What is the appropriate timeline for concluding a UAPA trial? At what point do we say it is taking too long? Delhi High Court asks

The Delhi High Court on Wednesday asked some pertinent questions relating to delays in trial of cases under the Unlawful Activities (Prevention) Act (UAPA) while dealing with a bail plea of a man accused in the 2008 Batla House case who has been in jail for 12 years as an undertrial (Mohd Hakim v State)..A Bench of Justices Siddharth Mridul and Anup Jairam Bhambani was hearing an appeal challenging the rejection of bail to one, Mohd Hakim..Senior Advocate Nitya Ramakrishnan, appearing for Hakim, told the Court that he has been in jail for 12 years since his arrest in 2009. The case prompted Justice Bhambani to put across a query as to what should be the timeline of a UAPA trial.."Where do you draw the line? Is two years too early? Is five years too late?" he asked.."I would say 12 years in any case would be excess", Ramakrishnan responded.."There cannot be any ad hocism, there can't be any arbitrariness. So what is the appropriate timeline for concluding a trial under UAPA? At what point do we say it is too late, it is taking too long?", Justice Bhambani observed, in turn..In seeking bail, reliance was placed on the Supreme Court's 2021 ruling in Union of India v. KA Najeeb, where the Court had granted bail to a UAPA accused, noting that he had already undergone five years of imprisonment while waiting for the trial to conclude. .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."When we apply Najeeb, what is too late and what is a little too early?" the Court asked.."No numerical value can be assigned. But in Najeeb's case, five years was too long. And this is nearly three times more," Ramakrishnan argued..During the course of hearing, the Court also discussed the applicability of the Supreme Court's 2019 ruling in NIA v. Zahoor Ahmad Shah Watali, wherein the top court had made pertinent observations on UAPA being a more stringent law and of Section 43D, UAPA being an "additional ground" to deny bail. .Ramakrishnan, however, argued that the rigour of Section 43D would become less and less as more time is taken to complete the trial..Whereas the State counsel today argued that the trial court had been hearing the matter regularly before the pandemic struck, the Court remarked, "This man has been in custody since 2009, what pandemic?".Is Najeeb's case applicable in a case where the offence charged carries is death sentence?.Opposing the grant of bail on behalf of the State, advocate Amit Chadha pointed out that Najeeb's case is completely different from Mohd Hakim's case. .He highlighted that in Najeeb's case, the co-accused were sentenced only with eight years' rigorous imprisonment whereas the accused had undergone five years already. Further, over 270 witnesses were left to be examined when Najeeb's case was taken up by the Supreme Court. All of this had weighed in the Supreme Court's mind while granting bail, he said..On the other hand, he argued that Hakim has been charged with conspiracy, waging war against the State, murder (Section 302, IPC) and the commission of a terrorist act (Section 16, UAPA), which are punishable with death. He added that the trial court had been sitting every Saturday to hear the case, before COVID-19 restrictions came in. ."In the present case, 60 witnesses are left, over 276 witnesses examined, charges were framed, which was not challenged. The punishment is death, which is incomparable with eight years ... The facts of Najeeb and the facts today before the Court are completely, completely different," he argued. .He, therefore, argued that Hakim cannot be granted bail on par with the treatment in Najeeb's case. .This prompted the Court to dwell on whether Hakim can be granted bail relying on Najeeb's judgment, if he is charged of offences punishable with death. The Court also made oral observations on whether the Najeeb is likely to be convicted of offences punishable with death. .Chadha, in turn, referred to the rejection of bail to a UAPA accused in another case in the Ghulam Mohd case in a Delhi High Court judgment authored by Justice Mridul. .Courts in Rajasthan and Hyderabad have awarded the death penalty to four accused persons in bomb blast cases that occurred around the same time as in the present case, he added.."He (Hakim) seems to be accused of 121A (IPC), and 121A Is life. If you charge him with conspiracy, he will defend. Conspiracy is life ... how does he get charged with an offence punishable with death? I am just thinking loud", Justice Bhambani mused, on perusing the case facts. .The Judge went on to comment,"The specific charge against him is of transporting ball bearings. Now therefore he becomes a co-conspirator. On first blush, just reading the charge, he is a conspirator ... At this stage, we have to make a subjective assessment - whether someone who is a cog in the wheel, but his only role is transporting ball bearings. Do you think he should be hanged?".Chadha, however, asserted that there is a lot more to the charges against Hakim."There is much more to that. The conspiracy was hatched to commit what? -It was hatched, carried out for purpose of blast. The substantive charge, apart from 120B is 121, 302… he has not simply acted as a carrier. He knew, he was present at the spot where the bomb blast was carried out," Chadha argued. .He went on to add, "Your Lordships knows how trial progresses. The witnesses are from all over the country. There is one important witness yet to be examined, which will prove that this accused carried cycle bearing balls purchased by another. This is a crucial witnesss.".On Hakim's behalf, Ramakrishnan contended that the Supreme Court has ruled that the sentence of death cannot be given to co-conspirators in such cases, unless the person had actually planted the bomb. .She contended that Section 16 of UAPA cannot be invoked against a person charged with conspiracy. In this regard, she relief on the Parliament attack case (State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru). .The Court, however, noted that this judgment, among others relied on, were not on record. Therefore, it adjourned the case by two weeks so that these cases may be placed before the Court. The matter will be heard next on July 28. .Hakim has been charged for offences under the UAPA as well as under the Indian Penal Code on allegations that he had brought cycle ball bearings from Lucknow to Delhi, which were subsequently used to carry out the bomb blasts in the Batla house case. .Ramakarishnan pointed out that even the trial court, while rejecting bail, has observed that the trial will take some time. While so, Ramakrishnan also contended that there is no substantive evidence against Hakim to connect him with the allegations. .The charges were based on inadmissible statements, that have led to no recoveries, she said. She also argued on there being discrepancies between Call Records Data (CDR) and phone-call transcripts used to implicate Hakim. Coupled with his long incarceration as an undertrial prisoner, she argued that Hakim conviction is unlikely while pressing for bail. .The Court, however, declined to consider Ramakrishnan's arguments on merits, given that it was a bail hearing."We cannot pre-judge the weight of the evidence so far recording in the special court ... So the solitary ground is what Supreme Court said in Najeeb's case", Justice Mridul said..Earlier this year, a Delhi Court had awarded the death penalty to Ariz Khan, who was convicted in the Batla House encounter case, in which a Police inspector was killed.