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TMI Blog2024 (7) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure, 1973 (Cr.P.C.) in Crime No. 01 of 2015 registered under Sections 489B and 489C of the Indian Penal Code, 1860 ('IPC' for short) and under Section 16 of the Unlawful Activities (Prevention) Act, 1967 ('UAP Act' for short) before Police Station ATS, Uttar Pradesh, District Lucknow. 4. This Court by order dated 10.04.2024 condoned the delay in filing the related Special Leave Petition (Criminal) Diary No. 11387 of 2024 and issued notice. On delay being condoned, the case came to be registered as Special Leave Petition (Criminal) No. 5260 of 2024. The matter was heard by the Vacation Bench on 03.07.2024. 5. First Information Report (FIR) was lodged against the appellant by the informant Inspector Tej Bahadur Singh under Sections 121A, 489B and 489C of IPC. It came to be registered as Crime No. 01 of 2015. Informant stated that fake Indian currency notes of the denomination of Rs. 1,000 and Rs. 500, totalling a sum of Rs. 26,03,500.00, were recovered from the possession of the appellant on 22.02.2015 at about 09:10 PM from the Indo3 Nepal border. He was apprehended by a constable of the ATS team and brought to the ATS Headquarter. In the course of investigation, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2016 passed by the trial court whereby the application for discharge moved by the appellant was rejected. He also sought for quashing of the order dated 16.07.2016 passed by the trial court framing charge against the appellant. 11.1. The High Court by the order dated 08.10.2021 took the view that no cognizance could have been taken by the trial court against the appellant in the absence of any valid sanction of prosecution for the offence under Section 16 of the UAP Act. The High Court held that although sanction for prosecution had been obtained, yet the same was not based upon recommendation after an independent review of the evidence collected during the course of investigation by the appropriate authority as required under Section 45 (2) of the UAP Act. According to the High Court, it was a clear case of non-application of mind as the State failed to comply with the mandatory statutory provision under Section 45 of the UAP Act. Thus, the sanction orders dated 25.08.2015 and 13.01.2017 were held to be invalid. Therefore, the trial court was barred from taking cognizance under Section 16 of the UAP Act. Consequently, the order of cognizance dated 27.05.2016 passed by the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima Prasad, learned Additional Advocate General for the State of U.P. submits that the charges against the appellant are very serious in nature. Besides, he being a foreign national, there is an attendant flight risk. Therefore, appellant may not be released on bail; instead the trial court may be directed to expedite the trial. Referring to the counter affidavit filed on behalf of the State of U.P., she submits that appellant is an accused under the UAP Act and is, therefore, not entitled to bail. In this connection, she has referred to a recent decision of this Court in Gurwinder Singh Vs. State of Punjab (2024) SCC Online SC 109. 17. Submissions made by learned counsel for the parties have been duly considered. 18. We have already noticed that the appellant is in jail since 23.02.2015. Now we are in July 2024. Nine years have gone by in the meanwhile. As per the impugned order, evidence of only two witnesses have been recorded. In the course of hearing, the Bench had queried learned counsel for the parties as to the stage of the trial; how many witnesses the prosecution seeks to examine and evidence of the number of witnesses recorded so far. Unfortunately, counsel for either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o fine. 20.2. Section 43D of the UAP Act says that there shall be modified application of certain provisions of the Cr.P.C. As per sub-section (5) of Section 43D, which starts with a non-obstante clause, notwithstanding anything contained in the Cr.P.C, no person accused of an offence punishable under Chapters IV (which includes Section 16) and VI of the UAP 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 bail application. The proviso says 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 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima-facie true. Sub-section (6) clarifies that the restrictions on granting of bail specified in sub-Section (5) would be in addition to the restrictions under the Cr.P.C. or any other law for the time being in force on granting of bail. 21. It is true that the appellant is facing charges under Section 489B IPC and under Section 16 of the UAP Act which carries a maximum sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of the crime. 20. We may hasten to add that the petitioner is still an accused; not a convict. The overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be. 21. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution. 24. Earlier, in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) Vs. Union of India (1994) 6 SCC 731, this Court had issued a slue of directions relating to undertrials in jail facing charges under the Narcotic Drugs and Psychotropic Substances Act, 1985 (briefly, the 'NDPS Act' hereinafter) for a period exceeding two years on account of the delay in disposal of the cases lodged against them. In respect of undertrials who were foreigners, this Court directed that the Special Judge should impound their passports besides insisting on a certificate of assurance from the concerned Embassy/High Commission of the country to which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in K.A. Najeeb (supra) was in jail for more than five years. Charges were framed only on 27.11.2020 and there were 276 witnesses still left to be examined. This Court emphasized that liberty granted by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and speedy trial. No undertrial can be detained indefinitely pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail. 27.2. Referring to the decision of this Court in NIA Vs. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, this Court opined that the High Court in that case had virtually conducted a mini trial and determined admissibility of certain evidence which clearly exceeded the limited scope of a bail proceeding. Not only was it beyond the statutory mandate of prima-facie assessment under Section 43D (5) of the UAP Act, it was premature and possibly would have prejudiced the trial as well. It was in these circumstances that this Court in Zahoor Ahmad Shah Watali (supra) had to intervene le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43D (5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act 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 UAPA. Instead, Section 43D (5) of the 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. 29.1. Declining to interfering with the order of the High Court, this Court in K.A. Najeeb (supra) dismissed the appeal of the Union of India. 30. Recently, this Court dealt with a matter where the appellant, a foreign nation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions warranted by law. Bail conditions cannot be so onerous as to frustrate the order of bail itself. For example, the Court may impose a condition of periodically reporting to the police station/Court or not travelling abroad without prior permission. Where circumstances require, the Court may impose a condition restraining an accused from entering a particular area to protect the prosecution witnesses or the victims. But the Court cannot impose a condition on the accused to keep the Police constantly informed about his movement from one place to another. The object of the bail condition cannot be to keep a constant vigil on the movements of the accused enlarged on bail. The investigating agency cannot be permitted to continuously peep into the private life of the accused enlarged on bail, by imposing arbitrary conditions since that will violate the right of privacy of the accused, as guaranteed by Article 21. If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy. The reason is that the effect of keeping such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused whose trial had concluded whereupon they were sentenced to imprisonment of eight years; but in Gurwinder Singh, the trial was already underway and that twenty two witnesses including the protected witnesses have been examined. It was in that context, the two Judge Bench of this Court in Gurwinder Singh observed that mere delay in trial pertaining to grave offences cannot be used as a ground to grant bail. 32. This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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