Ashim @ Asim Kumar Haranath … vs National Investigation Agency … on 1 December, 2021

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Supreme Court of India
Ashim @ Asim Kumar Haranath … vs National Investigation Agency … on 1 December, 2021Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1525 OF 2021
(Arising out of SLP(Criminal) No(s). 6858 of 2021)

ASHIM @ ASIM KUMAR HARANATH
BHATTACHARYA @ ASIM HARINATH
BHATTACHARYA @ ASEEM KUMAR
BHATTACHARYA …..APPELLANT(S)

VERSUS

NATIONAL INVESTIGATION AGENCY ….RESPONDENT(S)

JUDGMENT
Rastogi, J.

1. Leave granted.

2. We have heard learned counsel for the parties.
Signature Not Verified

Digitally signed by
Charanjeet kaur
Date: 2021.12.01

3.
14:59:07 IST
Reason: The instant appeal has been filed on behalf of accused no.

6(Ashim @ Asim Kumar Haranath Bhattacharya) out of the total
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number of 14 accused persons seeking post arrest bail which came

to be rejected by the learned trial Court by Order dated 25 th

February, 2020 and also by the High Court by Order dated 15 th

March, 2021.

4. The FIR No. 138/2012 dated 1 st March, 2012 was initially

lodged under Sections 120B, 121, 121A, 122 of the IPC, Section

25(1A) of the Arms Act, 1959 and Section 5 of the Explosive

Substances Act, 1908 against five accused persons by a de­facto

complainant who is an Inspector, Special Task Force. Later, the

National Investigation Agency took over the investigation. The said

case was re­registered as RC No. 01/2012/NIA/DLI at PS NIA

Headquarters, New Delhi for offences under Sections 120B, 121,

121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of

the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c)

of the Unlawful Activities(Prevention) Act, 1967(hereinafter being

referred to as “UAP Act”) on 12th April, 2012.

5. After investigation, the charge sheet was initially filed against

A­1 to A­5 on 23rd August, 2012 and thereafter the first

supplementary charge sheet was filed on 27 th December, 2012

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against A­6 to A­9 in which the appellant was named as A­6 and

the second supplementary charge sheet was filed on 3 rd July, 2017

against another 5 accused persons. The said accused persons are

presently absconding. The charges later came to be framed on 20 th

June, 2019 for offences under Sections 121, 121A, 122, 120B IPC

and under Sections 25(1)(a), 25(1A), 25(1­AA) of Arms Act, 1959

and under Sections 18 and 20 of the UAP Act. At this stage, PW 1

who is the de­facto complainant, his cross­examination has been

going on for quite a long time and still it has not been completed.

6. The appellant was arrested on 6th July, 2012 on the basis of a

production warrant sent to Nagpur Central Jail, Maharashtra. The

appellant was in jail earlier in connection with another case(FIR No.

28/2007 dated 11th May, 2007)in which he was acquitted by the

competent Court of jurisdiction by a judgment dated 15 th February,

2014.

7. It has come on record that there are 298 prosecution

witnesses in the calendar of witnesses as referred to in the charge

sheet but it has been stated in the counter affidavit filed by the

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respondent that the prosecution in all likelihood may examine only

100 to 105 prosecution witnesses.

8. The charges against the accused appellant are undoubtedly

serious but the charges will have to be balanced with certain other

factors like the period of incarceration which the appellant has

undergone and the likelihood period within which the trial can be

expected to be finally concluded. That apart, the appellant is 74

years of age.

9. Learned counsel for the respondent vehemently opposed the

appeal filed by the accused appellant seeking post arrest bail and

submits that the delay is in no manner be attributable to the

prosecution and this Court may direct the trial Court to take up the

case on day­to­day basis and conclude the trial at the earliest.

10. That the requirement of law as being envisaged under Section

19 of the National Investigation Agency Act, 2008(hereinafter being

referred to as “Act 2008”) mandates that the trial under the Act of

any offence by a Special Court shall be held on day­to­day basis on

all working days and have precedence over the trial of any other

case and Special Courts are to be designated for such an offence by
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the Central Government in consultation with the Chief Justice of

the High Court as contemplated under Section 11 of the Act 2008

but the ground realities are totally different as in the instant case,

after the charge­sheets came to be filed way back in 2012, the

charges have been framed after 7 years of filing of the charge­sheet

on 20th June, 2019.

11. We have to balance the nature of crime in reference to which

the appellant is facing a trial. At the same time, the period of

incarceration which has been suffered and the likely period within

which the trial can be expected to be completed, as is informed to

this Court that the statement of PW­1/de­facto complainant has

still not been completed and there are 298 prosecution witnesses in

the calendar of witness although the respondent has stated in its

counter affidavit that it may examine only 100 to 105 witnesses but

indeed may take its own time to conclude the trial. This fact

certainly cannot be ignored that the appellant is in custody since 6 th

July, 2012 and has completed nine and half years of incarceration

as an undertrial prisoner.

