The Supreme Court has provided a timely reminder, as much to itself as to subordinate judiciary and the general public, that presumption of innocence and the right to a speedy trial cannot be counterfeited by ‘national security’.
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IN a significant ruling, the Supreme Court has held that irrespective of the nature of the crime, an accused is entitled to a speedy trial.
The court has also remarked that “if the prosecuting agency and the court concerned have no wherewithal to protect the fundamental right to a speedy trial, then they should not oppose the bail petitions on the ground that the crime committed is serious.”
A Bench of Justices J.B. Pardiwala and Ujjal Bhuyan passed a ruling to this effect while ordering to release of one Javed Gulam Nabi Shaikh who has been languishing in jail as an undertrial for the last four years for crimes under Sections 489B (using counterfeit currency notes as genuine), 489C (possession of counterfeit currency notes), 120B (criminal conspiracy) and 34 of the Indian Penal Code, 1860 (IPC), read with Sections 15(1)(a)(iiia) (damage to monetary stability of India by the circulation of high-quality counterfeit currency), 16 (punishment for a terrorist act) and 18 (punishment for conspiracy) of the Unlawful Activities (Prevention) Act (UAPA) 1967.
The Bench noted with dismay that over a period, trial courts and high courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment.
The Bench noted with dismay that over a period, trial courts and high courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment.
When the bail petition was taken up for hearing by the Bench on July 3, the lawyer for the National Investigation Agency (NIA) and Maharashtra government sought an adjournment, but the Bench flatly refused to grant any adjournment noting that Shaikh has been in custody for four years.
Allegations against Shaikh
It is claimed that upon receiving secret information, the Mumbai police apprehended Shaikh at the bus stop near the arrival of Terminal II, Chhatrapati Shivaji Maharaj International Airport, Andheri, Mumbai on February 9, 2020.
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It is further claimed that during the search of the bag Shaikh was carrying, 1,193 notes of ₹2,000 denomination were recovered.
A case was registered against Shaikh at the Sahar Police Station under Sections 489B, 489C, and 120B read with 34 of the IPC.
The Mumbai police claim that further investigation revealed that the consignment of the fake notes had been smuggled from Pakistan to Mumbai.
Having regard to the grave nature of the offence, the NIA took over the investigation.
The NIA claims that during the investigation it found that on February 6, 2020, Shaikh had received the fake currency from one Sardar while he was on a trip to Dubai. Subsequently, Shaikh returned to India on February 9, 2020.
The NIA also claims that the mobile phone of Shaikh, through which he had been in touch with the other accused, was recovered at his instance.
The NIA also claims that its investigation had revealed that upon reaching India, Shaikh was to hand over the fake currency to two persons named Guptaji (co-accused) and Jayram, to be circulated in India to disrupt the nation’s monetary system and financial stability.
On completion of the investigation by the NIA, charges under the UAPA were also added against Shaikh.
Thereafter, the other co-accused Kishorkumar Agarwal @ Guptaji and Akbar Hussain @ Raju Batla were also arrested and supplementary chargesheets were filed against them.
On February 5, 2024, a division Bench of the Bombay High Court comprising Justice A.S. Gadkari and Justice Shyam C. Chandak rejected the bail petition filed by Shaikh.
Shaikh’s first bail application was rejected by the trial court. He appealed against the said Order before the Bombay High Court but chose to withdraw it later.
After some time, he unsuccessfully filed a second bail application before the trial court. The Order was challenged before the Bombay High Court.
High court’s ruling
On February 5, 2024, a division Bench of the Bombay High Court comprising Justice A.S. Gadkari and Justice Shyam C. Chandak rejected the bail petition filed by Shaikh.
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Relying on the material collected during the investigation, the Bombay High Court observed that Shaikh had deliberately collected the fake currency from Dubai with an oblique intent: to push the same in monetary transactions in India to damage the nation’s economy.
This, in the view of the high court, showed a prima facie case of a serious nature against Shaikh.
Before the high court, Shaikh cited the decision of the Supreme Court in Union of India versus K.A. Najeeb, wherein it was held that a constitutional court could grant bail to an accused facing prosecution under the UAPA on grounds of violation of fundamental rights notwithstanding the rigours 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.
In Najeeb, the court had stated that the rigours 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.
