Karnataka High Court: While hearing the instant appeal challenging the order of the Addl. City Civil & Session Judge (Special Court for NIA cases) denying bail to the accused, the Division Bench of Krishna S. Dixit* and Pradeep Singh Yerur, JJ., keeping in mind the sanctity of human rights as recognized by the Supreme Court in the light of constitutional guarantees and possible societal implications of the accused being released from confinement, were of view that cause of justice would be served more by keeping the accused in confinement. The Court observed that norms like “Bail is rule, Jail is exception” cannot be chanted like a mantra or slogan in every bail petition out of the contextual circumstance.
Background: On 11-08-2020, riots broke out in the K.G. Halli area of Bengaluru City; the miscreants had attacked the local police station and had set it on fire; there was extensive damage to the private & public property; the government & private vehicles were ransacked; members of the public were terrorized. The police had to resort to lathi charge and firing too to dispel the organized offenders. The incident with enormous infamy, came to be known as ‘K.G. Halli Riots’.
Criminal cases came to be registered against the miscreants huge in number, for the offences punishable under sections 143, 147, 148, 353, 332, 333, 436, 427 & 149 of Indian Penal Code, 1860 and under section 4 of the Prevention of Damage to Public Property Act, 1984. Other charging provisions namely Sections 15, 16, 18 & 20 of the Unlawful Activities (Prevention) Act, 1967 were added. Given the enormity of the riots, the investigations were handed over to the NIA. The NIA having investigated the offences and filed the charge sheet which inter alia stated about the involvement and role of the accused herein in the incident as he was part of the terrorist gang, which had a common intention and object in perpetrating the riots.
The accused applied for bail, but his applications were rejected again and again.
Contentions: counsel for the accused-appellant submitted that certain new material that was not available despite all diligent efforts, having come to hands. The counsel highlighted the longevity of the accused’s confinement and NIA’s undue interest in the matter as well as citing Justice Krishan Iyer’s famous dicta- “Bail is the rule, Jail is an exception.”
Per contra, the respondents argued that the offences alleged are grave and attack on a Police Station & the Police Personnel on duty is nothing short of attack on the Sovereignty of the country. The accused-appellant being an integral part of the terrorist gang, if allowed to exit from the jail, the public will lose faith in the criminal justice system; no witness would come forward to depose and members of civil society would not be able to walk on the street.
Court’s Assessment: Perusing the facts of the case and contentions raised by the party, the Court noted that the offences of which the accused-appellant has been charged, cannot be expressed without prefixing the superlatives to these ‘gruesome and heinous’ organized acts given the way they had been perpetrated.
The Court pointed out that it is not that every new material produced or every arguable change of circumstance would automatically entitle the accused to the grant of bail. It was pointed out that there is a specific finding on cogent material as to the inculpation of the accused.
Vis-à-vis the doctrine of presumption of innocence, the Court stated that the Trial Court after examining the material, recorded a specific finding as to prima facie complicity of the accused in the offences alleged against him. The Court noted that Section 43-D(5) of UAPA, 1967 incorporates a negative burden clause, therefore the Court was not sure as to whether the doctrine of innocence can be readily invoked in the instant case. “The most probable & undesirable consequences of releasing an under trial involved in the perpetration of such a horrendous incident of such a magnitude & infamy repels the invocation of said doctrine, in the given circumstances of the case”.
Regarding the dicta of “Bail is rule, Jail is exception”, the Court stated that, “We are living in different times; every daily newspaper will have some report or photograph about the terrorist acts. Legislative changes have been brought about to several penal statutes”. The Court further said that liberty of an individual is important; however, the safety of civil society is more important and that the interest of an individual cannot march over the collective interest of the society. “Almost all the norms in a legal system, be it civil or criminal, are relative; they are bound to the Society’s Calendar. With ceaseless run of Time, these norms undergo change in their texture & colour for retaining their relevance as a living law of the people”.
The Court stated that invoking the afore-stated dicta for the sole benefit of the accused involved in heinous crimes may cause a law-and-order issue. The Court also pointed out that the dicta would not help the accused as- “such a dicta has to remain miles away when the class of offences which the accused is ascribed of, arise under a special statute of great significance. Secondly, the Parliament in its accumulated wisdom has enacted the clauses in the 1967 Act thatseverely restrict the claim for grant of bail; thirdly, the statute also enacts a ‘negative burden’ clause, which places the onus on the shoulders of accused.”
The Court was of the opinion that in bail matters, the Court has to bear in mind not only the rights and liberties of the accused but also the threat to safety of the civil society. “People have to go to workplaces; tillers have to till the land and labourers to sweat in the soil. All this may be jeopardized, if accused against whom charge sheet has been filed by the Special Investigating Agency for grave offences, are let out”.
[Imran Ahmad v. NIA, 2023 SCC OnLine Kar 27, decided on 29-05-2023]
*Judgment delivered by Justice Krishna S. Dixit
Advocates who appeared in this case :
Appellant- Mohd. Tahir, Adv.;
Respondent: Prasanna Kumar P., Adv.
