The Supreme Court on Monday ruled that a two-judge bench had violated “judicial discipline” by denying bail to Delhi riots accused Umar Khalid and Sharjeel Imam earlier this year, despite a three-judge bench ruling in the K.A. Najeeb case that underlined that bail should be a rule even in offences with stringent conditions.
The Najeeb case is a landmark Supreme Court judgment delivered in 2021 regarding bail under the Unlawful Activities (Prevention) Act (UAPA).
On January 5, the two-judge bench of Justices Aravind Kumar and N.V. Anjaria refused bail to Khalid and Imam and said they could file fresh applications following the examination of protected witnesses after one year.
In its order pronounced on Monday, a bench of Justices B.V. Nagarathna and Ujjal Bhuyan criticised various aspects of the January 5 judgment, including foreclosing the right of the two appellants to seek bail for one year.
The bench said the January 5 judgment did not properly follow the ruling in the Najeeb case, which recognised long delay in trial as a ground for bail in cases under the UAPA and can override
the statutory restrictions on bail under Section 43D(5) of the Act.
“We have serious reservations on various aspects of the judgment in Gulfisha Fatima, (Umar Khalid and Sharjeel Imam), including foreclosing the right of the two appellants to seek bail for a period of one year. The judgment in Gulfisha Fatima would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5) (stringent conditions for bail) justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with,” the apex court observed.
“In the K.A. Najeeb case, a three-judge bench of this court was clear and unequivocal in holding that 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 the accused on bail,” it added.
The court said the presence of “statutory restrictions like Section 43D(5) (stringent conditions of bail) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution (fundamental rights)”.
Section 43-D(5) is subordinate to Article 21 (life and personal liberty) at all times and a constitutional court need not hold back bail to the accused under it, the bench said.
The apex court said that the often invoked phrase — “bail is the rule and jail is the exception” — was not merely an empty statutory slogan flowing from the CrPC.
“It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence, which is the cornerstone of any civilised society governed by the rule of law,” it said.
The bench passed the judgment while granting bail to Handwara resident Syed Iftikhar Andrabi in a narco-terror case probed by the National Investigation Agency, which had accused him of using the drug proceeds to fund terror activities in the country and being in close touch with Pakistani terror groups.
Quoting parliamentary statistics, the apex court on Monday noted that the countrywide percentage of convictions under the UAPA between 2019 and 2023 hovered between 2-6 per cent, which means there is a 94-98 per cent possibility of acquittal in such cases.