The Bombay High Court sought to create a distinction between Shaikh’s case and Najeeb’s case, saying that in the latter, many co-accused were acquitted and none of the convicted co-accused had been awarded sentences of not more than eight years.
Since Najeeb had already been in jail for five-and-a-half years without the trial having even started, and a large number of witnesses had to be examined in the case, which was likely to delay the trial further, the Supreme Court had in its wisdom deemed it fit to release Najeeb on bail.
In contrast, the Bombay High Court pointed out, the alleged offence under Section 489B of the IPC is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
The Bench also observed that criminals are not born but made and that human potential in everyone is good and no criminal should be written off as beyond redemption.
The alleged offence under Section 15(1)(a)(ii)(a), read with Section 16 (b) of the UAPA is punishable with imprisonment for a term that shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
Therefore, the court held that the submission that Shaikh has undergone half of the maximum sentence he might get if found guilty was incorrect.
Dismissing the bail petition, the Bombay High Court noted that there was a prima facie case against Shaikh for having committed the alleged offence which was serious in nature and against the economy of the nation.
Also read: Why Mahesh Raut needed an interim bail on top of regular bail to attend his grandmother’s funeral
This Order became the subject matter of the challenge before the Supreme Court.
Shaikh’s right to speedy trial violated
Disapproving the approach of the high court and also the NIA, the Supreme Court Bench observed that it was convinced that the manner in which the prosecuting agency as well as the court had proceeded, the right of the accused to have a speedy trial was infringed upon, in violation of Article 21 of the Constitution of India.
The Bench took into consideration three factors while releasing Shaikh on bail. They are:
- The appellant has been in jail as an undertrial prisoner for four years.
- To date, the trial court has not been able to even proceed to frame charges.
- The prosecution intends to examine not less than eighty witnesses.
The Bench noted, “Article 21 of the Constitution applies irrespective of the nature of the crime. We may hasten to add that the petitioner is still an accused; not a convict. The overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be,” the Bench ruled.
The Bench also observed that criminals are not born but made and that human potential in everyone is good and no criminal should be written off as beyond redemption.
Will the ruling have a ripple effect?
The Bench’s ruling in Shaikh’s case has cemented the ruling of the Supreme Court in Najeeb, which was the first breakthrough in UAPA cases.
However, the judiciary had vacillated on the issue, resulting in confused jurisprudence. In some cases, courts give precedence to ‘national security’ and justify a suspension of due process for that reason, citing the ‘gravity of the situation’ and the ‘seriousness of the crime’, while in other cases, courts reiterate the preeminence of fundamental rights, particularly those guaranteed under Articles 20–22 of the Indian Constitution.
Also read: Bail continues to evade Umar Khalid’s name
It will be interesting to see whether the ruling positively affects the thousands of undertrials under the UAPA awaiting justice and freedom.
The Bench’s ruling in Shaikh’s case has cemented the ruling of the Supreme Court in Najeeb, which was the first breakthrough in UAPA cases.
As per information shared by the government in the Parliament in July 2022, 3,047 people have been undertrial prisoners since 2016, 4,098 since 2017, 4,862 since 2018, 5,645 since 2019 and 6,482 since 2020.
As per the data released by the The National Crime Records Bureau (NCRB) up to 2021, in the year 2019, a total of 2,244 cases under the UAPA were pending trial.
Of them, 224 cases had been pending for between three and six months, 276 cases had been pending trial for between six months and a year; 1,117 cases had been pending trial between one and three years; and 338 between three and five years.
Notably, 29 had been pending trial for between five and ten years. Even more shockingly, 22 cases had been pending trial for more than 10 years.
It will also be interesting to see if the ruling will be applied to certain ‘litmus test’ cases such as Bhima Koregaon and the 2020 Delhi riots.
Bhima Koregaon
As many as seven of the 15 living accused have been languishing in jail for several years.
Human rights activist Sudhir Dhawale; activist and researcher Rona Wilson; human rights lawyer and Dalit rights activist Surendra Gadling; former professor Hany Babu; activist Mahesh Raut; human rights activist Sagar Tatyaram Gorkhe; activist and member of cultural organisation Kabir Kala Manch Ramesh Murlidhar Gaichor have all been languishing in jail for six years while activist Jyoti Jagtap has remained incarcerated for three years.
