2021 (2) TMI 1380 - HC - Indian Laws

Approach of NIA Court in granting bail despite earlier rejections - delay in trial proceedings before the NIA Court and the respondent languishing in jail for more than six years - Offences punishable u/s 125 of the Indian Penal Code (IPC) and Sections 16 18 and 20 of the Unlawful Activities (Prevention) Act 1967 (UAPA) - Applicability of proviso to Section 43D(5) of the UAPA - Violation of Right to fair and speedy trial under Article 21 of the Constitution - non-consideration of relevant material and aspects while grant of bail - HELD THAT - Merely because some prosecution witnesses had been examined some of whom had turned hostile could not be a ground to revisit findings on merits rendered twice over when earlier bail applications of the respondent were rejected. If such procedure of moving bail applications on merits upon examination of some prosecution witnesses is permitted there would be no end to such applications being moved by the accused thereby derailing the trial proceedings and asking the courts to revisit findings on merits on half baked evidence. If such an approach is permitted the accused may move successive bail applications during the course of examination of further prosecution witnesses and conversely the prosecution may move applications for cancellation of bail already granted by relying on evidence brought on record during the course of examination of prosecution witnesses. This cannot be permitted. This aspect was completely ignored by the NIA Court while passing the impugned order. We are of the opinion that the fresh grounds on which the NIA Court proceeded in the present case in favour of the respondent cannot be said to be fresh grounds at all and merely because some of the prosecution witnesses stood already examined it could not be a ground for re-visiting the findings already rendered against the respondent. Learned A.S.G. was also justified in relying upon the judgment of the Hon ble Supreme Court in Ram Govind Upadhyay 2002 (3) TMI 945 - SUPREME COURT wherein the Hon ble Supreme Court referred to the consideration pertaining to grant of bail and cancellation of an order granting bail. It was laid down that non-consideration of relevant material and aspects while grant of bail and ignoring relevant material could be a ground for interfering with an order granting bail in the present case. We are of the opinion that such approach cannot be countenanced particularly in the backdrop of the fact that the finding regarding prima facie truth about the accusations had been rendered twice over against the respondent when the earlier two bail applications were rejected on merits. We are of the opinion that the NIA Court certainly ignored relevant considerations including the reasoning given in earlier orders rejecting the applications for bail on merits. We are of the opinion that considering evidence of 49 witnesses already examined when 107 witnesses remained to be examined was an irrelevant consideration taken into account by the NIA Court while holding in favour of the respondent by the impugned judgment and order. We are of the opinion that such findings rendered on the touchstone of proviso to Section 43D(5) of the UAPA do not deserve to be re-visited by detailed consideration of the charge-sheet again merely because some prosecution witnesses have been examined which according to the respondent do not seem to support the case of the prosecution. It would not be appropriate to comment upon the merits of the rival contentions. Suffice it to say that we believe that the findings rendered in the orders rejecting the earlier two bail applications of the respondent were justified. Therefore insofar as the aforesaid aspect of the matter is concerned the impugned judgment and order passed by the NIA Court cannot be sustained. Right to fair and speedy trial is a right recognized under Article 21 of the Constitution of India - In the present case the NIA Court has categorized the respondent in category (b) and by applying the ratio of Shaheen Welfare Association 1996 (2) TMI 597 - SUPREME COURT it has been held that since the respondent has spent more than five years in jail as an undertrial he deserved to be granted bail subject to two stipulations being satisfied. It was found that these two stipulations were firstly that there was no likelihood of the trial being completed in the next six months and secondly that the respondent did not have any antecedents or that if released he would not be harmful to the complainant and witnesses or their family members. It is an admitted position that the proceedings under the NIA Act are undertaken by the NIA Court once in every week and that the said court is also dealing with cases pertaining to other Special Acts like the MCOCA TADA POTA etc. Therefore there is every likelihood of the trial continuing for the next few years. There is also no dispute about the fact that even if convicted for the offence with which the respondent is charged he could be sentenced for imprisonment for a period ranging between five years and life imprisonment. It is crucial that the respondent has undergone more than six years as an undertrial. We are conscious of the fact that even a sentence of life imprisonment can be imposed for the offence with which the respondent has been charged under the UAPA and the IPC but we cannot ignore the fact that the sentence could range between five years to imprisonment for life. This is particularly significant in the backdrop of the fact that the respondent has admittedly already undergone incarceration for more than six years while the trial is underway before the NIA Court. Looking to the pace at which about 51 witnesses have been examined which took more than five years for the NIA Court there is clearly no likelihood of the trial being completed within a reasonable time in the near future. Therefore we are of the opinion that on this aspect no error can be attributed to the impugned judgment and order passed by the NIA Court while holding in favour of the respondent. Whether it can be said that releasing the respondent would amount to prejudicially affecting the trial and whether there would be possibility of influencing the witnesses and tampering with the evidence - We have observed that the respondent is an educated person who was completing his graduation in Civil Engineering when he left for Iraq at the age of 21 years. He categorically stated before us that as a 21 year old he was carried away and that he had committed a serious mistake for which he had already spent more than six years behind bars. In the past more than six years of his incarceration the respondent has argued his case on his own before the NIA Court. He represented his own case before this Court as well as the NIA Court and we could find that he was presenting his case by maintaining decorum and in a proper manner. During the course of hearing it transpired that his father is a doctor of Unani medicine and his sisters are also doctors. His brother is an engineer. This shows that he comes from an educated family and that if stringent conditions are imposed upon him with an undertaking to cooperate with the trial proceedings before the NIA Court his release on bail may not be harmful to the society at large and it would not adversely affect the trial proceedings before the NIA Court. Therefore we are of the opinion that on the second aspect of the matter the findings rendered by the NIA Court need to be upheld. Thus although we have held that the findings rendered by the NIA Court on the merits of the matter in the impugned judgment and order are unsustainable and consequently they are set aside on the second aspect of the matter pertaining to the long pendency of the trial and the respondent having already undergone incarceration for more than six years we are inclined to uphold the impugned order on the said ground. Yet we intend to impose further stringent conditions on the respondent while upholding his release on bail. Consequently part of the impugned order deserves to be modified by imposition of further conditions. Hence the following order that - The impugned order dated 17/03/2020 passed by the NIA Court granting bail to the respondent accused is sustained on the ground of the respondent-accused having already undergone incarceration for more than six years and likelihood of the trial being delayed for considerable period - The respondent-accused Areeb Ejaz Majeed is released on bail The appeal stands disposed of in above terms.

