The Supreme Court Monday held that a constitutional court can grant bail to an accused facing prosecution under the Unlawful Activities (Prevention) Act, (UAPA) on grounds of violation of fundamental rights notwithstanding the rigors of Section 43D(5) of the UAPA which prohibits the grant of bail if the Court is satisfied that the allegations against the accused are prima facie true.
A three-judge bench led by Justice NV Ramana said the rigors of Section 43D(5) of the UAPA would melt where there is no likelihood of a trial being completed within a reasonable time and the period of incarceration already undergone had exceeded a substantial part of the prescribed sentence.
"Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail", the bench said.
Such an approach, the Court said, would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of the constitutional right to a speedy trial.
The bench which also had Justices Surya Kant and Aniruddha Bose, was ruling on a petition filed by the National Investigation Agency (NIA) seeking the cancellation of bail granted to accused KA Najeeb, accused of chopping off his professor's hand for allegedly insulting Prophet Mohammed in a question paper.
Refusing to cancel bail, the court said not only had the accused been in jail for much more than five years, but there were 276 witnesses left to be examined.
"Charges have been framed only on 27.11.2020. Still, further, two opportunities were given to the appellant NIA who has shown no inclination to screen its endless list of witnesses", the court noted.
It highlighted that of the 13 co-accused who had been convicted, none had been given a sentence of more than eight years' rigorous imprisonment. It can, therefore, be legitimately expected, the court said, 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", the Court added.
It said though the charges levelled against the accused are grave and a serious threat to societal harmony, 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.
It, however, added additional conditions to be observed by the accused while on bail. It asked him to mark his presence every week on Monday at 10 AM at the local police station and inform them in writing that he was not involved in any other new crime. He was also asked to refrain from participating in any activity which might enrage communal sentiments.
Accused KA Najeeb is alleged to be one of the main conspirators who planned to attack Professor TJ Joseph on charges of insulting the Prophet in a question paper for an internal exam at Newman College, Thodupuzha, where he taught Malayalam.
The professor had lost his hand in the attack.
The co-accused were tried and most of them were found guilty by the Special Court, NIA on 30.04.2015 and were awarded cumulative sentence ranging between two and eightyears' rigorous imprisonment.