TASLEEM AHMED v. STATE GOVT. OF NCT OF DELHI

(2) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days.”

13. A reading of Section 21(4) of the NIA Act makes it manifestly clear that an appeal shall lie to the High Court against the bail order passed by the Special Court.

14. The Apex Court in the case of State of AP through Inspector General, NIA vs. Mohd. Hussain, (2014) 1 SCC 258, has clarified this position and observed as under: –

27.1. Firstly, an appeal from an order of the Special Court under the NIA Act, refusing or granting bail shall lie only to a Bench of two Judges of the High Court.

27.2. And, secondly as far as Prayer (b) of the petition for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under the MCOC Act, 1999, as well as the Unlawful Activities (Prevention) Act, 1967, such offences are triable only by the Special Court, and therefore application for bail in such matters will have to be made before the Special Court under the NIA Act, 2008, and shall not lie before the High Court either under Section 439 or under Section 482 of the Code. The application for bail filed by the applicant in the present case is not maintainable before the High Court.

27.3. Thus, where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a Bench of two Judges of the High Court.”

15. In the present case, the Appellant filed his interim bail application before this Court without exhausting his rights before the Special Court, as evidently stated under Section 21(4) of the NIA Act. Given the procedural fallacy on part of the Appellant, this Court cannot entertain the interim bail application as only an appeal impugning the bail order of the Special Court is maintainable before the Division Bench of the High Court.

16. In light of the foregoing paragraphs, the interim bail application bearing CRL.M.B No. 2168/2024 filed by the Appellant before this Court is not maintainable and is, hereby, dismissed.

17. The only question which remains for adjudication is whether bail under Section 43D(5) of UAPA can be granted to the Appellant solely on the ground of delay in the facts of the present case ?

18. Adverting to the question of delay raised specifically by the Appellant herein, it is pertinent to note that the Appellant has vehemently submitted that the delay in trial occurred due to the various adjournments taken by the State for arguing the case on point of charge.

19. To ascertain the correct picture, it is pertinent to sum-up the proceedings of the Trial Court and the same are tabulated as under:– DATE OF THE ORDER SUMMARY OF THE TRIAL COURT’S ORDER-SHEETS 05.08.2023 - Compliance under Section 207 of the CrPC qua all the accused persons was completed. - Matter was listed for arguments on charge on 11.09.2023 onwards for a day-to-day hearing. - Learned SPP submitted that he shall commence his arguments on 11.09.2023. 11.09.2023 - The accused persons namely, Devangana Kalita, Natasha Narwal, Sowjhanya Shankaran, Asif Iqbal Tanha objected to commencement of arguments on charge as the investigation is still ongoing. - Learned SPP stated that he is ready to begin the arguments and objections were raised that despite giving considerable period of time for starting the arguments on charge, no adjournment application was moved on time. He stated that the accused persons will later claim bail on the ground of delay in trial. - The Appellant herein, Tasleem Ahmed has submitted that he wants the arguments on charge to begin. 18.09.2023 - Accused persons, namely, Meeran Haider, Athar Khan, Khalid Saifi, Faizan Khan, Ishrat Jahan, Sharjeel Imam, Safoora Zargar, Saleem Malik @ Munna, Shifaur-Rehman, Shadab Ahmad and Gulfisha Ahmed have sought for deferment of arguments on point of charge as the investigation is not yet completed. - On the other hand, accused persons, namely, Saleem Khan, Tasleem Ahmed, Umar Khalid and Tahir Hussain submits that they want the arguments on charge to begin. 06.01.2024 to 08.08.2024 - The accused who got bail were not permitting the argument on charge to commence on the ground that the investigation had not been completed. There is nothing to indicate that during this period the Appellant made any specific argument to jump the queue and advance arguments on charge. - Adjournments were sought to address the arguments in rebuttal. 20.09.2024 - The accused persons collectively submitted to the learned Trial Court that they shall arrive at a consensus on who will start the arguments on point of charge and stated that a schedule to that effect will be submitted to the learned Trial Court for convenience purposes. 04.10.2024 - Accused persons, namely, Tahir Hussain, Asif Iqbal @ Tanha, Umar Khalid, Sharjeel Imam, Ishrat Jahan sought for adjournments citing difficulties in commencing the arguments on charge. - The learned Trial Court had recorded its distress in the said matter as the accused persons are delaying the proceedings despite reaching a consensus on addressing the arguments in a particular sequence and consent has been taken to argue the matter on a day-today basis. However, the accused persons including the Appellant were not ready to start their arguments on charge. 20.11.2024 to 07.02.2025 - Adjournments sought by the accused persons. No attempt is made by the Appellant to commence arguments. 12.02.2025 - Objection of learned SPP is recorded wherein he submits that despite directions of day-to-day hearing, the accused persons are not coming forward to address the arguments on charge. He also stated that nobody is ready to address the arguments till date despite a consensual schedule having been made among the accused persons. 04.04.2025 - Tasleem Ahmed commenced/completed his arguments on charge. 08.04.2025 to - Adjournments sought by other accused persons citing 02.07.2025 certain difficulties in arguing the matter on charge

