The Supreme Court on Friday requested the Chief Justice to constitute an appropriate larger bench to examine whether accused persons in cases booked under special laws such as the UAPA can be granted bail solely on the ground of prolonged incarceration.

This comes in the backdrop of a controversy arising out of the court’s January 5 judgment rejecting the bail plea of 2020 Delhi riots accused Umar Khalid and Sharjeel Imam.

On Friday, Delhi High Court granted three-day interim bail to Khalid to attend to his ailing mother, who will undergo a surgery.

"Having regard to the importance of the issue, we are of the view that the questions requiring consideration need not be confined to the correctness of any one decision. The controversy raises a broader question concerning the manner in which constitutional courts are to approach bail where prolonged incarceration is asserted in prosecutions governed by special statutes imposing restrictive bail conditions.

"In this background it would be imperative for the appropriate bench that may be constituted by the Hon’ble Chief Justice of India, to clarify or expound the position of law laid down in K.A. Najeeb’s case, particularly in the backdrop of the rigour of 43D(5) which imposes restriction consciously and has received the assent of Parliament, which obviously was brought in keeping in mind the valuable right enshrined in Article 21 (life and liberty) of the Constitution," a bench of Justices Aravind Kumar and Prasanna B. Varale said in a judgment.

The bench also granted bail to Delhi riots accused Tasleem Ahmed and Khalid Saifi, while expressing its displeasure over the manner in which another two-judge bench of the Supreme Court had on May 18 passed critical observations for not granting bail to Khalid and Imam.

A bench of Justices B.V. Nagarathna and Ujjal Bhuyan had ruled that the other bench of Justices Kumar and N.V. Anjaria had violated “judicial discipline” by denying bail early this year to Khalid and Imam despite a three-judge bench in the "Union of India vs K.A. Najeeb" ruling that "bail is the rule and jail exception" even in offences related to terror or narcotic drugs and psychotropic substances where stringent bail conditions are prescribed by the legislature.

On Friday, the bench headed by Justice Aravind observed while responding to the criticism over denial of bail to Khalid and Imam: "The ratio of K.A. Najeeb (supra), therefore, is neither a charter for indefinite incarceration under the cover of Section 43D(5), nor a mathematical command that the mere passage of time, divorced from all surrounding circumstances, must automatically result in bail...."

"The proposition that lapse of time by itself must compel bail in every case under the UAPA (Unlawful Activities Prevention Act) may have serious consequences. Such an approach may leave little room for courts to examine the nature of allegations, centrality of role, protected witnesses, risk of intimidation, possibility of reactivation of networks, nature of delay and whether such delay is attributable to the accused himself/herself, public order concerns and national security implications."