Abhishek Jeet Chakrabarti, Mr. Akif Abidi and Mr. Kartik Venu, Advs. Singh, Mr v. THE STATE OF NCT OF DELHI

Judgment

1. These Criminal Appeals have been filed by the Appellants under Section 21 (4) of the National Investigation Agency Act, 2008, challenging the respective Orders passed by the learned Additional Sessions Judge (ASJ-03), Shahdara District, Karkadooma Courts, (Delhi) (hereinafter referred to as the „Trial Court‟), whereby the learned Trial Court dismissed the Bail Applications filed by the Appellants seeking grant of Regular Bail in connection with FIR No. 59/2020 dated 06.03.2020, originally registered under Sections 147, 148, 149, and 120B of the Indian Penal Code, 1860 (in short, „IPC‟), at the Police Station Crime Branch, Delhi. Thereafter, offences under Sections 109, 114, 124A, 153A, 186, 201, 212, 295, 302, 307, 341, 353, 395, 419, 420, 427, 435, 436, 452, 454, 468, 471, and 34 of the IPC; Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 (in short, „PDPP‟); Sections 25 and 26 of the Arms Act, 1959 (in short, „Arms Act‟); and Sections 13, 16, 17, and 18 of the Unlawful Activities (Prevention) Act 1967 (in short, „UA(P) Act‟) were added to the subject FIR. 2. As the present batch of Appeals arise out of similar set of facts, though outlining different alleged roles of the Appellants in the purported larger conspiracy, and involve an interwoven set of legal propositions, we deem it appropriate to adjudicate these appeals by way of this common Judgement. CRL.A. 184/2022 & CONNECTED MATTERS THE BRIEF FACTUAL MATRIX: DELHI RIOTS: -

3. The factual narrative in the present matter emanates from the case of the prosecution, being one of a deep-rooted criminal conspiracy allegedly hatched by several accused persons and individuals, including the present Appellants, to commit large-scale riots in the National Capital Territory of Delhi, in protest against the enactment of the Citizenship Amendment Act, 2019 („CAA‟) and the National Register of Citizens („NRC‟). These riots were allegedly carried out by inciting widespread communal violence on and around the 22nd, 23rd, and 24th of February, 2020, which resulted in the loss of 54 lives, including the death of a Senior Police Officer and an Intelligence Bureau Official, grievous injuries to several Police officers and members of the public, damage to more than 1,500 public and private properties, etc, apart from the other intangible harm caused to the Nation as a consequence. 4. As per the prosecution, the entire conspiracy of which the Appellants as well as other co-accused persons are alleged to be a part of, that ultimately led to the violent riots, can be categorized into the following phases, which also overlap with one another:  First Phase (December 2019): Initiation, formation, and inclusion of WhatsApp Groups such as Muslim Student of JNU (MSJ), Delhi Protest Support Group (DPSG), JMI Coordination Committee (JCC), Jamia Awareness Campaign Team (JACT), and Student of Jamia (SOJ); with an intent to create multiple 24x7 sit-in protests across Delhi. CRL.A. 184/2022 & CONNECTED MATTERS  Second Phase (December 2019-February 2020): Early meetings and strategic mobilization by indulging participation from Student bodies and individuals, who also coordinated amongst themselves; development of the protest sites; circulation of inciteful pamphlets in Muslim-dominated areas; delivery of inflammatory speeches in various parts in India; and instilling the misleading propaganda to the masses from the Muslim Community against the CAA and NRC. This phase is also alleged to have included riots in JMI, Shaheen Bagh, and North- East Delhi, resulting in injuries to Police Officers and numerous members of the public.  Third Phase (January 2020-February 2020): Escalation: This phase allegedly included holding of conspiratorial meetings, stockpiling of firearms, acid and petrol bombs, rods, stones, chilli powder, sticks, and other such items to be used in escalating the protest into riots, along with preparations for carrying out violence in the riots in a coordinated manner.  Fourth Phase (February 2020): Implementation: This phase involved holding of disruptive Chakka-Jaams aiming at disruption of essential supplies in Delhi, using aforementioned items for weapons and dislocation of the public CCTVs in the adjoining areas for further escalation of confrontations and physical altercations with law enforcement agencies. This phase is alleged to have culminated in the February 2020 riots. CRL.A. 184/2022 & CONNECTED MATTERS