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12. This Court has consistently observed in its numerous

judgments that the liberty guaranteed in Part III of the Constitution

would cover within its protective ambit not only due procedure and

fairness but also access to justice and a speedy trial is imperative

and the undertrials cannot indefinitely be detained pending trial.

Once it is obvious that a timely trial would not be possible and the

accused has suffered incarceration for a significant period of time,

the Courts would ordinarily be obligated to enlarge him on bail.

13. Deprivation of personal liberty without ensuring speedy trial is

not consistent with Article 21 of the Constitution of India. While

deprivation of personal liberty for some period may not be

avoidable, period of deprivation pending trial/appeal cannot be

unduly long. At the same time, timely delivery of justice is part of

human rights and denial of speedy justice is a threat to public

confidence in the administration of justice.

14. The three­Judge Bench of this Court in Union of India Vs.

K.A. Najeeb 2021(3) SCC 713 had an occasion to consider the long

incarceration and at the same time the effect of Section 43­D(5) of

the UAP Act and observed as under:­
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 17. It is thus clear to us that the presence of statutory restrictions
like Section 43­D(5) of the UAPA per se does not oust the ability of
the constitutional courts to grant bail on grounds of violation of
Part III of the Constitution. Indeed, both the restrictions under a
statute as well as the powers exercisable under constitutional
jurisdiction can be well harmonised. Whereas at commencement of
proceedings, the courts are expected to appreciate the legislative
policy against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being completed
within a reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against the
possibility of provisions like Section 43­D(5) of the UAPA being
used as the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.

15. In the above circumstances, we are of the view that the

appellant accused has made out a case for grant of post­arrest bail

pending trial.

16. Before parting with the order, we would like to observe that

under the scheme of the Act 2008, the power is vested with the

Central Government in consultation with the Chief Justice of the

High Court, for the trial of scheduled offences, designate one or

more Courts of Session as Special Courts, by notification in the

Official Gazette, with the place of jurisdiction of special Courts and

its jurisdictional power has been defined under Sections 13 and 14

of the Act 2008. At the same time, it has been mandated under

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Section 19 of the Act 2008 that the trial under the Act of any

offence by a Special Court shall be held on day­to­day basis on all

working days and shall be concluded in preference to the trial of

such other case and accordingly the trial of such other case shall, if

necessary, remain in abeyance. The power of State Government to

designate one or more Courts as Special Courts for the trial of

offences under any or all the enactments specified in the Schedule

is provided under Section 22 of the Act, 2008.

17. It has been informed to this Court that only one such Special

Court has been designated by the State of West Bengal to try such

cases under the Act 2008. Before us, the order sheets have been

placed for perusal of the instant case and it indicates that hearing

is taking place only one day in a month and if this procedure is

being followed in conducting the trial under Act 2008, it frustrates

the very purpose with which the special Courts are designated.

18. It is clearly demonstrated from the instant case that after the

charge­sheet came to be filed in the year 2012, charges have been

framed in June 2019 and looking to the voluminous record and

number of the prosecution witnesses which are to be examined, it

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may take its own time to conclude and indeed the undertrial

prisoner cannot be detained for such a long period of incarceration

noticed by us in the instant case. The correspondence which has

taken place between the Central Government and the State of West

Bengal from time to time is placed for our perusal but nothing

elicits from the record.

19. In the given circumstances, we consider it appropriate to

direct that the State of West Bengal shall take up the issue and

designate more dedicated courts of Sessions as Special Courts for

the trial of offences specified in the schedule appended to the Act

2008. At the same time, the Central Government may also, in

consultation with the Chief Justice of the High Court, Calcutta may

exercise its power and take up the issue at the earliest so that such

trials which are pending under the Act 2008 may go ahead speedily

and the mandate, as intended by the legislature in its wisdom,

reflected from Section 19 of the Act, is being complied with in its

letter and spirit.

20. We accordingly direct that the accused appellant be produced

before the trial Court within three days and shall be released on

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post­arrest bail by the learned trial Court. We also make it clear

that the learned trial Court will be at liberty to consider and impose

appropriate conditions subject to which the appellant accused will

be released on bail so as to ensure that the appellant accused is

available for trial in terms of the present order.

21. Consequently, in light of the above, the appeal is allowed and

the judgment and order of the High Court is set aside.

22. Pending application(s), if any, stand disposed of.

23. Copy of this order be sent to Chief Secretary, State of West

Bengal and Registrar of the High Court of Calcutta for necessary

compliance.

……………………………..J.
(AJAY RASTOGI)

…………………………….J.
(ABHAY S. OKA)
NEW DELHI
DECEMBER 01, 2021

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