ASHIM @ ASIM KUMAR HARANATH BHATTACHARYA @ ASIM HARINATH BHATTACHARYA @ ASEEM KUMAR BHATTACHARYAversusNATIONAL INVESTIGATION AGENCY

                          [2021] 9 S.C.R. 607                            607


         ASHIM @ ASIM KUMAR HARANATH                                     A
         BHATTACHARYA @ ASIM HARINATH
   BHATTACHARYA @ ASEEM KUMAR BHATTACHARYA
                                  v.
             NATIONAL INVESTIGATION AGENCY
                                                                         B
                 (Criminal Appeal No. 1525 of 2021)
                       DECEMBER 01, 2021
         [AJAY RASTOGI AND ABHAY S. OKA, JJ.]
      Bail: Post-arrest bail – Trial for offence under National
                                                                         C
Investigation Agency Act, 2008 – Charge sheet filed against the
accused in 2012 while charges framed after seven years in 2019 –
Statement of de facto complainant still not completed – Large number
of prosecution witnesses yet to be examined – Appellant-accused in
custody since 2012 and completed nine and a half years of
incarceration as undertrial prisoner – Appellant seeking bail – Held:    D
Deprivation of personal liberty without ensuring speedy trial is not
consistent with Art.21 of the Constitution of India – While
deprivation of personal liberty for some period may not be avoidable,
period of deprivation pending trial/appeal cannot be unduly long
– At the same time, timely delivery of justice is part of human rights
                                                                         E
and denial of speedy justice is a threat to public confidence in the
administration of justice – Appellant-accused made out a case for
grant of post-arrest bail pending trial – Constitution of India –
Art.21 – National Investigation Agency Act, 2008.
       Judicial notice: Under the scheme of the National Investigation
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Agency Act, 2008, the power is vested with the Central Government
in consultation with the Chief Justice of the High Court, for the
trial of scheduled offences, to designate one or more Courts of
Session as Special Courts – s.19 of the Act 2008 envisages that the
trial under the Act of any offence by a Special Court shall be held
on day-to-day basis on all working days and shall be concluded in        G
preference to the trial of such other case and accordingly the trial
of such other case shall, if necessary, remain in abeyance – It seems
that only one such Special Court has been designated by the State
of West Bengal to try such cases under the Act 2008 – In the instant
case, the order sheets indicated that hearing was taking place only
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                                 607
608            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A     one day in a month and if this procedure is followed in conducting
      the trial under Act 2008, it would frustrate the very purpose with
      which the Special Courts are designated – State of West Bengal to
      take up the issue and designate more dedicated courts of Sessions
      as Special Courts for the trial of offences specified in the schedule
      appended to the Act 2008 – At the same time, the Central Government
B
      may also, in consultation with the Chief Justice of the High Court,
      Calcutta may exercise its power and take up the issue at the earliest
      so that such trials which are pending under the Act 2008 may go
      ahead speedily and the mandate, as intended by the legislature in
      its wisdom, reflected from s.19 of the Act, is being complied with in
C     its letter and spirit – National Investigation Agency Act, 2008.
            Allowing the appeal, the Court
            HELD: 1.1 The requirement of law as being envisaged
      under Section 19 of the National Investigation Agency Act, 2008
      mandates that the trial under the Act of any offence by a Special
D     Court shall be held on day-to-day basis on all working days and
      have precedence over the trial of any other case and Special
      Courts are to be designated for such an offence by the Central
      Government in consultation with the Chief Justice of the High
      Court as contemplated under Section 11 of the Act 2008 but the
E     ground realities are totally different as in the instant case, after
      the charge-sheets came to be filed way back in 2012, the charges
      have been framed after 7 years of filing of the charge-sheet on
      20th June, 2019. [Para 10][612-A-C]
             1.2 The statement of PW-1/de-facto complainant has still
F     not been completed and there are 298 prosecution witnesses in
      the calendar of witness although the respondent has stated in its
      counter affidavit that it may examine only 100 to 105 witnesses
      but indeed may take its own time to conclude the trial. This fact
      certainly cannot be ignored that the appellant is in custody since
      6 th July, 2012 and has completed nine and half years of
G     incarceration as an undertrial prisoner. [Para 11][612-D-E]
             1.3 Deprivation of personal liberty without ensuring speedy
      trial is not consistent with Article 21 of the Constitution of India.
      While deprivation of personal liberty for some period may not be

