9911796707
TMI Blog2021 (2) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, as a consequence of which, the respondent has continued in custody. 2. The facts, in brief, leading to filing of the present appeal are that on 28/11/2014, a First Information Report ("FIR") was registered at the behest of the NIA against the respondent for offences punishable under Section 125 of the Indian Penal Code ("IPC") and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 ("UAPA"). It was the case of the NIA that the respondent along with three absconding accused persons had visited Iraq ostensibly for pilgrimage along with other persons, who were on pilgrimage but, the accused persons including the respondent never visited the sites of pilgrimage and, instead, escaped into Iraq and Syria with the intention of indulging in jihadi activities by joining Islamic State for Iraq and Levant ("ISIL"). According to the NIA, the said accused persons including the respondent herein formed an unlawful association with an intention to promote terrorism in Iraq, Syria and India. They also participated in terrorist activities in Syria and Iraq and they were likely to commit such acts in India also. The respondent had allegedly returned to India with the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the law laid down by the Hon'ble Supreme Court in Shaheen Welfare Assocation v. Union of India & Ors. [(1996) 2 SCC 616] applied in favour of the respondent, the bail application could be granted on the said aspect of the matter. Secondly, the NIA Court considered the material on record, particularly, the depositions of witnesses, who were already examined by the prosecution and it reached a finding that at that particular stage when about 49 witnesses were already examined, the prosecution had not succeeded to prove prima facie case. On this basis, referring to Section 43D(5) of the UAPA, the NIA Court held in favour of the respondent on this aspect also and granted relief to the respondent. 7. Mr. Anil Singh, learned Additional Solicitor General ("ASG") appeared on behalf of the appellant-NIA and submitted that the aforesaid two aspects on which the NIA Court had held in favour of the respondent, were erroneously applied in the facts and circumstances of the present case. As regards the approach of the NIA Court regarding the merits of the matter, it was vehemently submitted that when the two earlier bail applications had been rejected on merits after filing of the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Hon'ble Supreme Court in the case of Kalyan Chandr Sarkar v. Rajesh Ranjan & Anr. [(2004) 7 SCC 528]. 9. It was also submitted that although the considerations for grant of bail and those for cancellation of an order of bail are independent and do not overlap with each other, since in the present case, the NIA Court completely misdirected itself and considered irrelevant material while ignoring relevant material including earlier orders rejecting bail to the respondent, the impugned judgment and order deserved to be interfered with. It was submitted that the NIA Court while passing the impugned judgment and order completely failed to appreciate the settled law in this regard. Learned ASG placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ram Govind Upadhyay v. Sudarshan Singh & Ors. [(2002) 3 SCC 598]. 10. Learned A.S.G. further submitted that as many as 107 witnesses are yet to be examined by the NIA Court and, therefore, this was not a stage where the NIA Court could have jumped to the conclusion that it could not be concluded that the prosecution would certainly develop a chain of evidences to reach the desired destination of guilt of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the detailed charge-sheet in the present case demonstrated the voluminous material available against the respondent in respect of the offences with which he has been charged and in the face of the two bail applications already dismissed on merits after filing of the charge-sheet, there was absolutely no reason for the NIA Court to have allowed the bail application of the respondent by the impugned judgment and order. Learned A.S.G. placed reliance on the judgment of the Hon'ble Supreme Court in the case of NIA v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1], which pertains to the question of grant of bail to an accused person charged with offences under the UAPA. It was submitted that releasing the respondent on bail would put the witnesses to risk of being pressurized and that the proceedings before the trial court would be prejudicially affected. 13. As regards the second aspect of the matter which had impressed the NIA Court i.e. the fact that the respondent was behind bars for six years and the trial was proceeding at a slow pace, learned A.S.G. submitted that the NIA Court had erred on this aspect also. It was submitted that the NIA Court, during the pendency of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to represent his own case. We have no hesitation to observe that the respondent maintained decorum throughout the hearing conducted before us and, he sought to demonstrate why the contentions raised on behalf of the NIA were unsustainable. 16. On the aspect as to whether the NIA Court could consider depositions of the witnesses already examined and whether this could be a change in circumstances for consideration of third bail application on merits moved by the respondent, he submitted that 12 of the witnesses out of 49 witnesses examined by the NIA had already turned hostile and they had to be cross-examined by the prosecutor himself. It was submitted that when key witnesses, on whom the NIA was relying, had not been able to support the case against the respondent, he was entitled to approach the court for consideration of his bail application on merits. It was submitted that nothing prevented the NIA Court to take into consideration this vital aspect of the matter while allowing the bail application. 17. It was submitted that the entire case against the respondent was cooked up by NIA and there was no material to support the allegations made against the respondent. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the respondent had posed with a gun in his hand, did not ipso facto demonstrate that the accusations made against him could be said to be true. As regards the alleged transit pass issued by ISIL, it was submitted that the purported transit date on the said document shows that it was issued in December, 2014 while the respondent had already returned to India and stood arrested by the NIA on 29/11/2014 itself. As regards the video clipping shown to this court, it was submitted that nowhere, did the persons seen in the video ever take the name of the respondent and, there was no connection even prima facie, established between the contents of the video clipping and the respondent herein. Thus, it was submitted that the NIA Court was justified in rendering a finding that at this stage, the prosecution was unable to bring on record material to show a prima facie case against the respondent and that it could not be concluded that the prosecution could develop a chain of evidences to show the guilt of the respondent. 