20. Upon perusal of the aforesaid table, it is observed that by Order dated 05.08.2023, the arguments on charge are being heard from 11.09.2023 onwards. On 11.09.2023 and 18.09.2023, several co-accused persons objected to the arguments on charge due to the ongoing investigation. It, therefore, cannot be said that the State is delaying the hearing on charge.

21. Material on record indicates the reluctance on the part of the accused including the Appellant to advance the arguments on charge. Though, on 20.09.2024, a consensus was reached by the accused persons to streamline the proceedings by submitting a schedule as to who will argue on charge sequentially, despite the same, arguments on charge were not commenced by the Appellant. The learned Trial Court recorded its distress in Order dated 04.10.2024, which reads as under:– “It is surprising that on the last date of hearing the court specifically noted that the matter shall be heard on charge on day to day basis and after considering the submissions of the Ld. Counsel for the accused persons that they will make consensus among themselves for addressing arguments in a particular sequence and with their consent only the matter was fixed today for arguments on charge but still none of the counsel is ready to address arguments. The court sees that more than sufficient time was given but still Ld. Counsel for the accused persons are not ready today, The accused persons are warned that the matter should not get delayed further unnecessarily on their part and any delay will be viewed by the court seriously."

22. A bare perusal of the order sheets clearly indicate that the learned Counsel for the accused have taken many adjournments during the course of arguments on charge. The order-sheets show that the learned Counsel for the accused were not ready to argue the matter on charge, thereby protracting the proceedings. The facts and order sheets reveal that the accused themselves have been responsible for delaying the trial at various points in time. The inordinate delay in trial, as alleged by the Appellant herein is not due to the inaction of the Respondent Agency or the Trial Court.

23. Material on record shows that at no point of time, the learned Trial Court has or has unnecessarily delayed the arguments on charge. In fact, to facilitate the proceedings properly and in a speedy manner, the learned Trial Court has ensured that the proceedings take place in a structured manner, wherein liberty was given to the accused persons to come to a consensus as to who will argue the case sequentially.

24. Adverting to the limited issue herein i.e., whether bail under Section 43D(5) of the UAPA can be granted solely on the basis of delay in trial in the present set of facts, it is apposite to read Section 43D(5) of UAPA, which is as under:– “43D(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

25. The proviso of Section 43D(5) of the UAPA, which is couched in negative terms, states that if the Courts are satisfied that the prima facie allegations against the accused person are true after “perusal of the case diary or the report made under Section 173 of CrPC”, bail cannot be granted. In other words, after examining the material annexed to the chargesheet, if the Courts are satisfied that the allegations against the accused are not true, then bail under Section 43D(5) of the UAPA can be granted. What amounts to prima facie case has been elaboratively dealt by the Apex Court in the case of Gurwinder Singh v. State of Punjab, (2024) 5 SCC 403. The relevant portions of the said judgment are as under: –

commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43-D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act.

26. The conventional idea in bail jurisprudence vis-àvis ordinary penal offences that the discretion of courts must tilt in favour of the oft-quoted phrase — “bail is the rule, jail is the exception” — unless circumstances justify otherwise — does not find any place while dealing with bail applications under the UAP Act. The “exercise” of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in the proviso to Section 43-D(5)— “shall not be released” in contrast with the form of the words as found in Section 437(1)CrPC — “may be released” — suggests the intention of the legislature to make bail, the exception and jail, the rule.

27. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under the UAP Act, the courts are merely examining if there is justification to reject bail. The “justifications” must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, “prima facie” standard, as a measure of the degree of satisfaction, to be recorded by the Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of “strong suspicion”, which is used by courts while hearing applications for “discharge”. In fact, the Supreme Court in Zahoor Ahmad Watali [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383] has noticed this difference, where it said: (SCC p. 24, para 23)

1.1. Examine if, prima facie, the alleged “accusations” make out an offence under Chapter IV or VI of the UAP Act;

1.2. Such examination should be limited to case diary and final report submitted under Section 173CrPC; (2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439CrPC (“tripod test”)? On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused, etc. the court must ask itself:

2.1. Whether the accused is a flight risk?

2.2. Whether there is apprehension of the accused tampering with the evidence?

2.3. Whether there is apprehension of accused influencing witnesses?

30. The question of entering the “second test” of the inquiry will not arise if the “first test” is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the “tripod test”. Test for rejection of bail: Guidelines as laid down by Supreme Court in Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383]

31. In the previous section, based on a textual reading, we have discussed the broad inquiry which courts seized of bail applications under Section 43-D(5) of the UAP Act read with Section 439CrPC must indulge in. Setting out the framework of the law seems rather easy, yet the application of it, presents its own complexities. For greater clarity in the application of the test set out above, it would be helpful to seek guidance from binding precedents.

32. In this regard, we need to look no further than Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383] which has laid down elaborate guidelines on the approach that courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of paras 23 to 24 and 26 to 27, the following 8-point propositions emerge and they are summarised as follows:

32.1. Meaning of “prima facie true”: (Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383], SCC p. 24, para 23) On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.

32.2. Degree of satisfaction at pre charge-sheet, post charge-sheet and post-charges — compared: (Watali SCC 1: (2019) 2 SCC (Cri) 383], SCC p. 28, para 26)

Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.”

32.3. Reasoning, necessary but no detailed evaluation of evidence: (Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383], SCC p. 27, para 24)

Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383], SCC p. 27, para 26)

until contradicted and overcome or disproved by other evidence…. In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible.

33. It will also be apposite at this juncture to refer to the directions issued in Devendar Gupta v. NIA [Devendar Gupta v. NIA, 2014 SCC OnLine AP 192: (2014) 2 ALD (Cri) 251] wherein a Division Bench of the High Court of Andhra Pradesh strove to strike a balance between the mandate under Section 43-D on one hand and the rights of the accused on the other. It was held as follows: (SCC OnLine AP) “The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is “prima facie true”: (1) Whether the accused is/are associated with any organisation, which is prohibited through an order passed under the provisions of the Act; (2) Whether the accused was convicted of the offences involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities; (3) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the accused; (4) Whether any eyewitness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the accused, at or around the scene of occurrence; and (5) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies.”

34. In Kekhriesatuo Tep v. NIA [Kekhriesatuo Tep v. NIA, (2023) 6 SCC 58: (2023) 2 SCC (Cri) 676] the two-Judge Bench (B.R. Gavai and Sanjay Karol, JJ.) while dealing with the bail application for the offence of supporting and raising funds for terrorist organisation under Sections 39 and 40 of the UAP Act relied upon NIA v. Zahoor Ahmad Shah Watali [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383] and observed that: (Kekhriesatuo Tep case [Kekhriesatuo Tep v. NIA, (2023) 6 SCC 58: (2023) 2 SCC (Cri) 676], SCC p. 63, para 13) While dealing with the bail petition filed by the accused against whom offences under Chapters IV and VI of UAPA have been made, the court has to consider as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. The Bench also observed that distinction between the words “not guilty” as used in TADA, MCOCA and the NDPS Act as against the words “prima facie” in the UAPA as held in Watali SCC 1: (2019) 2 SCC (Cri) 383] to state that a degree of satisfaction required in the case of “not guilty” is much stronger than the satisfaction required in a case where the words used are “prima facie”….

35. In Sudesh Kedia v. Union of India [Sudesh Kedia v. Union of India, (2021) 4 SCC 704: (2021) 2 SCC (Cri) 496] the Bench of Nageswara Rao and S. Ravindra Bhat, JJ. while dealing with a bail application for the offence under Sections 17, 18 and 21 of the UAP Act relied upon the principle propounded in Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383] (at SCC p. 24, para 23) and observed that: (Sudesh Kedia case [Sudesh Kedia v. Union of India, (2021) 4 SCC 704: (2021) 2 SCC (Cri) 496], SCC p. 708, para 12) the expression “prima facie” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows that complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted.”