5. The Prosecution has claimed that these four phases indicate that the incidents were no ordinary protests, but were rather premeditated and well- orchestrated riots, planned out by the masterminds on a mass scale, intended to have nationwide implications, and to undermine the secular fabric of the nation. The motive of the key conspirators was allegedly to propagate their ulterior agenda of inciting communal tensions under the facade of opposition to the CAA/NRC. 6. The aforementioned four phases shall be discussed in detail, while analyzing the role of each of the Appellants in the alleged large-scale / deep-rooted Conspiracy, in their respective Appeals. 7. Relevantly, the investigation in the present case ensued on

06.03.2020, when the Subject FIR was registered at the P.S. Crime Branch on the basis of a complaint lodged by a Sub-Inspector (S.I.) Arvind Kumar, who had received information through a secret informer that the Delhi Riots, which took place in February 2020, were the result of a pre-planned conspiracy. Further investigation in the matter led to include other offences under the IPC as well as UA(P) Act, as noted hereinbefore. 8. The Prosecution filed the First Chargesheet on 16.09.2020, arraying 15 accused persons. On 17.09.2020, the learned Trial Court took cognizance of the matter and issued process against those 15 charge- sheeted accused persons. 9. As the investigation was still underway, the prosecution later filed

the first Supplementary Chargesheet on 22.11.2020, arraying three additional accused persons. CRL.A. 184/2022 & CONNECTED MATTERS

10. The Tabular Chart below outlines the persons arrayed as accused in the Chargesheets filed by the Investigating Agency so far: CHARGESHEET NAME OF THE ACCUSED Abdul Khalid Saifi (A-1) Ishrat Jahan @ Pinki (A-2) Meeran Haider (A-3) Tahir Hussain (A-4) Gulfisha Khatoon @ Gul (A-5) Safoora Zargar (A-6) Shafa-Ur-Rehman (A-7) Asif Iqbal Tanha (A-8) Shadab Ahmad (A-9) Natasha Narwal (A-10) DevanganaKalita (A-11) Taslim Ahmad (A-12) Salim Malik @ Munna (A-13) Mohd. Salim Khan (A-14) Athar Khan (A-15) Faizan Khan (A-16) Sharjeel Imam (A-17) Umar Khalid (A-18) Main Chargesheet filed on 16.09.2020 FirstSupplementary Chargesheet filed on 22.11.2020 (Emphasis supplied on the present Appellants)

11. On 24.11.2020, the learned Trial Court took Cognizance of the Supplementary Chargesheets for the offences mentioned hereinbefore, except for those under Sections 124A, 153A, 109, and 120B of the IPC, on account of pending Sanction in respect of these offences. 12. The Second and Third Supplementary Chargesheets were filed on

23.02.2021 and 02.03.2022, respectively, to bring on record further evidence collected by the Investigation Agency and invoking further CRL.A. 184/2022 & CONNECTED MATTERS offences. Notably, the Prosecution also filed a Fourth Supplementary Chargesheet on 07.06.2023. 13. The Appellants had moved separate Bail Applications before the learned Trial Court, at different points in time, and some had also moved second Bail Applications, which were dismissed vide the respective Impugned Orders, leading to the filing of the present Appeals. DELAY AND LONG PERIOD OF INCARCERATION: -

14. Having noted the brief factual matrix, and before we delve into the aspect of Conspiracy for setting the stage for adjudication of the present appeals, we may, at this stage itself, note that the common argument raised and emphasized throughout these Criminal Appeals seeking Regular Bail, is on the point of delay in trial and the period of incarceration already undergone by the Appellants as undertrials. 15. Relevantly, it merits mention that the grant of bail is not a mechanical exercise, nor can it rest upon a superficial appraisal of prosecution‟s material or evidence. The criminal jurisprudence is firmly rooted on many pillars, inclusive of which is the fair investigation and a fair trial, more so, the constitutional values underlying personal liberty cannot be set at naught by keeping an accused incarcerated. The Courts have to remain alive to both the ends of spectrum, on one hand, safeguarding the liberty of an accused, while on the other, ensuring the right of the prosecution to establish its case. The assessment of grant or refusal of bail, therefore, is also guided by a judicious balance between CRL.A. 184/2022 & CONNECTED MATTERS these two considerations, so that the enforcement of criminal law is neither diluted nor diminished. Needless to say, it is an arduous task that rests upon the shoulders of the Court, to strike a balance between the two in the facts and circumstances of each of the case. 16. The learned counsels for the Appellants submitted that the undertrials have a right to a speedy trial, and any delay caused therein would violate the fundamental right to liberty of the accused persons as enshrined under Article 21 of the Constitution of India. It is contended that the Appellants have been languishing in custody for a long period since the date of their respective arrests. Moreso, it was submitted that, looking at the present pace of the proceedings before the learned Trial Court and the Prosecution‟s intention to examine 800-900 witnesses, there is no likelihood of the conclusion of the trial in the foreseeable future. Thus, continued detention of the Appellants in the judicial custody, merely on the ground that the offences for which the accused persons have been booked under are serious in nature, would not be justified. 17. The learned Senior Counsel and other learned counsels for the Appellants had collectively also placed reliance on the following decisions in support of their contentions:  Union of India v. K.A. Najeeb, (2021) 3 SCC 713  Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, (2024) 8 SCC 293  Ashim Alias Asim Kumar Haranath Bhattacharya Alias Asim Bhattacharya Alias Aseem Kumar Bhattacharya v. National Investigation Agency, (2022) 1 SCC 695.  Javed Gulam Nabi Shaikh v. State of Maharashtra & Anr., (2024) 9 SCC

