Relief provided u/s 436-A CrPC can’t be declined merely because allegations are serious in nature: Delhi High Court grants bail to suspected Indian Mujahideen operative in UAPA case
Justices Suresh Kumar Kait & Manoj Jain [10-05-2024]

Read Order: ABDUL SUBHAN QURESHI v. STATE (NCT OF DELHI) [DEL HC- CRL.A. 417/2024]

Tulip Kanth

New Delhi, May 15, 2024: While noting that section 436-A CrPC recognises the right of an under-trial prisoner to be released on bail in case his incarceration has extended up to half of the maximum period of the imprisonment specified, the Delhi High Court has granted bail to alleged an Indian Mujahideen operative in a case registered under the Unlawful Activities (Prevention) Act, 1967. The High Court considered the fact that his incarceration period is almost touching five years.

The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering an appeal of the accused seeking setting aside of the impugned order passed by the Additional Sessions Judge. The appellant had also urged the Court to grant him bail considering the facts of the case and the provisions of Section 436-A of the Criminal Procedure Code.

The APP for the State opposed the present appeal by claiming that appellant had earlier been declared Proclaimed Offender (PO) and he came to be arrested in the present case only when he had been apprehended in another case. It was also claimed that there are four other matters in which he continues to be in judicial custody and, therefore, the Trial Court had rightly dismissed his application seeking bail under Section 436 A Cr.P.C.

The Bench noted that in the present case charges had already been ascertained and the accused had been charged for offences under Sections 120B, 153A, 153B IPC and under Sections 10 and 13 of Unlawful Activities (Prevention) Act (UAPA). It was also admitted by the APP that Section 43D(5) of UAPA wouldnot be attracted as he had not been charged with any offences punishable under Chapter IV or Chapter VI of UAPA.

The APP admitted that the maximum sentence for the grave-most offence with which he has been charged with, would be of 7 years and his incarceration period in the present case is almost touching 5 years.

“Undoubtedly, the bail cannot be claimed as a matter of right under Section 436-A Cr.P.C”, the Bench said while explaining that the said provision was introduced with a particular purpose and recognised the right of any Under Trial Prisoners (UTP) to be released on bail in case his incarceration has extended up to half of the maximum period of the imprisonment specified. As per the proviso attached to Section 436-A Cr.P.C., the detention can be continued even for a longer period, for the reasons to be recorded in writing.

“Merely, because the allegations against the appellant are serious in nature, cannot be taken as sole ground for declining such relief provided under Section 436-A Cr.P.C”, the Bench said.

The High Court also noted the fact that all his co-accused were already on bail and the case was at the stage of recording of prosecution evidence. The Bench opined that the trial is likely to be concluded in near future as there are 53 cited prosecution witnesses.

Keeping in mind the incarceration period, the Bench allowed the appeal and directed that the appellant be released on bail on the terms and conditions to be imposed by the Trial Court. 

The Bench concluded the matter by observing, “In case there is any violation of any condition imposed by the learned Trial Court or appellant attempts to threaten or influence any witness, directly or indirectly, or attempts to delay the trial, it would be open to prosecution to seek cancellation of bail, without any reference to this Court.”