Union of India v. K.A. Najeeb (2021) - Granting of Bail in UAPA Case

Brief

The following order deals one Professor TJ Joseph while framing the Malayalam question paper for the second semester B.Com. Examination at the Newman College, Thodupuzha, he had included a question which was considered questionable against a particular religion by certain sections of society. Subsequently, the respondent in association with other members of the Popular Front of India (PFI), decided to avenge this purported act of blasphemy

• JUDGEMENT SUMMARY: Union of India v. K.A. Najeeb
• DATE OF JUDGEMENT: 01^st February, 2021
• JUDGES: Mr. Justice Judge N.V. Ramana, Mr. Justice Judge Surya Kant & Mr. Justice Judge Aniruddha Bose.

PARTIES

• Union of India (Plaintiff)
• K.A. Najeeb (Respondent)

SUBJECT

The following order deals one Professor TJ Joseph while framing the Malayalam question paper for the second semester B.Com. Examination at the Newman College, Thodupuzha, he had included a question which was considered questionable against a particular religion by certain sections of society. Subsequently, the respondent in association with other members of the Popular Front of India (PFI), decided to avenge this purported act of blasphemy. Following on 04.07.2010 at about 8AM, a group of people with a common object, attacked the victim (professor) while he was returning home with his mother and sister after attending Sunday mass at a local Church. During the attack, members of the PFI forcefully intercepted the victim’s car, restrained him and chopped off 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. Due to the consequences of the above mentioned events, an FIR was consequently lodged against the attackers by the victim (professor’s wife) under Sections 143, 147, 148, 120­B, 341, 427, 323, 324, 326, 506(H), 307, 149 of IPC; and Section 3 of Explosive Substances Act.

AN OVERVIEW

1. It emerged over the course of investigation that the attack was part of a larger conspiracy involving meticulous pre­planning, numerous failed attempts and use of dangerous weapons.
2. It was alleged at the time that the respondent was one of the main conspirators, but keeping in mind that owing to him being untraceable, the respondent was declared an absconder and his trial was split up from the rest of his co­conspirators.
3. Additionally, the co­accused 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.
4. The respondent is now facing trial, after the respondent could be arrested on 10.04.2015 only and a chargesheet was re­filed by the National Investigation Agency against him.
5. Following this, 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 the other co­accused who had been enlarged on bail or acquitted.
6. The appeal for 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, himself waited near the place of occurrence, transported the perpetrators, sheltered, and medically assisted them afterwards.
7. The Courts were under the main impression, of the view that the bar against grant of bail under Section 43­D (5) of the UAPA was used.
8. The respondent again approached the High Court in May, 2019 for the third time, questioning the Special Court’s order denying bail. The High Court through the impugned order, released the respondent on bail noting that the trial was yet to begin though the respondent had been in custody for four years now. The conduction of the aforementioned bail order was, however, stayed by this Court. Resulting in the respondent sspending nearly five years and five months in judicial custody.

IMPORTANT PROVISIONS

Indian Penal Code:

• Section 143- Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both
• Section 147- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Section 148- rioting, armed with deadly weapon. —Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
• Section 149- It provides for vicarious liability of members of an unlawful assembly for the crime committed by any member of the assembly in furtherance of the common object and makes them liable for the same punishment.
• Section 120 (B)- Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted.

UAPA (Unlawful Activities Prevention Act)

• Section 43­D(5)- 'Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”

ISSUES

(Brought up by the appellant)

• It was argued by the learned counsel on behalf of the appellant that the High Court erred in granting bail without adverting to the statutory Section 43­D(5) of UAPA. It was argued that, the bail proceedings under the special enactment were distinct and the Courts are duty­bound to refuse bail where the suspect is prima facie believed to be guilty. In response to this issue, Learned Senior Counsel appearing for the respondent, highlighted that many of the co­accused had been acquitted, and although a few had been convicted as well, but those convicts had also been awarded a sentence of not more than eight years. Taking into account how the respondent has already suffered incarceration of almost five­and­a­half 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 further argued that once the High Court had exercised discretion to grant bail, the same ought not to be interfered with except in rare circumstances.

ANALYSIS OF THE JUDGEMENT

1. Puran (supra) stated against the issued push forward by the appellant that, wherein the Court observed that bail 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.
2. In this case, 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. The reason for their decision is that, laying 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 under trial on bail.
3. Consequently, the Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years’ incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43­D(5) of UAPA
4. It was then argued that, 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. Thus leading that two­third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.
5. In addition to that, in 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 made certain 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.
6. The Court made a conscious decision that, the charges levelled against the respondent are grave and a serious threat to societal harmony. If the case had it been at the threshold, the decision would have out rightly turned down the respondent’s prayer. Hence, 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. A resolution 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.
7. Another reason for the Respondent to get bail is that Section 43­D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Not like the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre­condition under the UAPA. In addition, Section 43­D (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

The nature of allegations against the appellant are very serious. In copulation of all the facts and merits of the case it was denounced that, besides the condition to be imposed by the trial Court while releasing the respondent, it would serve the best interest of justice and the society­at­large to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10 A.M. at the local police station and inform in writing that he is not involved in any other new crime. In addition measures were taken so that the respondent shall also refrain from participating in any activity which might enrage communal sentiments. Adding to the above decision, it was also agreed upon by the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith. Concluding, the appeal is accordingly dismissed subject to above­ stated directions given by the Court.