SC justifies denial of bail to Umar Khalid, Sharjeel Imam; grants interim bail to two accused

The Supreme Court granted interim bail to two Delhi riots accused, Abdul Khalid Saifi and Tasleem Ahmad, while upholding the denial of bail to Umar Khalid and Sharjeel Imam.

The Supreme Court on Friday granted interim bail to two Delhi riots accused Abdul Khalid Saifi and Tasleem Ahmad while justifying denial of bail to activists Umar Khalid and Sharjeel Imam earlier this year, saying it was done not because Article 21 was considered subordinate but considering their role and accused-based evaluation.

A bench of Justice Aravind Kumar and PV Varale granted interim bail of six months to Saifi and Ahmad, and imposed certain conditions on them including that they will not speak to media or make social media posts about the case.

The bench headed by Justice Kumar, whose January 5 judgment denying bail to Khalid and Imam in the 2020 Delhi riots larger conspiracy case came under severe criticism by another bench earlier this week, said that the question of law on whether prolonged incarceration and delay in trial can override the statutory restrictions on bail needs an authoritative pronouncement and referred the issue to a larger bench.

It said there was a ''perceived conflict'' among different benches regarding the understanding of the three-judge bench judgment in the KA Najeeb case, which held that long incarceration can be a ground to grant bail in cases under the Unlawful Activities Prevention Act (UAPA), regardless of the statutory rigours.

The bench said it does not want to comment on the observation made by another bench in its verdict on May 18 in another case due to judicial propriety and directed that the files of the case be placed before the Chief Justice of India Surya Kant for the constitution of an appropriate bench.

''It is necessary that an appropriate bench be constituted by the CJI to clarify the law in the KA Najeeb case, particularly the application of 43D(5) of UAPA,'' the bench said.

The order, which is yet to be uploaded, was dictated in the open court by the bench and said that the issue as projected before the court is not a narrow one concerning the prayer of bail of petitioners alone because it concerns the proper constitutional approach to be adopted, where the prolonged incarceration and delay in conclusion of the trial are pressed as the grounds for bail, notwithstanding the statutory constraint contained in Section 43D(5) of UAPA.

It said in the KA Najeeb case, the court recognised the legislative policy underlying such special statutes like statutory restrictions under Section 43D(5) of UAPA and held that it does not per se take away the power of the constitutional courts to grant bail, where continued detention violates Part III of the Constitution.

The bench said the legal ratio laid down in the KA Najeeb case was a binding precedent for benches of lesser combination and was duly followed in the Gulfisha Fatima (January 5) case.

''In the later decision of Andrabi (May 18 verdict), another bench has expressed reservations on certain aspects in Gulfisha Fatima, and a narrow reading of the KA Najeeb case. Statements of this court are not to be answered by other benches of similar strength.

''A coordinate bench cannot make strong observations and effectively unsettle the ratio of an earlier bench while sitting in equal strength. The law has often grown through reasoned differences, the top court said, adding that a coordinate bench may express doubt.

But when it comes to the reasoning, it cannot be left at criticism, the bench said, and added that a bench of equal strength cannot achieve by language of reservation what it cannot achieve by declaration of law.

The bench said the issue cannot be left uncertain in view of the perceived conflict of opinion; therefore, it was its duty to place the issue before the bench of appropriate strength.

The bench said that the Gulfisha Fatima verdict declined to accept was a mechanical or a solitary application of delay and the January 5 judgment held that the enquiry into delay is contextual and must take into account the nature of allegations, the statute, the stage of proceedings, the realistic trajectory of trial, the causes contributing to delay, the role attributed to the accused and the prima facie material.

Earlier in the day, indicating that it would, in all probability, give interim bail to two 2020 Delhi riots accused, the bench said it would look into Delhi Police's submission that the question of law in bail in UAPA cases be referred to a larger bench, given contradictory views on the matter.

While the Delhi Police did not oppose bail to the two accused, saying they are not the main players, it told the court whether Ajmal Kasab could have been granted bail on grounds of delay in trial.

It sought reference of the question of law to a larger bench on whether prolonged incarceration and delay in trial can override the statutory restrictions on bail under anti-terror laws such as the Unlawful Activities (Prevention) Act, 1967 (UAPA).

ASG S V Raju, appearing for Delhi Police, told the bench that the trial in the Kasab case (2008 Mumbai terror attack convict) was delayed by seven years as there were a large number of witnesses.

On May 18, underlining that ''bail is the rule and jail is the exception'' is not merely an empty statutory slogan, the top court questioned its January 5 judgment denying bail to activists Khalid and Imam.

The top court observed while granting bail to Handwara resident Syed Iftikhar Andrabi in a narco-terror case probed by the NIA.

On January 5, a two-judge bench comprising Justices Aravind Kumar and N V Anjaria refused bail to Khalid and Imam, and said they can file fresh bail applications following the examination of protected witnesses after one year.