19. As regards the aspect of delay in trial proceedings before the NIA Court and the respondent languishing in jail for more than six years, it was submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations had been rejected on merits after perusing the detailed material on record in the form of the charge-sheet and findings rendered against the respondent, on the touchstone of proviso to Section 43D(5) of the UAPA. It is also necessary to consider the specific contention raised on behalf of the appellant-NIA that the bail application ought not to be permitted to be moved by the accused in the midst of the trial, after some of the prosecution witnesses had been examined, on the basis that the material that had come on record did not seem to support the case of the prosecution. It was submitted that the examination of some of the prosecution witnesses could not be said to be a change in circumstance for the accused to move such bail application and that the proceedings in the trial ought to be permitted to be continued uninterrupted. 22. We have heard learned A.S.G. appearing for the appellant and respondent-accused in-person. With their assistance, perused copies of the charge-sheet and documents placed on record by the appellant. In the present case, there is no dispute about the fact that the bail application which stood allowed by the impugned judgment and order was the thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect was completely ignored by the NIA Court while passing the impugned order. 24. Apart from the fact that there was no reference to the reasoning adopted by the NIA Court, as well as this court, while rejecting the earlier two bail applications on merits, the findings rendered in favour of the respondent in the impugned judgment and order on merits also appear to be flawed. This would be evident from the following extract from the impugned judgment and order. "17. The prosecution has relied upon many social web site accounts allegedly opened and operated by applicant. The screen shots of activities of those accounts including chatting and other relevant material is flooded in the prosecution case. Prosecution ahs also examined the cyber technicians to bring on record that those activities were conducted through the applicant's social media accounts. However, the prosecution, at this stage, is unable to bring any such material covering section 16 of the UAP Act for the 'terrorist-act'. The submission of SPP Gonsalvis on the other hand is acceptable that the present prosecution case is based entirely upon the circumstantial evidence and bit by bit the chain of incidents will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we must note though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on four occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of superior court rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 29. But, the case of the respondent on the second aspect of the matter appears to be on firm footing. There is no dispute about the fact that right to fair and speedy trial is a right recognized under Article 21 of the Constitution of India. The Hon'ble Supreme Court and various High Courts, including this court, have consistently held that the undertrials cannot be allowed to languish for years together in jail, while the trials proceed at snail's pace. If ultimately, the accused are found to be not guilty, the number of years, months and days spent by such accused as undertrials in jail, can never be given back to them and this is certainly a violation of their valuable right under Article 21 of the Constitution of India. Therefore, right to speedy trial has been recognized and reaffirmed consistently by the judgments of the superior courts. 30. In cases where the accused are facing charges un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt did not have any antecedents or that, if released, he would not be harmful to the complainant and witnesses or their family members. 34. It needs to be examined that whether the NIA Court was justified in holding that the respondent could be categorized in category (b) as indicated in the judgment of Shaheen Welfare Association (supra) and further as to whether he satisfied the aforesaid two stipulations. 35. In the present case, the respondent has been charged with offences under Sections 16 and 18 of the UAPA apart from Section 125 of the IPC. There is no dispute about the fact that the charge under Section 20 of the UAPA was not framed by the NIA Court itself against the respondent despite the fact that offence under the said section was registered against him. Section 16 of the UAPA pertains to punishment for a terrorist act and it is specified therein that if death has resulted as a consequence of such terrorist act, the accused could be punished with sentence of death or imprisonment for life. It was further specified that in any other case, the sentence could be imprisonment for life or for a sentence, which shall be not less than five years. Section 18 of the UAPA pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of years, needs to be applied in the case of respondent. In this context, it is necessary to keep in mind that the respondent is accused of offences under the Special Act i.e. the UAPA. 38. It is in this context of the aforesaid Special Act like the UAPA that the Hon'ble Supreme Court has rendered the latest pronouncement in the case of K.A. Najeeb (supra). While considering the stringent provisions of the Special Acts i.e. the UAPA pertaining to bail, the Hon'ble Supreme Court has held as follows: 18. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. 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. 41. 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. In view of the above, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill conclusion of the trial. (vi) In case he remains absent and arrest warrant is issued against him, then he would not be again released on bail unless special reasons are shown. (vii) The respondent-accused shall surrender his passport, if any, immediately with case incharge NIA officer. (viii)The respondent-accused shall not make any statement regarding the aforesaid proceedings pending before the NIA Court in any form of media i.e. print media, electronic media, etc. including social media. (ix) The respondent-accused shall not indulge in any activity similar to the activities on the basis of which the said FIR stood registered against him for offences under the IPC and UAPA. (x) The respondent-accused shall not try to establish communication with co-accused or any other person involved directly or indirectly in similar activities or make any international call to any person indulging in similar activities as alleged against him, through any mode of communication. (c) The respondent-accused shall co-operate for expeditious disposal of the trial and, in case, the delay is caused by him, then his bail would be liable to be cancelled. (d) The respondent-accused shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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