Case: ASHIM @ ASIM KUMAR HARANATH BHATTACHARYA @ ASIM HARINATH BHATTACHARYA @ ASEEM KUMAR BHATTACHARYA Vs. NATIONAL INVESTIGATION AGENCY

as Act 2008) mandates 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 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 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 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 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 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. 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 justice is a threat to public confidence in the administration of justice. 14. The three-Judge Bench of this Court in Union of India Vs. 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 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 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 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. 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 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, 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. 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 the likelihood period within which the trial can be expected to be finally concluded. That apart, the appellant is 74 years of age.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 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 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 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 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.14. The three-Judge Bench of this Court in Union of India Vs. 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 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 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 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.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 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, 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, 2008.17. 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 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 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.