2021 (7) TMI 1302 - HC - Indian Laws

Seeking grant of temporary bail - seeking release on temporary bail to join his family members in performing the last rites of his mother - HELD THAT - It may be appropriate to take cautious cognizance of the developments in the intervening period particularly on account of passage of time and consider the prayer to release the appellant on temporary bail purely on humanitarian ground. In the prevailing social construct the first death anniversary of an immediate family member has an element of religious personal and emotional significance. Admittedly the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism the prayer of the appellant is not unjustifiable. There is no reasonable ground to believe that the appellant may abscond. Nonetheless appropriate conditions are imposed upon the appellant an undertrial prisoner to take care of the possible apprehension of the prosecuting agency. Likewise charge-sheet has been lodged and the identity of the majority of witnesses is concealed. This takes care of the apprehension of tampering with evidence as well. The appellant can be released on temporary bail with effect from 13th August 2021 to 21st August 2021 subject to conditions imposed - application allowed.

Summary

Issues:
1. Rejection of application for temporary bail to perform last rites of mother.
2. Consideration of humanitarian grounds for temporary bail.
3. Applicability of UAPA provisions in granting temporary bail.
4. Comparison of regular bail and temporary bail considerations.
5. Assessment of new grounds raised in additional affidavit.
6. Legal reasoning behind the judgment granting temporary bail.

Issue 1: Rejection of Application for Temporary Bail:
The appeal challenged the rejection of the appellant's application for temporary bail to participate in the last rites of his deceased mother. The impugned order cited the rejection of the regular bail application and the seriousness of the accusations under UAPA as reasons for denial. The appellant sought release for three weeks to perform rituals on the first death anniversary of his mother, which was initially rejected.

Issue 2: Consideration of Humanitarian Grounds:
The court analyzed the humanitarian aspect of the case, emphasizing the emotional significance of participating in rituals for an immediate family member. It noted that the appellant's specific request was to join family members in performing rituals, not just attending the funeral. The court found the delay in performing rites due to Covid-19 restrictions and the appellant's inability to participate justified considering the appeal on humanitarian grounds.

Issue 3: Applicability of UAPA Provisions:
The judgment discussed the application of UAPA provisions, especially section 43D, which restricts bail in serious cases. The court observed that the NIA Court misapplied these provisions by not considering the humanitarian aspect of the temporary bail request separately from regular bail considerations, as mandated by the law.

Issue 4: Comparison of Regular and Temporary Bail:
The court differentiated between considerations for regular bail and temporary bail, highlighting the need for a distinct approach when assessing a temporary release for humanitarian reasons. It criticized the NIA Court for not adequately considering the humanitarian grounds in the initial decision.

Issue 5: Assessment of New Grounds in Additional Affidavit:
The appellant submitted new grounds in an additional affidavit, detailing the delayed rituals and proposing a specific schedule for performing rites. The respondent-NIA opposed these grounds, arguing that the reasons initially cited for temporary bail no longer existed. The court found the new grounds valid and relevant to the humanitarian aspect of the case.

Issue 6: Legal Reasoning for Granting Temporary Bail:
After considering all arguments, the court allowed the appeal partly and granted temporary bail to the appellant from 13th August 2021 to 21st August 2021. The judgment highlighted the appellant's cooperation with authorities, the absence of flight risk, and precautions to prevent tampering with evidence. The conditions imposed aimed to balance the humanitarian need for participation in rituals with legal requirements and security concerns.

This detailed analysis of the judgment covers all the issues involved, providing a comprehensive understanding of the legal reasoning and considerations leading to the decision to grant temporary bail.