813. CRL.A. 184/2022 & CONNECTED MATTERS  Mukesh Salam v. State of Chattisgarh & Anr., SLP (Crl.) No. 3655/2024, Date of Decision 30.08.2024.  Manish Sisodia v. Directorate of Enforcement, (2024) SCC OnLine SC

1920.  Vijay Nair v. Directorate of Enforcement, SLP(Criminal) Diary No. 22317/2024, dated 02.09.2024.  Javed Ali @ Javed v. National Investigation Agency, 2024:DHC:8797-DB.  In re: Manirul Islam @ Doctor C.R.M. (DB) No. 667/2023, Order dated

20.03.2023 (Calcutta High Court).  Padam Singhee v. Directorate of Enforcement, Criminal Misc. Bail Application No. 32236/2024, dated 14.11.2024.  Jalauddin Khan v. Union of India, Crl.A. 2787/2024 dated 03.07.2024.  Prem Prakash v. Union of India, SLP (Crl.) No.5416/2024 decided on

28.08.2024.  V. Senthil Balaji v. Deputy Director, Directorate of Enforcement 2024 INSC 739.  SaumyaChaurasia v. Directorate of Enforcement, SLP(Crl.) No. 12492/2024 dated 25.09.2024.  Padam Chand Jain v. Enforcement Directorate, SLP(Crl.) No. 17476/2024, dated 16.01.2025.  Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra BhimrajBijjaya, (1990) 4 SCC 76.  Mohd. Hakim v. State (NCT of Delhi), 2021 SCC OnLine Del 4623.  A. Ramachandran @ Raman v. CBI & Anr., 2015 SCC OnLine Ker 17832.  Tapas Kumar Palit v. State of Chhatisgarh, Crl.A. No. 738/2025; Supreme Court.  NIA vs. Areeb Ejaz Majeed, 2021 SCC OnLine Bom 239.  Thwaha Fasal v. Union of India (2021) SCC OnLine SC 1000  Sidhique Kappan v. State of U.P. (2022) SCC OnLine SC 1195  NIA vs Zahoor Ahmad Shah Watali, 2019 5 SCC 1  Gurwinder Singh vs State of Punjab and Another (2024) 5 SCC 403  Shaheen Welfare Assn.v.Union of India, (1996) 2 SCC 616  Rona Jacob Wilson vs the State of Maharashtra, Crl.A. No. 848 of 2024; High Court of Judicature at Bombay.

18. The learned Solicitor General, Mr. Tushar Mehta, the learned Additional Solicitor General, Mr. Chetan Sharma, and Mr. Amit Prasad, learned Special Public Prosecutor („SPP‟), vehemently contended that CRL.A. 184/2022 & CONNECTED MATTERS although a long period of incarceration may, in certain circumstances, be a ground entitling an accused to the grant of bail, it is by no means a universally applicable rule. They submitted that the grant of bail must necessarily depend on the facts and circumstances of each case. 19. In this regard, we may note the position of law as laid in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, wherein the Supreme Court held that the power to grant bail to an accused is a discretionary relief available to the Courts, and that no hard and fast rule could be prescribed governing the exercise of the such discretion under Section 437 and 439 of the Code of Criminal Procedure, 1973 (in short, „Cr.PC‟). It was observed as under: “19. In Gurbaksh Singh Sibbia v.State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565: 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586-88, paras 27-30) s observed, while dealing with (cid:179)(cid:21)(cid:26)(cid:17)(cid:171)(cid:171)(cid:171)(cid:171)(cid:3) (cid:76) (cid:87)(cid:3) (cid:90)(cid:68) Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be In Emperorv. H.L. exercised Hutchinson [Emperorv.H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 it was said that it was very unwise to make an attempt to lay down any judiciously. CRL.A. 184/2022 & CONNECTED MATTERS the discretion of particular rules which will bind the High Court, having regard to the fact that the legislature itself the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled opportunity to look after his own case. A innocent person must have his presumably freedom to enable him to establish his innocence. ***** the various sections freedom and