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avoidable, period of deprivation pending trial/appeal cannot be        A
unduly long. At the same time, timely delivery of justice is part of
human rights and denial of speedy justice is a threat to public
confidence in the administration of justice. The appellant accused
has made out a case for grant of post-arrest bail pending trial.
[Paras 13, 15][612-G-H; 613-D-E]
                                                                       B
      2.1 Under the scheme of the Act 2008, the power is vested
with the Central Government in consultation with the Chief Justice
of the High Court, for the trial of scheduled offences, designate
one or more Courts of Session as Special Courts, by notification
in the Official Gazette, with the place of jurisdiction of special
Courts and its jurisdictional power has been defined under             C
Sections 13 and 14 of the Act 2008. At the same time, it has been
mandated under Section 19 of the Act 2008 that the trial under
the Act of any offence by a Special Court shall be held on day-to-
day basis on all working days and shall be concluded in preference
to the trial of such other case and accordingly the trial of           D
such other case shall, if necessary, remain in abeyance.
[Para 16][613-E-G]
       2.2 Only one such Special Court has been designated by
the State of West Bengal to try such cases under the Act 2008.
The order sheets have been placed for perusal of the instant           E
case and it indicates that hearing is taking place only one day in a
month and if this procedure is being followed in conducting the
trial under Act 2008, it frustrates the very purpose with which
the special Courts are designated. It is clearly demonstrated from
the instant case that after the charge-sheet came to be filed in
the year 2012, charges have been framed in June 2019 and               F
looking to the voluminous record and number of the prosecution
witnesses which are to be examined, it may take its own time to
conclude and indeed the undertrial prisoner cannot be detained
for such a long period of incarceration. In the given circumstances,
it is appropriate to direct that the State of West Bengal shall take   G
up the issue and designate more dedicated courts of Sessions as
Special Courts for the trial of offences specified in the schedule
appended to the Act 2008. At the same time, the Central
Government may also, in consultation with the Chief Justice of

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610            SUPREME COURT REPORTS                         [2021] 9 S.C.R.


A     the High Court, Calcutta may exercise its power and take up the
      issue at the earliest so that such trials which are pending under
      the Act 2008 may go ahead speedily and the mandate, as intended
      by the legislature in its wisdom, reflected from Section 19 of the
      Act, is being complied with in its letter and spirit.
      [Paras 17, 18, 19][614-A-F]
B
            Union of India vs. K.A. Najeeb (2021) 3 SCC 713
            – referred to.
                              Case Law Reference
      (2021) 3 SCC 713                 referred to              Para 14
C
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No.1525 of 2021.
            From the Judgment and Order dated 15.03.2021 of the High Court
      of Calcutta in CRA No.209 of 2020.
D           Colin Gonsalves, Sr. Adv., Sadiq Noor, Satya Mitra, Advs. for the
      Appellant.
           K. M. Nataraj, ASG, Akshay Amritanshu, Ms. Swati Ghildiyal,
      Mohd. Akhil, Shailesh Madiyal, Ms. Aakanksha Kaul, Arvind Kumar
      Sharma, Aman Sahani, Advs. for the Respondent.
E           The Judgment of the Court was delivered by
            RASTOGI, J.
            1. Leave granted.
            2. We have heard learned counsel for the parties.
F
             3. The instant appeal has been filed on behalf of accused
      no. 6 (Ashim @ Asim Kumar Haranath Bhattacharya) out of the total
      number of 14 accused persons seeking post arrest bail which came to
      be rejected by the learned trial Court by Order dated 25th February,
      2020 and also by the High Court by Order dated 15th March, 2021.
G
            4. The FIR No. 138/2012 dated 1st March, 2012 was initially lodged
      under Sections 120B, 121, 121A, 122 of the IPC, Section 25(1A) of the
      Arms Act, 1959 and Section 5 of the Explosive Substances Act, 1908
      against five accused persons by a de-facto complainant who is an

