New Delhi | Underlining that “bail is the rule and jail is the exception” is not merely an empty statutory slogan, the Supreme Court on Monday questioned its January 5 judgment denying bail to activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case.
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 NIA, said that it has “serious reservations” on the reasoning adopted by a different bench of the top court.
On January 5, a two-judge bench comprising Justices Aravind Kumar and N V Anjaria refused bail to Khalid and Imam and said they can file fresh bail applications following the examination of protected witnesses after one year.
In its order pronounced on Monday, Justice Bhuyan criticised various aspects of the January 5 judgment, including foreclosing the right of the two appellants to seek bail for a period of one year.
He said that the January 5 judgement did not properly follow the judgment in the K A Najeeb case, which recognised long delay in trial as a ground for bail in cases under the Unlawful Activities (Prevention) Act (UAPA) and can override the statutory restrictions on bail 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 we are concerned with,” the bench said.
The apex court said that the often invoked phrase – "bail is the rule and jail is the exception" – is not merely an empty statutory slogan flowing from the 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 UAP Act is meant, but those cannot altogether invert the constitutional relationship between liberty and detention," the bench said.
The top court said that the statutory embargo of Section 43-D(5) of the UAPA, which outlines stringent bail restrictions, must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution.
"Therefore, we have no manner of doubt in stating that even under the UAP Act, ‘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 said.
It also disapproved the judgment of the two-judge bench delivered in 2024 in the Gurwinder Singh vs Union of India case for not applying the judgement passed in the K A Najeeb case.
The apex court made it clear that its judgement in the Najeeb case is a binding law that cannot be diluted, circumvented or disregarded by trial courts, high courts or even by benches of a lower strength of the top court.
The Najeeb case is a landmark Supreme Court ruling delivered in 2021 regarding bail under the UAPA.
“In our view, the decision in the Gurwinder case, inasmuch as it refuses to be bound by Najeeb, is difficult to be followed by us as a matter of precedent. It is plain 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, be referred to a larger bench. A smaller bench cannot dilute, circumvent, or disregard the ratio of a larger bench," the top court said.
Syed Iftikhar Andrabi had challenged an order passed by the High Court of Jammu and Kashmir and Ladakh, which dismissed his bail plea, saying the scrutiny of cellphone records indicated that he had been in touch with terror operatives across the border.
Narrating the sequence of events leading to the apprehension of the accused, the NIA had said that on June 11, 2020, police intercepted a car belonging to Abdul Momin Peer at Kairo Bridge, Handwara. During a search, Rs 20.01 lakh in cash and 2 kg of heroin were seized, and Peer was arrested.
Later, on his disclosure, the police arrested Andrabi and Islam-Ul-Haq Peer.
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 the same from their associates in Pakistan, the chargesheet said.
Andrabi and Abdul Momin Peer had visited Pakistan several times during 2016-17 to meet the operatives of terrorist organisations, including Lashkar-e-Taiba and Hizbul Mujahideen, it said, adding that the amount generated from the sale of heroin was used by the accused to further the terrorist activities of Lashkar-e-Taiba.