28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhuluv. State [Gudikanti Narasimhuluv. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that : (SCC p. 242, para 1) (cid:181)(cid:20)(cid:17)(cid:3) (cid:171)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) (cid:76) (cid:86)(cid:86)(cid:88)(cid:72)(cid:3) (cid:62)(cid:82)(cid:73)(cid:3) (cid:69)(cid:68)(cid:76) (cid:79)(cid:64)(cid:3) (cid:76) (cid:86)(cid:3) (cid:82)(cid:81)(cid:72)(cid:3) (cid:82)(cid:73)(cid:3) (cid:79)(cid:76) (cid:69)(cid:72)(cid:85)(cid:87)(cid:92)(cid:15)(cid:3) (cid:77) (cid:88)(cid:86)(cid:87)(cid:76) (cid:70)(cid:72)(cid:15)(cid:3) public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial (cid:83)(cid:85)(cid:82)(cid:70)(cid:72)(cid:86)(cid:86)(cid:17)(cid:3) (cid:171)(cid:3) (cid:36)(cid:73)(cid:87)(cid:72)(cid:85)(cid:3) (cid:68)(cid:79)(cid:79)(cid:15)(cid:3) (cid:83)(cid:72)(cid:85)(cid:86)(cid:82)(cid:81)(cid:68)(cid:79)(cid:3) (cid:79)(cid:76) (cid:69)(cid:72)(cid:85)(cid:87)(cid:92)(cid:3) (cid:82)(cid:73)(cid:3) (cid:68)(cid:81)(cid:3) accused or convict is fundamental, suffering (cid:79)(cid:68)(cid:90)(cid:73)(cid:88)(cid:79)(cid:3) (cid:72)(cid:70)(cid:79)(cid:76) (cid:83)(cid:86)(cid:72)(cid:3) (cid:82)(cid:81)(cid:79)(cid:92)(cid:3) (cid:76) (cid:81)(cid:3) (cid:87)(cid:72)(cid:85)(cid:80)(cid:86)(cid:3) (cid:82)(cid:73)(cid:3) (cid:179)(cid:83)(cid:85)(cid:82)(cid:70)(cid:72)(cid:71)(cid:88)(cid:85)(cid:72)(cid:3) (cid:72)(cid:86)(cid:87)(cid:68)(cid:69)(cid:79)(cid:76) (cid:86)(cid:75) (cid:72)(cid:71)(cid:3) (cid:69)(cid:92)(cid:3) (cid:79)(cid:68)(cid:90)(cid:180)(cid:17)(cid:3) (cid:55)(cid:75) (cid:72)(cid:3) (cid:79)(cid:68)(cid:86)(cid:87)(cid:3) (cid:73)(cid:82)(cid:88)(cid:85)(cid:3) (cid:90)(cid:82)(cid:85)(cid:71)(cid:86)(cid:3) (cid:82)(cid:73)(cid:3) Articl(cid:72)(cid:3) (cid:21)(cid:20)(cid:3) (cid:68)(cid:85)(cid:72)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) (cid:79)(cid:76) (cid:73)(cid:72)(cid:3) (cid:82)(cid:73)(cid:3) (cid:87)(cid:75) (cid:68)(cid:87)(cid:3) (cid:75) (cid:88)(cid:80)(cid:68)(cid:81)(cid:3) (cid:85)(cid:76) (cid:74)(cid:75) (cid:87)(cid:17)(cid:182) In Gurcharan Singh v. State