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Inspector, Special Task Force. Later, the National Investigation Agency       A
took over the investigation. The said case was re-registered as RC No.
01/2012/NIA/DLI at PS NIA Headquarters, New Delhi for offences
under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms
Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections
18,20,40(1)(b)(c) of the Unlawful Activities (Prevention) Act,
                                                                              B
1967(hereinafter being referred to as “UAP Act”) on 12 th April, 2012.
       5. After investigation, the charge sheet was initially filed against
A-1 to A-5 on 23rd August, 2012 and thereafter the first supplementary
charge sheet was filed on 27th December, 2012 against A-6 to A-9 in
which the appellant was named as A-6 and the second supplementary
charge sheet was filed on 3rd July, 2017 against another 5 accused            C
persons. The said accused persons are presently absconding. The charges
later came to be framed on 20th June, 2019 for offences under Sections
121, 121A, 122, 120B IPC and under Sections 25(1)(a), 25(1A), 25(1-
AA) of Arms Act, 1959 and under Sections 18 and 20 of the UAP Act.
At this stage, PW 1 who is the de-facto complainant, his cross-               D
examination has been going on for quite a long time and still it has not
been completed.
      6. The appellant was arrested on 6th July, 2012 on the basis of a
production warrant sent to Nagpur Central Jail, Maharashtra. The
appellant was in jail earlier in connection with another case(FIR No. 28/     E
2007 dated 11th May, 2007) in which he was acquitted by the competent
Court of jurisdiction by a judgment dated 15th February, 2014.
       7. It has come on record that there are 298 prosecution witnesses
in the calendar of witnesses as referred to in the charge sheet but it has
been stated in the counter affidavit filed by the respondent that the         F
prosecution in all likelihood may examine only 100 to 105 prosecution
witnesses.
       8. The charges against the accused appellant are undoubtedly
serious but the charges will have to be balanced with certain other factors
like the period of incarceration which the appellant has undergone and        G
the likelihood period within which the trial can be expected to be finally
concluded. That apart, the appellant is 74 years of age.
       9. Learned counsel for the respondent vehemently opposed the
appeal filed by the accused appellant seeking post arrest bail and submits
that the delay is in no manner be attributable to the prosecution and this
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612             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     Court may direct the trial Court to take up the case on day-to-day basis
      and conclude the trial at the earliest.
             10. That the requirement of law as being envisaged under Section
      19 of the National Investigation Agency Act, 2008 (hereinafter being
      referred to as “Act 2008”) mandates that the trial under the Act of any
B     offence by a Special Court shall be held on day-to-day basis on all working
      days and have precedence over the trial of any other case and Special
      Courts are to be designated for such an offence by the Central
      Government in consultation with the Chief Justice of the High Court as
      contemplated under Section 11 of the Act 2008 but the ground realities
      are totally different as in the instant case, after the charge-sheets came
C     to be filed way back in 2012, the charges have been framed after 7
      years of filing of the charge-sheet on 20th June, 2019.
             11. We have to balance the nature of crime in reference to which
      the appellant is facing a trial. At the same time, the period of incarceration
      which has been suffered and the likely period within which the trial can
D     be expected to be completed, as is informed to this Court that the
      statement of PW-1/de-facto complainant has still not been completed
      and there are 298 prosecution witnesses in the calendar of witness
      although the respondent has stated in its counter affidavit that it may
      examine only 100 to 105 witnesses but indeed may take its own time to
E     conclude the trial. This fact certainly cannot be ignored that the appellant
      is in custody since 6th July, 2012 and has completed nine and half years
      of incarceration as an undertrial prisoner.
             12. This Court has consistently observed in its numerous judgments
      that the liberty guaranteed in Part III of the Constitution would cover
F     within its protective ambit not only due procedure and fairness but also
      access to justice and a speedy trial is imperative and the undertrials
      cannot indefinitely be detained pending trial. Once it is obvious that a
      timely trial would not be possible and the accused has suffered
      incarceration for a significant period of time, the Courts would ordinarily
      be obligated to enlarge him on bail.
G
             13. Deprivation of personal liberty without ensuring speedy trial is
      not consistent with Article 21 of the Constitution of India. While deprivation
      of personal liberty for some period may not be avoidable, period of
      deprivation pending trial/appeal cannot be unduly long. At the same time,
      timely delivery of justice is part of human rights and denial of speedy
H     justice is a threat to public confidence in the administration of justice.
                                                                               613


