The Supreme Court on Monday expressed reservations about the judgment delivered by a two-judge bench in January this year in Gulfisha Fatima v. State ,which denied bail to Umar Khalid and Sharjeel Imam in the Delhi riots larger conspiracy case. The Court contended it did not properly follow the judgment delivered by a three-judge bench in 2021 in Union of India v. KA Najeeb which recognised long delay in trial as a ground for bail in cases under the Unlawful Activities Prevention Act.
SC opined that bail should be the rule and jail the exception even in UAPA cases, and expressed serious reservations about its own earlier judgment delivered by another Bench denying bail to activist Umar Khalid in the Delhi riots case.
The Court also expressed disapproval of the judgment of the two-judge bench delivered in 2024 in Gurwinder Singh v. Union of India for not applying KA Najeeb. A bench comprising Justice BV Nagarathna and Justice Ujjal Bhuyan made these observations while allowing the bail plea of one Syed Iftikhar Andrabi, who has been under custody for over 6 years in a case under the UAPA for allegedly funding terrorism through supply of narcotics.
The judgment pronounced by Justice Bhuyan noted that the 3-judge bench in KA Najeeb had clearly held that prolonged incarceration was a ground for the Constitutional Courts to grant bail under UAPA despite the rigours under Section 43D(5) of the UAPA. However, the judgments delivered by two-judge benches in Gurwinder Singh and Gulfisha Fatima took a somewhat divergent view, Justice Bhuyan noted.
"We have serious reservations about judgment in Gulfisha Fatima. The judgment in Gulfisha Fatima would have us believe that Najeeb (a judgment which says accused cannot be indefinitely jailed) is only a narrow and exceptional departure from Section 43D(5), justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with. The broad reading of Najeeb suggests that the mere passage of time, if it arises from all surrounding circumstances, mechanically entitles an accused to release," the Court today said.
The Court added that bail should be the rule even in cases under the Unlawful Activities (Prevention) Act, 1967 (UAPA), and that the right to speedy trial cannot be defeated merely because an accused has been booked under this stringent anti-terror law.
"The statutory embargo of Section 43D(5) UAPA must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception. Of course, in an appropriate case, bail can be denied having regard to the facts of that particular case," the Court held.We have serious reservations about judgment in Gulfisha Fatima (Umar Khalid bail case). Even under the UAPA, bail is the rule and jail is the exception.
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