UAPA| No day-to-day hearing, 298 prosecution witnesses yet to be examined? 74-year-old gets bail after 9.5 years

 Supreme Court: In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi and Abhay S. Oka, JJ has directed that the accused be released on post-­arrest bail by the trial Court.

Asim Bhattacharya was arrested on 6th July, 2012 for offences under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of the Unlawful Activities(Prevention) Act, 1967. The matter was then tranfereed to the National Investigation Agency (NIA).

The Court noticed that though the charges against the accused are “undoubtedly serious”, the same will have to be balanced with certain other factors like the period of incarceration which the appellant has undergone and the likelihood period within which the trial can be expected to be finally concluded.

The Court, hence, considered the following factors,

• the old age of the accused
• the statement of the de-facto complainant has still not been completed,
• there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial.
• The Accused is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.

Section 19 of the National Investigation Agency Act, 2008 mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008. The Court, however, noticed that the ground realities are totally different. In the instant case, after the charge-sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge-sheet on 20th June, 2019. The order sheets indicate that hearing is taking place only one day in a month.

The Court, hence, noticed that,

“looking to the voluminous record and number of the prosecution witnesses which are to be examined, it may take its own time to conclude and indeed the undertrial prisoner cannot be detained for such a long period of incarceration.”

Noticing that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India, the Court said that,

“While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.”

Hence, 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 him on bail.

The Court, hence, directed that the accused be released on post-arrest bail. However, the trial Court will be at liberty to consider and impose appropriate conditions.

[Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156, decided on 01.12.02021]

*Judgment by: Justice Ajay Rastogi