Summary

Issues Involved:
1. Legitimacy of the NIA Court's decision to grant bail based on the pace of the trial and the examination of witnesses.
2. Applicability of the Supreme Court's judgment in Shaheen Welfare Association v. Union of India & Ors.
3. Consideration of the respondent's prolonged custody and the right to a speedy trial.

Summary:

1. Legitimacy of the NIA Court's Decision to Grant Bail:
The NIA challenged the NIA Court's order dated 17/03/2020, which granted bail to the respondent, arguing that the court erroneously applied two aspects: the slow pace of the trial and the examination of witnesses. The NIA contended that the NIA Court's decision to grant bail based on the examination of 49 witnesses, some of whom turned hostile, was flawed. The court held that merely because some prosecution witnesses were examined, it could not be a ground to revisit findings on merits rendered twice over when earlier bail applications were rejected. The court emphasized that the NIA Court failed to reference the reasoning in earlier orders rejecting bail, which was necessary before taking a departure and holding in favor of the respondent.

2. Applicability of the Supreme Court's Judgment in Shaheen Welfare Association v. Union of India & Ors.:
The NIA Court categorized the respondent in category (b) as per the Supreme Court's judgment in Shaheen Welfare Association, which allows bail for undertrials who have spent a significant time in custody. The court found that the respondent had spent more than six years in jail, and the trial was proceeding slowly. The court upheld this categorization, noting that the respondent had undergone more than six years of incarceration and that the trial was unlikely to be completed within a reasonable time. The court emphasized the right to a speedy trial under Article 21 of the Constitution and recognized the need to balance the rights of the individual and society.

3. Consideration of the Respondent's Prolonged Custody and the Right to a Speedy Trial:
The court acknowledged the respondent's argument that he had already spent more than six years in custody and that the trial was proceeding at a slow pace. The court noted that the respondent had no antecedents and came from an educated family. The court imposed stringent conditions on the respondent's bail, including reporting to the police station and cooperating with the trial proceedings. The court held that the respondent's release on bail, subject to these conditions, would not be harmful to society and would not adversely affect the trial proceedings.

Order:
The court upheld the NIA Court's decision to grant bail to the respondent on the ground of prolonged custody and the likelihood of trial delay. The court imposed additional stringent conditions on the respondent's bail, including reporting to the police station, surrendering his passport, and not making any statements regarding the proceedings in any form of media. The court rejected the NIA's oral prayer for a stay of the order. The appeal was disposed of in the above terms.