Accused in jail as undertrial for five years, 276 witness yet to be examined: Supreme Court upholds bail to UAPA accused in palm chopping case

Liberty under Article 21 of the Constitution includes within its ambit access to justice and right to speedy trial, the Supreme Court underscored on Monday upholding the bail granted to an accused who had spent more than 5 years in jail as undertrial in a case under the Unlawful Activities Prevention Act (UAPA) [Union of India v. KA Najeeb]. .The Court noted that the facts of the case were egregious in that the accused had already spent more than 5 years as an undertrial and more than 276 witnesses are yet to be examined.."Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on November 27, 2020,” the Court observed. .Further, the National Investigating Agency has shown no shown no inclination to screen its endless list of witnesses, the Bench headed by Justice NV Ramana added..The Bench which also comprised Justices Surya Kant and Aniruddha Bose was hearing an appeal filed by the Central government against a July 2019 order of Kerala High Court releasing accused KA Najeeb (respondent) on bail in the infamous 2010 palm chopping case in which few members of Popular Front of India (PFI) had chopped off the palm of a college professor. .The Supreme Court while accepting the bar under Section 43D(5) of UAPA against grant of bail, made it clear that the provision does not oust the jurisdiction of Constitutional courts to grant bail on grounds of violation of fundamental rights. ."Indeed, both the restrictions under a statue as well as the powers exercisable under Constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, 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," the Court said..The Court also noted that of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years’ rigorous imprisonment."It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two-thirds of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice," the Court reasoned as it upheld the bail granted to Najeeb..Najeeb is accused of offences under IPC, Explosive Substances Act, 1908 and UAPA in the infamous 2010 palm chopping case..The prosecution case in brief is that one Professor TJ Joseph while framing the Malayalam question paper for the second semester B.Com examination at the Newman College, Thodupuzha, had included a question which was considered objectionable against a particular religion by certain sections of society.The respondent along with other members of PFI, decided to avenge this purported act of blasphemy.They waylaid professor Joseph when he was returning home after attending the Sunday mass at a local church and chopped off his right palm with choppers, knives, and a small axe. Country made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the victim..The respondent could not be traced but the co-accused were tried and most of them were found guilty by the Special Court, NIA in 2015.Najeeb was eventually arrested in 2015 a chargesheet was refiled by the NIA against him, pursuant to which the respondent is now facing trial.The respondent approached the Special Court and the High Court for bail as many as six times between 2015 and 2019, but the same was rejected.Eventually the High Court granted him bail in July 2019 in view of the delay in trial..On appeal, the Supreme Court placed reliance on a plethora of judgments to reaffirm that right to speedy trial is intrinsic to liberty under Article 21.“In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter,” the Court said.Regarding the bar under Section 43D(5) of UAPA, the Court said that it does not bar jurisdiction of Constitutional courts when it comes to enforcement of Part III rights.It also noted that unlike Section 37 of the Narcotic Drugs and Psychotropic Substances Act where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail, there is no such pre-condition under the UAPA..Hence, it declined to interfere with the order of the Kerala High Court.“It would serve the best interest of justice and the societyatlarge to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10AM at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments,” the Court directed..[Read Judgment]