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UAPA doesn’t stop courts from granting bail when fundamental rights are violated, SC says

SC upheld bail granted to K.A. Najeeb, accused in Kerala UAPA case in which a professor's palm was chopped off, who had spent more than 5 yrs in jail as undertrial.

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New Delhi: The Supreme Court Monday ruled that the Unlawful Activities (Prevention) Act (UAPA) 1967 does not stop constitutional courts from granting bail on the grounds of violation of fundamental rights under the Constitution, and therefore, upheld the bail granted to an accused charged under the UAPA.

A three-judge bench comprising Justices N.V. Ramana, Surya Kant and Aniruddha Bose noted that the accused had been in jail for more than five years, and that 276 witnesses were yet to be examined. It then emphasised on the constitutional right to speedy trial to confirm the bail granted to the accused.

In regular criminal cases, bail is supposed to be the norm and pre-trial jail the exception. However, Section 43D(5) of the UAPA says a person accused of an offence under Chapters IV and VI of the UAPA (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.

However, the Supreme Court asserted that while Section 43D(5) does include restrictions, it “does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III (fundamental rights) of the Constitution”.

It explained that when the proceedings are just beginning, the courts are expected to adhere to the law against grant of bail under UAPA. It, however, added that “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 part of the prescribed sentence”.

The court, therefore, upheld the bail granted to K.A. Najeeb, who had been in jail since April 2015 in the infamous Kerala case in which a professor’s palm was chopped off.

The case dates back to 2010, when Popular Front of India (PFI) activists chopped off the palm of Professor T.J. Joseph for allegedly framing an objectionable question on the Muslim community in an internal examination paper for B.Com students at Newman College, Thodupuzha. Several members of the PFI were tried and sentenced on 30 April 2015, but Najeeb was arrested only 10 April 2015, so his case was tried separately.

The Supreme Court was hearing an appeal challenging a Kerala High Court judgment passed in July 2019, granting bail to Najeeb.

Najeeb ‘paid heavily’ for his acts

According to the Supreme Court judgment, Najeeb approached the special NIA court and the high court for bail as many as six times between 2015 and 2019. He was finally granted bail in 2019, with the high court noting that the trial was yet to begin and that Najeeb had been in custody for a significant period. The NIA, however, challenged this order in the Supreme Court.

The court has now noted that the 13 co-accused convicted in the case were given a maximum of eight years’ imprisonment, and that Najeeb has already spent five years and five months in judicial custody.

“It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two thirds of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice,” it then observed.

The court also asserted that while the allegations were grave, “keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail”.

The case could set a precedent for several UAPA accused, including those who have been in custody since 2018 in the Bhima Koregaon violence case.

The wife of Telugu poet and writer Varavara Rao, arrested in connection with the Bhima Koregaon case, had moved the Supreme Court last year, alleging that his continued custody amounts to cruel and inhuman treatment, violating Article 21 of the Constitution (the right to life and personal liberty). The court had then requested the high court to take up his bail plea expeditiously.

Also read: Judge, who passed controversial POCSO orders, was appointed despite reservation by 2 SC judges

The Zahoor Watali verdict

Challenging the Kerala High Court’s order, the NIA had also relied on the Zahoor Watali judgment, contending that courts are duty bound to refuse bail where the suspect is prima facie believed to be guilty.

The Delhi High Court, while hearing the NIA case against Zahoor Ahmad Shah Watali in 2018, granted him bail under this UAPA provision. In doing so, it noted that while the investigating agency did have plenty of material against Watali, a lot of it was actually not going to be able to be used at the stage of trial.

The Supreme Court, however, in April 2019 called the high court’s approach “inappropriate”. It asserted that at the stage of bail, the court wasn’t required to weigh the evidence against an accused, it was only supposed to look at the material provided by the investigation in its entirety and see if there was a prima facie case. This has made getting bail under UAPA extremely difficult.

In Najeeb’s case, however, the apex court asserted that the Zahoor Watali case dealt with a different factual situation and distinguished the case from the one it was hearing.

It explained that in that case the high court verdict was overturned and bail was cancelled because the high court had conducted a “minitrial” in a bail hearing.

“In that case, the High Court had re­ appreciated the entire evidence on record to overturn the Special Court’s conclusion of their being a prima facie case of conviction and concomitant rejection of bail…This not only was beyond the statutory mandate of a prima facie assessment under Section 43­D(5), but it was premature and possibly would have prejudiced the trial itself,” the court added.

In this case, however, the high court’s reasons were traceable to Article 21 of the Constitution, the apex court pointed out, upholding the high court order.

Also read: 16 names cleared by SC collegium for HC judge posts stuck with govt, 6 of them since 2019


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