Delhi riots: Supreme Court refers UAPA bail question to larger bench, grants interim bail to 2 accused

Granting interim bail to Tasleem Ahmed and Khalid Saifi, the court said, "The appellants cannot be made to suffer continued incarceration merely because an important question of law has arisen for authoritative settlement. Without expressing any opinion on merits, and subject to stringent safeguards, we are inclined to grant interim bail to the appellants pending further orders."

"We clarify that the present reference shall not be understood as an expression of final opinion on the merits of the prosecution case or on the guilt or innocence of the appellants. Nor shall the present order be read as affirming or disapproving any factual finding recorded in any earlier bail order. The reference is confined to the legal questions noticed above," said the bench in the order. 

The Supreme Court said, "In this background it would be imperative or in other words necessary for the appropriate bench that may be constituted by the Hon’ble Chief Justice of India, to clarify or expound the position of law laid down in K A Najeeb’s case, particularly in the backdrop of the rigour of 43D (5) which imposes restriction consciously and has received the assent of the Parliament, which obviously was brought in keeping in mind the valuable right enshrined in Article 21 of the Constitution of India."

The bench in its 28-page order said, "The controversy raises a broader question concerning the manner in which constitutional courts are to approach bail where prolonged incarceration is asserted in prosecutions governed by special statutes imposing restrictive bail conditions."

Referring the matter to the larger bench, the Supreme Court bench of Justices Aravind Kumar and Prasanna B Varale said, “The issue requires consideration by Bench to be constituted by the Hon’ble Chief Justice of India. This is necessary not merely for the present batch of matters, but to settle the correct approach to bail under special statutes where Article 21, prolonged incarceration and statutory restrictions intersect.”

The Supreme Court has heard the matter. 

Bench to senior advocate Rebecca John: In all probabilities, you will get relief.

ASG Raju concludes his submissions. 

ASG Raju cites Ajmal Kasab and Hafiz Sayeed.

ASG Raju: Take a case, my lord, where Ajmal Kasab, there are a large number of witnesses. His trial is delayed. Will you grant him bail because he's in jail for seven years, eight years? It can't be done. Therefore, you have to examine the facts of each case. Supposing Hafiz Saeed is brought to Pakistan and tried. He was in jail for five years because there are large number of witnesses. You have to collect evidence from abroad. Will you release him on bail saying no, seven years. Release Hafiz Saeed? This can't be done. This can't be how it is to be applied. It has to be applied to the facts of each case, and that is what my lord has precisely done.

ASG Raju: You can’t just say delay and grant bail. Accused can also delay. 

Bench to ASG Raju: Even in the IPC cases where it is imprisonment is by life or death, and where we come to know that the delay is not attributable to the accused, in such cases, we have granted bail.

ASG Raju: You can’t blanketly say there’s a 2-year delay.

ASG Raju refers to Gulfisha judgement and says everyone can’t claim parity; everyone’s role differs. 

ASG Raju: There can’t be generalisation. Everyone can’t say.

Raju referring judgments: The proper test, yes. So now, when there is a conflicting claim of liberty and society, the proper course is to identify, from the nature of the role played by each accused person, the real hardcore terrorists or criminals from others who do not belong to that category, and apply the male provisions strictly so far as the former class is concerned and liberally in respect of the latter class.

Raju continues reading judgments on reliefs to undertrial prisoners. 

ASG Raju: The plea poses a contradiction claim of individual liberty vs right of the community. A public interest cannot be put before this volume.

ASG Raju: Bail, interim bail,  may be granted. 

Bench urges Pracha to complete submissions. 

Bench: Even if I try my best, I can’t read (pleading). 

Bench expresses displeasure about the font size in the documents: In spite of my best effort, I was unable to read a word. Even magnifying glass is very difficult.

Pracha: He does not even know him properly. He knows, but that other gentleman doesn't know him. So he's introducing himself as that person.

Pracha is now reading the purported chats of Ahmed with Umar Khalid: Main Taslim Syed aap se baat hui thi pehle bhi do baar aur main mila bhi tha aap se please baat kar lijiye.

Pracha: The counsel of the respondent upon instructions issued by the respondent overnight in one day. The respondent has made its best effort to ensure that no error creeps into the present affidavit. Any error which, despite due diligence, may have crept into the present affidavit is solely due to clerical reasons; the respondent prays leave to this court. 

Pracha is now reading the case documents. 

Pracha:Tasleem Ahmed, the resident of Sangam Vihar, was assigned.  He (Tasleem) was assigned to the protest site where he was tasked with coordinating with Pinjaratpur. He acted as a conduit for conveying directions from key conspirators to the protest sites, monitoring the implementation of those directions, and reporting back on significant milestones pertaining to various phases of the conspiracy. This role and his involvement are evident from WhatsApp chats recovered during the course of investigation and repeated during-- for ready reference, as I already said, my Lords.

Justice Aravind: You stand on the same footing as Gulfisha?

Pracha: I am a sidekick. I was trying to expedite the trial

Pracha: They have not pointed out even an iota of evidence that my role is larger or more than.

Bench: You are admitting the principles enunciated in Gulfisha is to be applied.

Pracha: I said that a day before yesterday also.

We'll take- Before today also. Will we take it that way? You are saying your contention is the principles enunciated in Gulfisha, which is where Umar Khalid was also. Yes. That judgment rendered by us would be a prestige to service by you. That judgment you are relying upon, and also the principles enunciated therein you are in agreement with that. Can we take it there?

Pracha: Only for the bail, I will not step a inch outside.

Pracha (appearing for bail applicants): I am actually, as per the prosecution, a sidekick, as I said on the last occasion, also, of Gulfisha, Natasha Narwal, and Teerath Malkani. Now, who or what backed all this up? I am a sidekick of theirs, as per their show, from their records also. Their counter role. That is, in sum and substance, my case, My Lords. In the entire counter, they have not pointed out where my role is, which is, let's more than any of the accused who have been granted by my Lord's in Gulfisha only. Although there is a large number of all other accused with whom I also seek parity, but confining myself to my Lord's judgment in Gulfisha.

Mehmood Pracha: In the beginning itself, let's say that my role was arrested in June 2020. And My Lords, I myself went and joined an investigation on a number of occasions because I was arrested. Second, My Lords, the very crucial piece of evidence, which they say is the WhatsApp chat, which they recovered from my phone. I never tried to, let's manipulate that or delete that. Three, My Lords, my role in terms of my Lord's judgment of Gulfisha is, in my respectful submission, the least.

Justices Aravind Kumar and P B Varale are hearing the matter. 

Justices Aravind Kumar and P B Varale will next look into the bail pleas soon. 

The bench has arrived and will be hearing the matter soon.