Supreme Court questions January verdict denying bail to Umar Khalid, Sharjeel Imam

The Supreme Court questioned its January verdict denying bail to Umar Khalid and Sharjeel Imam in the Delhi riots conspiracy case, stressing that constitutional liberty and the principle of “bail over jail” remain applicable even in cases under the UAPA

New Delhi: The Supreme Court on Monday questioned its January 5 verdict denying bail to activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case, underlining that “bail is the rule and jail is the exception” is not merely an empty statutory slogan.

A bench of Justices B V Nagarathna and Ujjal Bhuyan, while granting bail to Handwara resident Syed Iftikhar Andrabi in a narco-terror case probed by the National Investigation Agency, said it had “serious reservations” about the reasoning adopted by a different bench of the apex court.

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On January 5, a two-judge bench comprising Justices Aravind Kumar and N V Anjaria had refused bail to Khalid and Imam, while allowing them to file fresh bail applications after the examination of protected witnesses one year later.

In its order pronounced on Monday, Justice Bhuyan criticised several aspects of the January 5 judgment, including the restriction preventing the two appellants from seeking bail for one year.

He observed that the January 5 judgment did not properly apply the ruling in the K A Najeeb case, which recognised prolonged delay in trial as a valid ground for granting bail in cases under the Unlawful Activities (Prevention) Act (UAPA), overriding the statutory restrictions under Section 43D(5) of the Act.

“We have serious reservations on various aspects of the judgment in the Gulfisha Fatima case, including foreclosing the right of the two appellants to seek bail for a period of one year.

“The judgment in the Gulfisha Fatima case would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5), justified in extreme factual situations. It is this hollowing out of the import of the observations in the Najeeb case that concerns us,” the bench said.

The apex court said the oft-invoked phrase — “bail is the rule and jail is the exception” — is not merely an empty statutory slogan flowing from the Code of Criminal Procedure (CrPC).

“It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence, which is the cornerstone of any civilised society governed by the rule of law.

“Statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAPA is intended, but they cannot altogether invert the constitutional relationship between liberty and detention,” the bench observed.

The court further said that the statutory embargo under Section 43-D(5) of the UAPA, which imposes stringent bail restrictions, must remain subject to the guarantees under Articles 21 and 22 of the Constitution.

“Therefore, we have no manner of doubt in stating that even under the UAPA, ‘bail is the rule and jail is the exception’. Of course, in an appropriate case, bail can be denied having regard to the facts of that particular case,” the bench added.

The apex court also disapproved of the 2024 judgment in the Gurwinder Singh vs Union of India case for failing to properly apply the precedent laid down in the K A Najeeb case.

The court clarified that the Najeeb judgment is binding law and cannot be diluted, circumvented or disregarded by trial courts, high courts or even smaller benches of the Supreme Court.

“In our view, the decision in the Gurwinder case, insofar as it refuses to be bound by Najeeb, is difficult for us to follow as a precedent. It is clear that a judgment rendered by a bench of lesser strength is bound by the law declared by a bench of greater strength.

“Judicial discipline mandates that such binding precedent must either be followed or, in case of doubt, referred to a larger bench. A smaller bench cannot dilute, circumvent or disregard the ratio of a larger bench,” the court said.

Syed Iftikhar Andrabi had challenged an order of the High Court of Jammu and Kashmir and Ladakh dismissing his bail plea on the ground that cellphone records indicated he had been in contact with terror operatives across the border.

The NIA stated that on June 11, 2020, police intercepted a car belonging to Abdul Momin Peer at Kairo Bridge in Handwara. During the search, officials seized ₹20.01 lakh in cash and 2 kg of heroin, following which Peer was arrested.

Subsequently, based on his disclosure, police arrested Andrabi and Islam-Ul-Haq Peer.

The investigation revealed that the accused were allegedly involved in cross-border smuggling and supply of heroin in Jammu and Kashmir and other parts of the country after procuring it from associates in Pakistan, the chargesheet stated.

According to the chargesheet, Andrabi and Abdul Momin Peer had visited Pakistan several times during 2016-17 to meet operatives of terrorist organisations, including Lashkar-e-Taiba and Hizbul Mujahideen. The money generated from heroin sales was allegedly used to further the activities of Lashkar-e-Taiba.