      14. The three-Judge Bench of this Court in Union of India Vs.            A
K.A. Najeeb 2021(3) SCC 713 had an occasion to consider the long
incarceration and at the same time the effect of Section 43-D(5) of the
UAP Act and 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        B
      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     C
      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         D
      used as the sole metric for denial of bail or for wholesale breach
      of constitutional right to speedy trial.
      15. In the above circumstances, we are of the view that the
appellant accused has made out a case for grant of post-arrest bail
pending trial.                                                                 E
        16. Before parting with the order, we would like to observe that
under the scheme of the Act 2008, the power is vested with the Central
Government in consultation with the Chief Justice of the High Court, for
the trial of scheduled offences, designate one or more Courts of Session
as Special Courts, by notification in the Official Gazette, with the place     F
of jurisdiction of special Courts and its jurisdictional power has been
defined under Sections 13 and 14 of the Act 2008. At the same time, it
has been mandated under Section 19 of the Act 2008 that the trial under
the Act of any offence by a Special Court shall be held on day-to-day
basis on all working days and shall be concluded in preference to the
trial of such other case and accordingly the trial of such other case shall,   G
if necessary, remain in abeyance. The power of State Government to
designate one or more Courts as Special Courts for the trial of offences
under any or all the enactments specified in the Schedule is provided
under Section 22 of the Act, 2008.
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614             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A            17. It has been informed to this Court that only one such Special
      Court has been designated by the State of West Bengal to try such
      cases under the Act 2008. Before us, the order sheets have been placed
      for perusal of the instant case and it indicates that hearing is taking place
      only one day in a month and if this procedure is being followed in
      conducting the trial under Act 2008, it frustrates the very purpose with
B
      which the special Courts are designated.
             18. It is clearly demonstrated from the instant case that after the
      charge-sheet came to be filed in the year 2012, charges have been framed
      in June 2019 and looking to the voluminous record and number of the
      prosecution witnesses which are to be examined, it may take its own
C     time to conclude and indeed the undertrial prisoner cannot be detained
      for such a long period of incarceration noticed by us in the instant case.
      The correspondence which has taken place between the Central
      Government and the State of West Bengal from time to time is placed
      for our perusal but nothing elicits from the record.
D            19. In the given circumstances, we consider it appropriate to direct
      that the State of West Bengal shall take up the issue and designate more
      dedicated courts of Sessions as Special Courts for the trial of offences
      specified in the schedule appended to the Act 2008. At the same time,
      the Central Government may also, in consultation with the Chief Justice
E     of the High Court, Calcutta may exercise its power and take up the
      issue at the earliest so that such trials which are pending under the Act
      2008 may go ahead speedily and the mandate, as intended by the
      legislature in its wisdom, reflected from Section 19 of the Act, is being
      complied with in its letter and spirit.

F            20. We accordingly direct that the accused appellant be produced
      before the trial Court within three days and shall be released on post-
      arrest bail by the learned trial Court. We also make it clear that the
      learned trial Court will be at liberty to consider and impose appropriate
      conditions subject to which the appellant accused will be released on
      bail so as to ensure that the appellant accused is available for trial in
G     terms of the present order.
             21. Consequently, in light of the above, the appeal is allowed and
      the judgment and order of the High Court is set aside.
            22. Pending application(s), if any, stand disposed of.
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     23. Copy of this order be sent to Chief Secretary, State of West      A
Bengal and Registrar of the High Court of Calcutta for necessary
compliance.

Devika Gujral                                           Appeal allowed .

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