Supreme Court of India
Ashim @ Asim Kumar Haranath … vs National Investigation Agency … on 1 December, 2021Author: Ajay Rastogi
Bench: Ajay Rastogi, Abhay S. Oka
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
NATIONAL INVESTIGATION AGENCY ….RESPONDENT(S)
1. Leave granted.
2. We have heard learned counsel for the parties.
Signature Not Verified
Digitally signed by
Reason: The instant appeal has been filed on behalf of accused no.
6(Ashim @ Asim Kumar Haranath Bhattacharya) out of the total
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
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
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,
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
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
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.
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:
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
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
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
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
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
(ABHAY S. OKA)
DECEMBER 01, 2021