Jagtap’s petition seeking bail is likely to be heard by the Supreme Court later this month. Jagpat has been in jail for the last three years.
The sixteenth accused, Father Stan Swamy, died in judicial custody due to Covid in June 2021 after incarceration of over seven months.
Recently, the Supreme Court granted interim bail of two weeks to Raut to attend rituals in connection with the death of his grandmother. Raut continues to languish in jail despite a September 21, 2023 Bombay High Court Order granting him bail on merit.
At that time, the high court had granted a stay of the Order for one week to enable the NIA to appeal against the bail Order in the Supreme Court.
Subsequently, on September 27, a division Bench of the Supreme Court comprising Justices Aniruddha Bose and Justice Bela M. Trivedi decided to hear the matter on the next date and extended the stay on the high court’s Order without hearing arguments in opposition to the stay.
Since then, the Supreme Court has continued to stay the bail Order of Raut, delaying his release. At present, the matter is pending before a Bench comprising Justice Trivedi and Justice Pankaj Mithal.
It will also be interesting to see if the ruling will be applied to certain ‘litmus test’ cases such as Bhima Koregaon and the 2020 Delhi riots.
Earlier this year, another co-accused, Hany Babu withdrew his petition from the Supreme Court seeking bail. On January 3 this year, a Bench comprising Justice Bose and Justice Sanjay Karol had issued notice on the petition filed by Babu.
After the retirement of Justice Bose, the matter was listed before a Bench comprising Justice Trivedi and Justice Pankaj Mithal on May 3 when the counsel for Babu submitted that there was a change of circumstances and the petitioner would approach the high court for appropriate remedy.
In the Bhima Koregaon, the charges against accused persons are yet to be framed even after six years of the registration of the case. Even if the trial starts, with 336 witnesses sought to be examined by the NIA it will take many years to complete.
Delhi riots
Former Jawaharlal Nehru University (JNU) scholar Umar Khalid who was arrested in a larger conspiracy case pertaining to North East Delhi riots 2020 is languishing in jail under the UAPA since September 2020.
The sixteenth accused, Father Stan Swamy, died in judicial custody due to Covid in June 2021 after incarceration of over seven months.
In February 2024, Khalid chose to withdraw his petition from a Bench comprising Justice Trivedi and Justice Mithal, with the liberty to move the trial court afresh for seeking bail. In May 2024, Khalid was again denied bail by the trial court.
Khalid has already undergone incarceration for close to four years as an undertrial.
On January 1, 2023, a Delhi High Court Bench comprising Justice Siddharth Mridul and Justice Rajnish Bhatnagar reserved the Order on bail petitions filed by activists Gulfisha Fatima, Meeran Haider, Abdul Khalid Saifi, Sharjeel Imam and several others accused in the Delhi riots conspiracy case.
However, the Bench did not deliver the judgment even ten months after reserving the Order. Justice Mridul was appointed as chief justice of the Manipur High Court on October 20, 2023. After his transfer, the petitions were assigned to a Bench headed by Justice Suresh Kait to hear them afresh.
In Anil Rai versus State of Bihar concerning the delay in pronouncing the judgments, the Supreme Court had held that the delay in delivering the judgment amounted to a violation of Article 21 of the Constitution.
The Supreme Court had also issued some guidelines regarding the pronouncement of judgments. It had held that normally a judgment is expected within two months of the conclusion of the arguments, and on expiry of three months, any of the parties can file an application in the high court with prayer for early judgment.
If for any reason no judgment is pronounced for six months, any of the parties is entitled to move an application before the then chief justice of the high court with a prayer to re-assign the case before another Bench for fresh arguments.
Former Jawaharlal Nehru University (JNU) scholar Umar Khalid who was arrested in a larger conspiracy case pertaining to North East Delhi riots 2020 is languishing in jail under the UAPA since September 2020.
The newly constituted Bench headed by Justice Kait recently concluded the argument on the petition filed by United Against Hate (UHA) member Khalid Saifi and student activist Gulfisha Fatima. The arguments on the bail petition filed by Imam are still on.
Whether the Delhi High Court will apply the ratio of the Shaikh case in these cases will be a story for another day.
Click here to read the Order.
