NEW DELHI: Joining issue with a coordinate bench that criticised the denial of bail to accused in the Delhi riots conspiracy case, Umar Khalid and Sharjeel Imam, arrested under the harsh Unlawful Activities Prevention Act (UAPA), a bench of justices Aravind Kumar and P B Varale referred the matter to a larger bench to resolve the perceived conflict in the higher judiciary.
A three-judge bench had in the Union of India v KA Najeeb case, held that long incarceration can be a ground to grant bail in cases under the UAPA. Citing this verdict, a bench of Justices Nagarathna and Ujjal Bhuyan had said, “Judicial discipline and certainty demands that Benches of smaller strength are mindful of the decisions rendered by larger Benches and are bound to follow the same.”
In its rebuttal, the Aravind Kumar-led bench observed that Najeeb was not a mathematical command to mechanically grant bail if there was a delay in trial. It pointed out that bail was granted to five accused on January 5 and denied to Khalid and Imam following an individualised assessment of their roles.
The order dictated in the open court said the issue concerns the proper constitutional approach to be adopted, where the prolonged incarceration and delay in conclusion of the trial are pressed as the grounds for bail, notwithstanding the statutory constraint contained in Section 43D(5) of UAPA.
The bench was considering arguments made by Delhi Police in the pleas filed by two other accused Tasleem Ahmed and Khalid Saifi seeking bail. It granted them interim bail for six months.