Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Bombay High Court: In a bail application filed by the Delhi University professor Hany Babu, who was arrested in 2018 for his alleged involvement in the Bhima Koregaon violence case, a Division bench of A.S. Gadkari* and R.R. Bhonsale, JJ., allowed the application and granted bail.
In the instant matter, the appellant, accused No. 12, is faceing prosecution for offences under the Penal Code, 1860 (IPC) and the Unlawful Activities (Prevention) Act, 1967 (UAPA). The appellant has been incarcerated since 14-04-2020, amounting to more than 5 years and 7 months of pre-trial detention.
The appellant filed bail application under Section 439 of the CrPC, but the same was rejected by the Special NIA Court. A coordinate bench had earlier dismissed his appeal in 2022, and the subsequent SLP was not pressed. After receiving liberty from the Supreme Court to pursue remedies before the High Court or trial court, the appellant filed the present appeal under Section 21(4) of the National Investigation Agency Act, 2008 challenging Special NIA Court’s order dated 14-02-2022.The NIA initially raised preliminary objections regarding maintainability, but later consented to a hearing on merits.
The appellant contended that his discharge application has remained pending for nearly three years, and charges have not yet been framed. It was emphasised that “the trial of the present case will take substantially long period and may be a decade to complete.” It was submitted that several co-accused, were already granted bail on the ground of prolonged incarceration. In all, more than nine co-accused have obtained bail either from the High Court or Supreme Court.
The Court referred to in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, where the Supreme Court stated that “statutory restrictions like Section 43-D(5) of the UAPA per se do not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution.” The Court noted that when a trial cannot be completed in reasonable time and incarceration becomes excessive, courts are obligated to enlarge the accused on bail.
“Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.”
The Court referred to Gurwinder Singh v. State of Punjab, 2024 SCC OnLine SC 109, Supreme Court held that “a constitutional court cannot be restrained from granting bail… if it finds that the right of the accused-undertrial under Article 21 has been infringed.” The Court asserted that delay coupled with long incarceration engages the protection of Article 21 even under stringent statutes like UAPA.
“The prolonged incarceration and unlikelihood of the trial being completed in reasonable time or near future, necessitates a consequential release of the under trial on Bail.”
The Court noted that since co-accused similarly situated were granted bail predominantly due to prolonged incarceration, parity strongly favored the appellant. The Court noted that the appellant had undergone over 5 years and 7 months of incarceration without charges being framed. The Court further noted that given the size of the record, number of witnesses, and pendency of discharge applications, completion of trial in the near future deemed unlikely.
The Court set aside the order dated 14-02-2022 and granted bail to the appellant subject to conditions. The Court rejected the NIA’s request to stay the operation of the bail order, and stated that “as of today, the Appellant is in pretrial incarceration for more than 5 years and 7 months.”
[Hany Babu v. National Investigation Agency, CRIMINAL APPEAL (ST) NO. 12301 OF 2024, Decided on 04-11-2025]
*Judgment by Justice A.S. Gadkari
Advocates who appeared in this case:
Dr. Yug Mohit Chaudhry with Mr. Anush Shetty, Counsel for the Appellant
Mr.Anil C. Singh, Additional Solicitor General of India a/w Mr.Chintan Shah, Mr.Sandeep Sadawarte, Mr.Adarsh Vyas, Ms.Rma Gupta, Mr.Krishnakant Deshmukh and Mr.Rajdatt Nagre, Counsel for the Respondent No. 1/NIA
Mr.Ajay Patil, A.P.P., Counsel for the Respondent No. 2/State
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