Summary
In bail appeals arising from the alleged larger conspiracy behind the February 2020 North-East Delhi riots (FIR No. 59 of 2020, charged under the UAPA and IPC), the Court held that prolonged incarceration does not automatically override the embargo in Section 43D(5) UAPA but triggers a structured, accused-specific scrutiny. Bail was refused to Umar Khalid and Sharjeel Imam, against whom the material prima facie showed a central planning role, with liberty to renew the prayer later; bail was granted to five appellants whose attributed roles were local and executory.
Issues
- Whether prolonged pre-trial incarceration and delay in trial, by themselves, entitle an accused under the UAPA to bail notwithstanding Section 43D(5), and how a delay-based Article 21 plea is to be examined.
- What is the scope of the inquiry into whether an accusation is 'prima facie true' under Section 43D(5) UAPA at the bail stage.
- What is the reach of a 'terrorist act' under Section 15 UAPA, read with Section 18, for the purpose of the bail-stage inquiry.
- Whether the accused in a single conspiracy prosecution must be assessed individually according to the role attributed to each, and how parity is to be applied.
- Whether, on the prosecution material, each of the seven appellants was entitled to bail.
Provisions considered
- Section 43D(5), Unlawful Activities (Prevention) Act, 1967Read as a deliberate legislative departure from ordinary bail law for offences under Chapters IV and VI, barring bail where there are reasonable grounds to believe the accusation is prima facie true. The Court held the inquiry is a threshold test of whether the prosecution material, taken at face value, discloses the statutory ingredients; it is accused-specific ('such person'), excludes a mini-trial or evaluation of defences, and where crossed the embargo operates with full force. (¶¶ 31, 67, 68, 70, 71, 72, 74, 78, 80, 81, 82, 171, 428)
- Section 15, Unlawful Activities (Prevention) Act, 1967Explained as resting on two elements: the requisite intent to threaten the unity, integrity, security (including economic security) or sovereignty of India or to strike terror, and acts causing or likely to cause the listed consequences. The phrase 'by any other means of whatever nature' was held not to be otiose, so the definition is not confined to bombs, firearms or other conventional weapons; disruption of essential supplies and services is also covered. (¶¶ 86, 87, 88, 91)
- Section 18, Unlawful Activities (Prevention) Act, 1967Read with Section 15 as extending liability to conspiracy, attempt, abetment, advice, incitement, knowing facilitation and preparatory acts, so that persons who plan, coordinate or mobilise may be liable without executing the final act; at the bail stage the Court need not finally classify which provision applies. (¶¶ 89, 90, 91)
- Article 21, Constitution of IndiaHeld that delay engages Article 21 but does not by itself displace Section 43D(5); it triggers heightened scrutiny weighing gravity, role, prima facie strength, trial trajectory, causes of delay and intermediate remedies. On the record, delay was not shown to be attributable solely to the prosecution or the court and did not make detention unconstitutional for the two principal accused, but it supported bail for those with limited roles. (¶¶ 28, 30, 31, 34, 35, 41, 43, 44, 52, 53, 56, 57, 101, 428)
- Article 14, Constitution of IndiaApplied in Gulfisha Fatima's case: with allegations and evidence substantially identical to those against co-accused already on bail, denial of bail to her would be hostile discrimination offending Article 14 and the doctrine of parity. (¶¶ 421, 422, 423, 424)
Held
- Prolonged incarceration is a serious constitutional concern but is not a trump card that automatically displaces the statutory restraint in Section 43D(5) UAPA. Delay triggers heightened judicial scrutiny, in which the Court weighs the gravity and statutory character of the offence, the role attributed to the accused, the prima facie strength of the case, and whether continued custody has become demonstrably disproportionate. The Court may also respond with directions for expeditious trial or liberty to renew the bail plea instead of release. (¶¶ 43, 44, 45, 50, 52, 53, 56, 57)
- K.A. Najeeb was read as a safeguard against unconscionable detention, to be invoked in appropriate cases, and not as a rule that bail must follow from the passage of time alone regardless of the statute and the allegations. (¶¶ 32, 33, 52, 61)
- On the record, including findings in a co-accused's case on the same order-sheets, the delay was not shown to be caused only by the prosecution or the court; objections and deferment requests by the accused had contributed. Delay therefore did not, by itself, entitle the appellants to bail. (¶¶ 37, 38, 39, 40, 41, 43)
- Under Section 43D(5), the Court tests whether the prosecution material, taken at face value and without rebuttal, discloses the ingredients of the offence against the individual accused. It does not weigh evidence, assess admissibility or credibility, or conduct a mini-trial. The inquiry is accused-specific and cannot be collective merely because a common conspiracy is alleged. (¶¶ 70, 71, 72, 74, 75, 80, 81)
- The law of conspiracy answers liability, not the separate question of pre-trial liberty. At the bail stage, the Court must distinguish between alleged conspiratorial centrality (conceptualising, directing, orchestrating) and peripheral or executory association, since the need for continued detention varies with the role and the risk each accused presents. (¶¶ 76, 77, 97, 98, 99, 101, 103, 109)
- Section 15 UAPA is not limited to conventional weapons; the words 'by any other means of whatever nature' cover conduct designed to disrupt essential supplies and civic life. Not every blockade or public disorder attracts the UAPA, however; the conduct, taken cumulatively, must be capable of being understood as threatening the unity, integrity, security or sovereignty of the nation. (¶¶ 87, 88, 227, 231, 240)
- For Sharjeel Imam and Umar Khalid, the prosecution material (digital mobilisation platforms, meetings, protected-witness statements attributing directions to start differentiated chakka jams, location records and speeches) prima facie attributed a central planning and mobilising role. Absence from riot sites, lack of recoveries and assertions of non-violence did not answer an allegation of preparatory conspiracy at the bail stage, so the Section 43D(5) embargo applied. Parity was refused because the roles were qualitatively different. (¶¶ 169, 170, 171, 172, 174, 175, 213, 214, 215, 216, 218, 221, 222, 243, 244, 430, 431)
- Parity depends on similarity of role, attribution and material, not on numerical comparison with co-accused released on bail. (¶ 172)
- For Shifa-ur-Rehman, Mohd. Saleem Khan, Meeran Haider and Shadab Ahmed, the attributed roles were logistical, local or executory, carried out on directions from others, without autonomous or strategic command. With investigation complete, no custodial need shown, and risks manageable by conditions, continued detention was disproportionate under Article 21. Gulfisha Fatima was also entitled to bail on parity with co-accused already released on substantially identical allegations, and her being a woman was a relevant proportionality factor. (¶¶ 272, 273, 275, 313, 314, 316, 352, 353, 355, 382, 383, 385, 416, 417, 420, 421, 422, 424, 425, 433)
- The observations are confined to bail and are not an opinion on guilt. The trial court is to proceed expeditiously, giving priority to examining the protected witnesses, and adjournments are to be avoided. (¶¶ 177, 247, 439, 440, 441)
Result
Appeals of Umar Khalid and Sharjeel Imam dismissed; they may renew their bail prayer before the trial court after the protected witnesses are examined or after one year, whichever is earlier. Appeals of Gulfisha Fatima, Meeran Haider, Shifa-ur-Rehman, Mohd. Saleem Khan and Shadab Ahmed allowed; bail granted on a bond of Rs. 2,00,000 with two sureties and strict conditions (stay in Delhi, surrender passports, report twice weekly, no contact with witnesses, no public statements or gatherings). Trial to proceed expeditiously.