The Supreme Court on Friday indicated it was likely to grant interim bail to two men accused in the 2020 Delhi riots conspiracy case, while also agreeing to examine whether conflicting rulings on bail under India’s anti-terror law required consideration by a larger bench.
During the hearing, Delhi Police argued that prolonged incarceration or delays in trial could not automatically justify bail under the Unlawful Activities (Prevention) Act (UAPA), and asked whether figures such as 26/11 Mumbai terror attack convict Ajmal Kasab or Pakistan-based Lashkar-e-Taiba terrrorist Hafiz Saeed could also claim relief on similar grounds.
A bench of Justices Aravind Kumar and PB Varale said it would consider the police plea seeking a reference on whether delays in trial can override the stringent bail restrictions under the UAPA.
The top court, which reserved its verdict on the bail pleas told senior advocate Rebecca John, appearing for Abdul Khalid Saifi and advocate Mehmood Pracha for Tasleem Ahmad that most probably they will get the relief and the court will give the order during the day or on May 25.
"Most probably we will consider granting relief. However, we will look into the arguments made on behalf of Delhi Police for reference of the question of law to the larger bench," the bench observed.
Additional Solicitor General SV Raju, appearing for Delhi Police told the bench that trial in Kasab case, was delayed by seven years as there were a large number of witnesses. "Does this mean, the court grants bail to Kasab. We have to look into the role of the accused in the UAPA case," Raju said.
"If Hafiz Saeed is brought to India, the case will have a large number of witnesses and if the trial gets delayed, would the court grant him bail. It all depends on facts of each case. There cannot be blanket formula," he added.
During the arguments, Raju submitted that denial of bail to hardcore criminals under UAPA has been upheld by this court in a number of judgements. He said generalisation of accused cannot be made in offences under the UAPA as there may be some hardcore criminals and some may be their associates, so the role ascribed to the each accused, needs consideration.
Raju said the ratio of law laid in the January 5 verdict in Gulfisha Fatima case, which denied bail to activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case, was correctly applied as their role was different from other accused, who were granted bail.
The ASG said Saifi and Ahmed can be granted bail as they don't fall in the category of main accused.
Raju said the recent verdict by another apex court bench in case of Syed Iftikhar Andrabi related to narco-terror, which criticised the January 5 verdict has not done categorisation and says that on ground of delay of trial, UAPA accused can be granted bail.
Justice Kumar said in other cases where punishment is imprisonment for life or death sentence and when delay in trial is not attributable to the accused, the court has granted bail.
Raju said the court cannot say that since there has been a delay in trial for two years, all the accused in the UAPA case will be granted bail. He added that the blanket ban on bail under UAPA to certain categories of hardcore criminals has been upheld by this court and the ratio of law in the January 5 verdict was correctly applied.
While referring to a judgment delivered on Monday by a bench headed by Justice B V Nagarathna which emphatically held that "bail is the rule and jail is an exception" even in prosecutions under the UAPA, Raju submitted that the ruling may not have laid down the correct position in law.
On May 18, underlining that "bail is the rule and jail is the exception" is not merely an empty statutory slogan, the top court questioned its January 5 judgment denying bail to activists Umar Khalid and Sharjeel Imam.
The top court had made the observation while granting bail to Handwara resident Syed Iftikhar Andrabi in a narco-terror case probed by the NIA.
The court had said it has "serious reservations" on the reasoning adopted by a different bench of the top court.
On January 5, a two-judge bench comprising Justices Aravind Kumar and N V Anjaria refused bail to Khalid and Imam, and said they can file fresh bail applications following the examination of protected witnesses after one year.
In its order pronounced on May 18, Justice Bhuyan criticised various aspects of the January 5 judgment, including foreclosing the right of the two appellants to seek bail for a period of one year.
He said the January 5 judgment did not properly follow the verdict in the K A Najeeb case, which recognised long delay in trial as a ground for bail in cases under the UAPA and can override the statutory restrictions on bail under Section 43D(5) of the Act.
The apex court had said that the often invoked phrase "bail is the rule and jail is the exception" is not an empty statutory slogan flowing from the Criminal Procedure Code (CrPC).
The apex court made it clear that its judgment in the Najeeb case is a binding law that cannot be diluted, circumvented or disregarded by trial courts, high courts or even by benches of a lower strength of the top court.
The Najeeb case is a landmark Supreme Court ruling delivered in 2021 regarding bail under the UAPA.
