PTI
NEW DELHI, May 22: 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 because, upon an accused-specific evaluation, the material did not justify overriding the statutory embargo.
A bench of Justices Aravind Kumar and P B 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.
âBail was declined to two appellants not because Article 21 was treated as subordinate to Section 43D(5), but because, upon an accused-specific evaluation, the court found that their role, the prima facie material attributed to them, and the attendant concerns of trial integrity did not, at that stage, justify overriding the statutory embargo.
âEven in respect of those two appellants, liberty was reserved to renew the prayer for bail upon completion of examination of protected witnesses or upon expiry of one year, whichever was earlier.â
âThat course itself shows that the judgment treated Article 21 as a continuing constitutional check and not as a spent or excluded consideration,â the top court said about the January 5 verdict, denying bail to Khalid and Imam.
Justifying the verdict, it said the decision in Gulfisha Fatima case requires to be understood as it proceeded on the very premise that the KA Najeeb case of the 2021 verdict binds all benches of lesser strength as it is an authoritative pronouncement of a three-judge bench of this court.
âIt expressly recognised that Article 21 occupies a central place in the constitutional scheme; that the right to speedy trial is a facet of personal liberty; and that pre-trial incarceration can- not, by mere passage of time, assume the character of punishment.
It further recognised the KA Najeeb case as a constitutional safeguard against unconscionable detention and recorded that there can be no second opinion on the proposition that statutory restrictions must yield in an appropriate case,â it said.
The bench said the ratio of the KA Najeeb case, therefore, is neither a charter for indefinite incarceration under the cover of Section 43D(5) nor a mathematical command that the mere pas- sage of time, divorced from all surrounding circumstances, must automatically result in bail.
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.
âThe controversy raises a broader question concerning the manner in which constitutional courts are to approach bail where prolonged incarceration is asserted in prosecutions governed by special statutes imposing restrictive bail conditions.
âIn this background, it would be imperative or, in other words, necessary for the appropriate bench that may be constituted by the Chief Justice of India to clarify or expound the position of law laid down in the KA Najeebâs case.
Particularly in the back- drop of the rigour of 43D(5) which imposes restriction consciously and has received the assent of Parliament, which obviously was brought in keeping in mind the valuable right enshrined in Article 21 of the Constitution of India,â the bench ordered.