26. The Judgment of the Apex Court in Gurwinder Singh (supra), has considered the Judgment of the Apex Court in NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, which has also held that before granting bail for offences under the UAPA, the Court has to peruse the material and come to the conclusion that there are no reasonable grounds for believing that the accusation against the accused is prima facie true. Conversely, if in the opinion of the Court, there are reasonable grounds for believing that the accusation against such person are true, then the question of granting bail would not arise. None of the decisions indicate that delay can be the sole ground for grant of bail.

27. Though the Apex Court in K. A. Najeeb (supra) indicates that Section 43D(5) of the UAPA per se does not oust the jurisdiction of the constitutional courts to grant bail on violation of Part III of the Constitution of India, but it further states that they have to be construed harmoniously. The Apex Court in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, has observed as under:– “17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the 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. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

28. A reading of the judgment passed by the Apex Court in K. A. Najeeb (supra) also indicates that delay cannot be the sole factor for grant of bail. It must be emphasized that in the facts of this case, majority of delay is attributable to the accused and not on the inability on the part of the prosecution to speed up the proceedings.

29. The Apex Court in Vernon v. State of Maharashtra, (2023) 15 SCC 56, has quoted with approval the reasons given by the Apex Court in K. A. Najeeb (supra) that Section 43D(5) of the UAPA does not denude the jurisdiction of a constitutional court in testing if continued detention in a given case will breach the concept of liberty enshrined under Article 21 of the Constitution of India. However, a reading of Vernon (supra) also does not indicate that delay can be the factor for grant of bail especially when the State cannot be solely held responsible for the delay in the proceedings. The relevant portion of the said Judgment reads as under:–

India, would apply in a case where such a bailrestricting clause is being invoked on the basis of materials with prima facie low-probative value or quality.

53. In Zahoor Ahmad Shah Watali [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1: (2019) 2 SCC (Cri) 383] reference was made to the judgment of Jayendra Saraswathi Swamigal v. State of T.N. [Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13: 2005 SCC (Cri) 481] in which, citing two earlier decisions of this Court in State v. Jagjit Singh [State v. Jagjit Singh, 1960 SCC OnLine SC 2: AIR 1962 SC 253] and Gurcharan Singh v. State (Delhi Admn.) [Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118: 1978 SCC (Cri) 41], the factors for granting bail under normal circumstances were discussed. It was held that the nature and seriousness of the offences, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the appellants' case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the appellants, pending final outcome of the case under the other provisions of the 1860 Code and the 1967 Act.”

30. The Apex Court in Manish Sisodia v. Directorate of Enforcement, 2024 SCC OnLine SC 1920 further emphasises that if the trial is being affected due to the conduct of the State or the Trial Court showcasing deliberate attempts to delay the trial, then the embargo under Section 43D(5) of the UAPA takes a back seat. The relevant extracts reads as under:-

proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years.”

31. In the case of Harpreet Singh Talwar alias Kabir Talwar vs. State of Gujarat through National Investigating Agency, 2025 SCC OnLine SC 1103, the Apex Court reiterated the significance on the harmonious approach to be taken by the Court depending on the case-to-case basis. The relevant paragraph reads as under:-

32. Furthermore, this Court in the case of Jagtar Singh Johal vs. NIA, 2024 SCC Online Del 89, observed that the bail under Section 43D(5) of the UAPA cannot be granted solely on the basis of long incarceration of the accused person and the same has to be viewed along with the gravity of offences which are supported by the relevant material provided by the Respondent Agency. The relevant portion of the same is as follows:-

international networks as also acts against the nation have to be considered as a distinct and more serious category of offences. All offences covered under the UAPA cannot be treated with the same brush. Even for the purpose of grant of bail, such offences are not to be examined on the basis of mere facts of one particular FIR but on a larger canvas in the overall scheme of the multiple FIRs, if existing, against a particular accused. The damage in terms of loss of life as also the intent behind such attacks i.e., to destabilise the law and order situation as well as to strike terror in the minds of people in or outside India, has to be considered for the purposes of granting bail. Terrorist activities, which have trans-national links, would also fall in a more serious and grave category of cases. Accused, who are involved in such activities, could be working overtly and covertly. The fact that they could be linked through dark networks which are easily not traceable needs to be borne in mind. Investigating agencies face enormous challenges in unearthing evidence in such cases. While speedy trial is necessary as a Constitutional prescription, in cases involving antinational activities and that too terrorism at an international scale, long incarceration in itself ought not to lead to enlargement on bail when facts show involvement in such activities. In the case of persons associated with terrorist or unlawful organizations having their activities spanning across countries, the consideration for grant of bail in such serious offences ought to be strictly dealt with, as prescribed in the statute(UAPA), on the benchmarks contained in Section 43D(5) of the Act.”

