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2024 (5) TMI 883 - SC - Indian LawsCommission of offences Under Sections 153A, 505(1b), 117 read with Section 34 of the Indian Penal Code, 1860 - violence broke out at a function organised by Elgar Parishad - in the said programme, provocative speeches were delivered and there were cultural performances which had the effect of creating enmity between caste groups, resulting in disruption of communal harmony, violence, and loss of life - HELD THAT - In the case of K.A. Najeeb v. Union of India 2021 (2) TMI 1212 - SUPREME COURT , a three Judge Bench of this Court (of which one of us Aniruddha Bose, J. was a party), has held that a Constitutional Court is not strictly bound by the prohibitory provisions of grant of bail in the 1967 Act and can exercise its constitutional jurisdiction to release an Accused on bail who has been incarcerated for a long period of time, relying on Article 21 of Constitution of India. This Court has already accepted right of an Accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in the case of Najeeb, and in that judgment, long period of incarceration was held to be a valid ground to enlarge an Accused on bail in spite of the bail- restricting provision of Section 43D(5) of the 1967 Act. Pre- conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an Accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same Accused. Depending on gravity and seriousness of the offence alleged to have been committed by an Accused, detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post-chargesheet stage. Once it is found that Section 43D(5) of the 1967 Act would not be applicable in the case of the Appellant, the case is required to examine the case of the Appellant in relation to accusation against her Under Section 13 of the 1967 Act and also other offences under the provisions of the 1860 Code, which we have narrated earlier. It is already indicated that she is a lady of advanced age, suffering from various ailments. The Appellant be is directed to be released on bail on such conditions the Special Court may consider fit and proper but the conditions shall include the following (a) The Appellant shall not leave the State of Maharashtra without leave of the Special Court. (b) The Appellant shall surrender her passport, if she possesses one, with the Special Court, during the period she remains enlarged on bail. (c) The Appellant shall inform the Investigating Officer of the NIA the address where she shall reside during the period she remains enlarged on bail. (d) The Appellant shall use only one mobile number, during the time she remains on bail, and shall inform her mobile number to the Investigating Officer of the NIA. (e) The Appellant shall also ensure that her mobile phone remains active and charged round the clock so that she remains constantly accessible throughout the period she remains enlarged on bail. (f) During this period, i.e. the period during which she remains on bail, the Appellant shall keep the location status (GPS) of her mobile phone active, twenty-four hours a day, and her phone shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the Appellants' exact location. (g) The Appellant, while on bail, shall report to the Station House Officer of the Police Station within whose jurisdiction she shall reside, once every fortnight. Appeal allowed.
Issues Involved:
1. Validity of the High Court's order directing the appellant to approach the Trial Court for bail. 2. Examination of the appellant's entitlement to bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA). 3. Applicability of Section 43D(5) of UAPA and its impact on the appellant's bail plea. 4. Consideration of the appellant's prolonged detention and health conditions in the context of bail. Summary: 1. Validity of the High Court's Order: The Supreme Court examined the High Court's order directing the appellant to approach the Trial Court for bail after the National Investigation Agency (NIA) filed a second supplementary chargesheet. The High Court opined that the Trial Court should first assess the new evidence. However, the Supreme Court noted that the High Court, as an appellate forum, had the jurisdiction to consider the second supplementary chargesheet and decide the bail plea, especially given the appellant's prolonged detention and health conditions. 2. Examination of the Appellant's Entitlement to Bail: The Supreme Court scrutinized the allegations against the appellant, including her alleged involvement with the Communist Party of India (Maoist) [CPI (Maoist)], a banned terrorist organization, and her participation in the Elgar Parishad event. The Court found no prima facie evidence of her active participation in terrorist acts or raising funds for terrorist activities. The materials presented, including witness statements and recovered documents, did not substantiate the accusations under Sections 16, 17, 18, 18B, 20, 38, 39, and 40 of UAPA. 3. Applicability of Section 43D(5) of UAPA: The Court analyzed whether the restrictions under Section 43D(5) of UAPA applied to the appellant's case. It concluded that the allegations did not meet the threshold of being "prima facie true" for the offences under Chapters IV and VI of UAPA. The Court emphasized that the materials presented did not demonstrate the appellant's involvement in terrorist acts, raising funds for terrorism, or being a member of a terrorist organization with the intent to further its activities. 4. Consideration of Prolonged Detention and Health Conditions: The Supreme Court highlighted the appellant's prolonged detention of nearly six years, her advanced age (over 66 years), and her medical conditions. Citing the case of K.A. Najeeb v. Union of India, the Court reiterated that prolonged incarceration without trial could justify bail under Article 21 of the Constitution of India. The Court found that the appellant's continued detention was not justified and directed her release on bail with specific conditions to ensure her availability for trial. Conclusion: The Supreme Court set aside the High Court's order and granted bail to the appellant, imposing conditions to ensure her compliance and availability for trial. The Court emphasized the importance of balancing the need for pre-trial detention with the appellant's right to liberty under Article 21 of the Constitution.
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