Case no.: [(2021) 3 SCC 713]
PETITIONER: UNION OF INDIA
RESPONDENT: K.A. NAJEEB
Date of Judgment: 01/02/2021
Bench: Justice N.V. Ramana, Justice Surya Kant, and Justic Aniruddha Bose.
One Professor TJ Joseph while framing a Malayalam question paper for the second semester of B.com exam at the Newman College, Thodupuzha, included a question which was considered objections against some particular religion by certain sections of society.
On 04/07/2010 at about 8AM, Najeeb with a group of people with a common objective, attacked the victim professor Joseph when he was returning home with his mother and sister after attending Sunday mass at a local Church. Over the course of the attack, they forcefully intercepted the victim's car, restrained him and chopped off his right palm with choppers, knives, and small axe. Country made bombs were also hurled at bystanders to create panic and terror in their mind and to prevent them from coming to help of the victim. An FIR was consequently lodged against the attackers by the victim's wife under sec 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(H), 307, 149 of IPC. and sec. 3 of Explosive Substances Act. As per records, over the course of investigation it emerged that the attack was part if large conspiracy and pre-planned.
Najeeb was arrested on 10/04/2015 and chargesheet was re-filed by the National Investigation Agency (NIA) against him.
Between 2015 to 2019, he applied for bail in front of the NIA special Court for 6 times, but each time the bail was rejected on the grounds of section 43D (5) of the act given that he was prima facie accused in the case.
Against this order of the special court, he filed an appeal in the Kerala High Court. The High Court notice the fact tha he has spent the last more than 5 years in judicial custody without a trial and recognized his right to speedy trial and access to justice protected under article 21 of the Constitution. Following Which he was granted bail by the Kerala High Court in 2019 due to delay in trials.
Against this order of the High Court, an appeal was filed in the Supreme Court by the NIA stating that normal criminal laws will not apply on the statutory restrictions provided under the UAPA act i.e., Section 43D (5).
- Whether restriction Section 43D (5) of UAPA applicable on violation of Article 21?
- Whether refusal of bail is mandatory where the suspect is prima facie guilty?
- Whether bail can be challenged without any specific grounds?
Arguments by Appellant:
The Appellant argued that the bail granted to the respondent in the instant case is not apply on the statutory restrictions under Section 43D (5) of the UAPA.
It was highlighted by the counsel that the courts are bound to refuse the bails where the accused is prima facie guilty. it was further contended in the instant case that the fact that the respondent was a fugitive for years makes it more clear for the court to not grant bail.
Lastly respondent to the delay in trial, the counsel in the instance case advanced an argument stating that NIA had filed an additional affidavit to examine 276 witnesses.
Arguments by Respondent:
It was highlighted by the counsel of the respondent, that more of the co-accused have been either acquitted or have been sentence to imprisonment for not more than 8 years. Adding to this point, the respondent had already been imprisoned for more than 5 years without a trial.
Furthermore, counsel for the respondent said, if the High Court in the matter has granted bail to the accused, then the Supreme Court should not interfere unless in a rare circumstance.
Lastly, it was contested that our fundamental right " Right to Liberty and freedom" was violated in the present case by keeping the accused in custody without any trial.
Even though the accused has been declared prima facie guilty by the NIA and there is provision under Section 43D (5) of UAPA to deny bail.
However, the courts can grant bail if the provisions under any law are violating the constitution rights of the accused, and in the present case by the facts put forth, it is crystal clear the hon'ble Supreme Court that the 'right to speedy trial ' has been violated.
Furthermore, Section 43D (5) has no precondition to restrict the accused to commit another crime, and it is just another way to delay the bail. therefore, the Supreme court concluded by upholding the decision of the High court and also found the special leave petition unmaintainable.
1. Anurag Singh, The status of UAPA undertrial in the light of Union of India V. K.A. Najeeb.
2. NIA v. Zahoor (2019) 5 SCC 1
3. State v. Mohd Afzal, (2003) 71 DRJ 178 (DB)
4. Aakar Patel, UAPA (Amendment) Bill 2019 violates the very international laws is quotes, define principles of natural justice.
This article is written by Sunil Kumar Rana of D.S. College.