33. Likewise, this Court in the case of Nayeem Ahmad Khan v. National Investigating Agency, 2025 SCC OnLine Del 2233, observed that long incarceration alone cannot be a ground to grant bail under Section 43D(5) of UAPA and the Court has to evaluate the same based on the factual matrix and its implications, thereof. The relevant paragraphs are reproduced hereinunder:-

97. It is also trite in law that ratio in any decision has to be seen in its overall facts and circumstances and even a slight variation in the facts can have substantial difference in its precedential value and cannot be applied to the other without considering the specific facts and circumstances that have unfolded in the case at hand.”

34. The foregoing judgment specifically states that long incarceration cannot be the sole reason for grant of bail if the facts of the case demand otherwise. Therefore, it is inevitable that the Court while dealing with the grant of bail under Section 43D(5) of the UAPA has to deal with the merits of the case. Except in case of palpable violation of fundamental rights or breach of constitutional rights, bail cannot be granted on the sole factor of long incarceration or delay in trial because, to even allow itself to adjudicate on the issue of grant of bail under Section 43D(5), the Courts must analyse and examine the material provided by the Investigating Agency in whole, which is nothing but assessing the merits of the case on a prima facie basis.

35. Factors such as long incarceration or delay in trial cannot be taken as sole factors for the grant of bail without considering the gravity of the offence or the role played by the accused in the said case, which can be only determined upon a consideration on the merits of the case. Such factors are only ancillary in nature and cannot be viewed in isolation for considering bail under Section 43D(5) of UAPA.

36. Therefore, it is imperative for the Appellant to show the Court that the factors such as delay in trial and long incarceration warrants bail under Section 43D(5) of UAPA, when coupled with the merits of the case i.e., the material annexed with the chargesheet. In the present case, the Appellant has not even pressed on the merits of the case, thereby disabling this Court from perusing the material in order to make an informed decision as to the grant of bail.

37. In light of the foregoing reasons and especially in view of the peculiar facts of this case, the Appellant cannot be granted bail under Section 43D(5) of the UAPA only on the ground of delay in trial keeping in mind, the Judgment of Gurwinder Singh, (supra), as the same would have to include the determination of a “prima facie” case, which would involve an assessment of the case on merits as well.

38. Material on record indicates that certain accused persons have got bail and some of the accused persons are in prison. Those accused persons who got bail are trying to delay the arguments on charge on the ground that the investigation is still pending. The arguments on charge are being delayed by the accused persons who are out on bail at the cost of those accused persons who are in prison. Despite orders from the Court directing the Counsels for the accused persons to decide amongst themselves as to how and in what order the arguments on charge will be advanced by the accused, there seems to be no consensus among them. Mr. Mehmood Pracha, learned Counsel for the Appellant, has tried to contend that the accused waited in queue patiently as it would not have been fair on his part to jump the queue and advance the arguments on charge. However, that contention of the learned Counsel for the Appellant cannot be accepted as the Appellant did not advance arguments despite requests by the Special Court and has advanced arguments only on 04.04.2025 which is during the pendency of the instant appeal. This Court therefore does not find any infirmity in the impugned Order passed by the learned Trial Court rejecting the bail of the Appellant on the ground of delay.

39. Undoubtedly, speedy trial is a concomitant and a facet of Article 21 of the Constitution of India. However, to ask for bail after there has been a systematic delay in trial on the part of the accused, is not acceptable and if it is done then the statute, which restricts the grant of bail on the ground of delay in trial can easily be circumvented by delaying the trial on the one hand and by pressing bail applications on the other. The fact that the accused has completed his arguments on charge alone would not entitle him to bail at this juncture on the ground of delay in trial as the arguments on charge were not advanced by the Appellant in the first available occasion.

40. Accordingly, the instant appeal is dismissed along with pending applications, if any.

41. It is made clear that this Court has not gone into the merits of the case.

SUBRAMONIUM PRASAD, J HARISH VAIDYANATHAN SHANKAR, J SEPTEMBER 02, 2025 hsk/sm