prevention) Act, 1967 (UAPA).
The case was registered in 2012. Of the 14 accused, five are absconding.
The Supreme Court bench noted that there are 298 prosecution witnesses as referred to in the charge sheet, but the prosecution claimed that it would examine only 100 to 105 prosecution witnesses. The bench found that the charges against the accused appellant are undoubtedly serious, but emphasised that they would have to be balanced with certain other factors like the period of incarceration which the appellant has undergone and the likely period within which the trial could be expected to be finally concluded.
The bench also noted that the appellant is 74 years old.
The bench noted with dismay that after the charge-sheets came to filed way back in 2012, the charges had been framed by the competent court only on June 20, 2019. The bench also noted that the recording of the statement of the de-facto complainant had still not been completed, and the trial may take its own time to conclude.
As the appellant has been in custody since July 6, 2012, he has completed nine and half years of incarceration as an undertrial prisoner, the bench emphasised.
The bench relied on the previous decision delivered by its three-judge bench earlier this year in Union of India vs. K.A. Najeeb, wherein it was held that Section 43D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution.
The bench was of the view that both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction could be well harmonised.
“Whereas at commencement of proceedings, the 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,” the previous bench had reasoned in K.A.Najeeb.
The Supreme Court took note of the fact that only one special court has been designated by the state of West Bengal to try National Investigation Agency (NIA) cases. When the bench learnt that hearing in this case is taking place only one day in a month, it concluded that it would frustrate the very purpose with which the special courts are designated.
The bench, therefore, directed the West Bengal government to designate more courts of Sessions as Special Courts for the trial offences specified in the schedule appended to the NIA Act, 2008. The bench also advised the Centre to consult the Chief Justice of the Calcutta High Court to ensure trials go ahead speedily in all NIA cases.
