Bail for Undertrials: On Supreme Court’s Judgment in Sheikh Javed Iqbal’s Case

On many occasions, the Supreme Court has held that bail is the rule, and jail is the exception. Regardless, this principle was not applicable in cases that involved a special statute like the Unlawful Prevention Activities Act (UAPA).

On 18 July, a division bench of Justices JB Pardiwala and Ujjal Bhuyan granted bail to one – Sheikh Javed Iqbal – and held that a constitutional court can grant bail despite statutory restrictions if it finds that the right to speedy trial under Article 21 of the Constitution has been infringed.

We have seen many occasions where the state has opposed the bail of undertrials including Umar Khalid and many others, stating that the accused has been charged under UAPA where bail is not a rule, but an exception. Now, with the judgment of the Supreme Court in Sheikh Javed Iqbal (Supra), the situation might change. It was observed that if there is a delay and the undertrial has been languishing in jail, no statutory restrictions would come in the way. 

“A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part”, the court held.

Brief Overview of the Case in Question

The court was dealing with a bail application moved by the appellant, Sheikh Javed Iqbal, who was allegedly apprehended on 22 February 2015, near the Indo-Nepal border with counterfeit Indian currency notes totalling Rs 26,03,500.  Javed was arrested and an FIR was lodged under Sections 121A (conspiracy to wage war), 489B (trafficking in counterfeit currency), and 489C (possession of counterfeit currency) of the IPC. Further investigation led to the inclusion of Section 16 (terrorist act) of the Unlawful Activities (Prevention) Act, 1967 UAPA, and he was charged accordingly. 

Javed’s bail application was rejected by the Trial Court judge in Lucknow around August 2016. He then filed another bail before the High Court at Lucknow which was dismissed vide order dated 03.04.2023. The Allahabad High Court, while denying bail to Javed, cited grave charges against him and said that there was a likelihood of him absconding as he belongs to Nepal.  

Right of the Undertrial vis-a-vis Delay in Trial

The Supreme Court’s emphasis revolved around the delay in the trial of the undertrial in violation of Article 21 of the Indian Constitution. The court held that if the alleged offence is a serious one, the prosecution must ensure that the trial is concluded expeditiously.

“When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused undertrial on the ground that the charges are very serious. Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude”, the court observed. 

In the judgment, the Supreme Court acknowledged the fact that the accused was facing charges under Section 489B of the Indian Penal Code, which talks about counterfeiting of currency and Section 16 of UAPA, which carries a maximum punishment of life imprisonment if convicted. Despite this, it was apparent that the trial is proceeding at a snail’s pace and to date only two witnesses have been examined. Thus, “it is evident that the trial would not be concluded in the near future.” 

Fair-trial and the Jurisprudence of Speedy Justice in UAPA

There are other precedents where the Supreme Court has commented upon the rights of undertrials and speedy justice.  

The court referred to various judgments where the accused was charged under UAPA— the ghost of which has been haunting bail jurisprudence. Section 43D of the Act provides that a person accused of offences under Chapters IV and VI of UAPA cannot be released on bail without allowing the Public Prosecutor to be heard.

In Javed Gulam Nabi Shaikh vs State of Maharashtra, the Supreme Court held that an accused has the right to a speedy trial under the Constitution of India, however serious the crime may be.

That was also a case where fake counterfeit Indian currency notes were seized from the accused appellant. He was inspected by the National Investigating Agency (NIA) under the National Investigating Agency Act, 2008. and was charged under the UAPA, along with Sections 489B and 489C IPC.  

He was in custody as an undertrial prisoner for more than four years. Interestingly, the trial court had not even framed the charges against the accused, and in this context, the court held: “Over a period of time, the trial courts and High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.” In paras 19, 20, and 21 of the judgment, the court held:  

19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

20. We may hasten to add that the petitioner is still an accused; not a convict. The overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.

21. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution. 

A three-judge Bench of the Supreme Court in Union of India vs KA Najeeb, considered an appeal filed by the Union of India through the NIA against an order passed by the High Court of Kerala granting bail to an accused undertrial facing trial for allegedly committing offences, amongst others, under Sections 16, 18, 18B, 19 and 20 of the UAPA.  

In KA Najeeb (Supra), while referring to the decision of this Court in NIA vs Zahoor Ahmad Shah Watali, this court opined that the High Court had virtually conducted a mini-trial and determined the admissibility of certain evidence which exceeded the limited scope of a bail proceeding. Not only was it beyond the statutory mandate of prima-facie assessment under Section 43D (5) of the UAPA, it was premature and could have prejudiced the trial as well. Under these circumstances, this court in Zahoor Ahmad Shah Watali (supra) had to intervene leading to the cancellation of the bail granted. 

It is important to note that the judgment of KA Najeeb was passed by a three-judge bench and in this context, the Supreme Court in this case i.e. Sheikh Javed (Supra) observed that: 

“Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, KA Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us.” 

In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs Union of India, the SC issued a slew of directions relating to undertrials in jail facing charges under the Narcotic Drugs and Psychotropic Substances Act, 1985, for a period exceeding two years, on account of the delay in disposal of the cases lodged against them. When undertrials are foreigners, this court directed that the Special Judge should impound their passports besides insisting on a certificate of assurance from the concerned Embassy/High Commission of the country to which the foreigner accused belonged and that such accused should not leave the country and should appear before the special court as required. 

Further, in the case of Angela Harish Sontakke vs State of Maharashtra, the Supreme Court was dealing with a case where the accused appellant was charged under various provisions of the UAPA as well as the IPC. He sought bail. This court observed that, undoubtedly, the charges were serious, but would have to be balanced with certain other facts like the period of custody suffered and the likely period within which the trial could be expected to be completed. The appellant-accused had been in custody since April 2011, for over five years, with the trial yet to commence. A large number of witnesses were proposed to be examined. Hence, the appellant accused was directed to be released on bail.   

What’s Ahead for Undertrials?  

In India, we have seen many occasions where undertrials languish in jail for years and the trial proceeds slowly. At present, there are numerous cases, like the one of Umar Khalid who has spent years in prison without even a sight of the trial. We also had people like Father Stan Swamy who died in prison, as a political prisoner.

Hence, in light of the present situation, this judgment stands as a shield but does not cover all aspects. As Advocate Abhinav Sekhri rightly argues in one of his blogs, what Sheikh Javed Iqbal does is to restore the primacy of the curious constitutionalism that the Supreme Court has consistently displayed an adherence to when it comes to bail especially in UAPA cases besides some other categories as well, where Article 21 somehow shines much brighter once a person has suffered lengthy incarceration.  

“After giving the state enough time to try and run its case with the accused behind bars, a court — not a trial court mind you — turns around and now tells us that enough is enough and the person must be freed because now the Constitution would be sullied by continuing his custody.” Sekhri adds.  

In the judicial sphere, speedy justice and constitutionalism should be the core principles in deciding the fate of these undertrials. The Indian Constitution guarantees the basic rights to every person, including a foreigner. Let us hope that the judgment of the Supreme Court in Sheikh Javed’s case gives a ray of hope to many more, especially the trial and the High Courts which are majorly vested with such cases, where the undertrials are held behind prison for ages without the trial proceeding any further.