29. (UT of Delhi)[Gurcharan Singhv.State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that : (SCC p. 129, para 29) There cannot be an inexorable formula (cid:181)(cid:21)(cid:28)(cid:17)(cid:3) (cid:171)(cid:3) in the matter of granting bail. The facts and circumstances of each case will govern the CRL.A. 184/2022 & CONNECTED MATTERS exercise of judicial discretion in granting or cancelling bail.(cid:182) 30. In AMERICAN JURISPRUDENCE (2nd, Vol. 8, p. 806, para 39), it is stated: (cid:181)(cid:58)(cid:75) (cid:72)(cid:85)(cid:72)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) (cid:74)(cid:85)(cid:68)(cid:81)(cid:87)(cid:76) (cid:81)(cid:74)(cid:3) (cid:82)(cid:73)(cid:3) (cid:69)(cid:68)(cid:76) (cid:79)(cid:3) (cid:79)(cid:76) (cid:72)(cid:86)(cid:3) (cid:90)(cid:76) (cid:87)(cid:75) discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission judgment of the court, the primary inquiry is whether a recognizance or bond would effect (cid:87)(cid:75) (cid:68)(cid:87)(cid:3) (cid:72)(cid:81)(cid:71)(cid:17)(cid:182) jurisdiction and (cid:76) (cid:81)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail(cid:17)(cid:180) (Emphasis supplied)

20. It is trite law that „grant of bail is the rule and refusal is the exception‟, however, the exercise of such discretion will depend on the facts and circumstances of each case, and no single circumstance alone can serve as a universal yardstick to grant or refuse bail to an individual. 21. When it comes to the Special Statutes, such as the UA(P) Act, the Prevention of Money Laundering Act, 2002 (in short, „PMLA‟), and the Maharashtra Control of Organised Crime Act, 1999 (in short, „MCOCA‟), etc., the Courts, while adjudicating the bail applications for offences under such Special Statutes, are required to take into consideration the specific provisions governing bail thereunder. Relevantly, we may note from the decision in Union of India v. Rattan Mallik, (2009) 2 SCC 624, as under: CRL.A. 184/2022 & CONNECTED MATTERS (cid:179)9. The broad principles which should weigh with the court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for the sake of brevity, we do not propose to reiterate the same. However, when a prosecution/conviction is for offence(s) under a special statute and that statute contains specific for dealing with matters arising provisions thereunder, including an application for grant of bail, these provisions cannot be ignored while (cid:71)(cid:72)(cid:68)(cid:79)(cid:76) (cid:81)(cid:74)(cid:3) (cid:90)(cid:76) (cid:87)(cid:75) (cid:3) (cid:86)(cid:88)(cid:70)(cid:75) (cid:3) (cid:68)(cid:81)(cid:3) (cid:68)(cid:83)(cid:83)(cid:79)(cid:76) (cid:70)(cid:68)(cid:87)(cid:76) (cid:82)(cid:81)(cid:17)(cid:180)

22. Further, the Supreme Court in Gautam Kundu v. Directorate of Enforcement (Prevention of Money-Laundering Act), (2015) 16 SCC 1, observed as below: (cid:179)28. Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of PMLA are binding on the High Court while considering the application for bail the Code of Criminal under Section 439 of (cid:51)(cid:85)(cid:82)(cid:70)(cid:72)(cid:71)(cid:88)(cid:85)(cid:72)(cid:17)(cid:171)(cid:171)(cid:17)(cid:17)(cid:51)(cid:48)(cid:47)(cid:36)(cid:3) (cid:76) (cid:86)(cid:3) (cid:68)(cid:3) (cid:86)(cid:83)(cid:72)(cid:70)(cid:76) (cid:68)(cid:79)(cid:3) (cid:86)(cid:87)(cid:68)(cid:87)(cid:88)(cid:87)(cid:72)(cid:3) (cid:72)(cid:81)(cid:68)(cid:70)(cid:87)(cid:72)(cid:71)(cid:3) by Parliament for dealing with money-laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict.(cid:180) (Emphasis supplied) BAR UNDER SECTION 43D OF THE UA(P) ACT: -

23. Before we discuss this contention further, it would be appropriate to also note the statutory embargo placed upon the Courts under Section 43D of the UA(P) Act. The relevant provisions thereof are reproduced below: (cid:179)43D. Modified application of certain provisions of CRL.A. 184/2022 & CONNECTED MATTERS the Code xxxxxxxxxxxx (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in subsection (5) is in addition to the restrictions under the Code or any other law for the time being in force (cid:82)(cid:81)(cid:3) (cid:74)(cid:85)(cid:68)(cid:81)(cid:87)(cid:76) (cid:81)(cid:74)(cid:3) (cid:82)(cid:73)(cid:3) (cid:69)(cid:68)(cid:76) (cid:79)(cid:17)(cid:180)(cid:3)

24. From a reading of the above, it is clear that the Courts‟ discretion to grant bail is circumscribed by virtue of Section 43D(5) of the UA (P) Act. The proviso itself states that the accused person shall “not” be released on bail if the Court, upon perusal of the case diary or the final report submitted by the Investigation Agency, is of the opinion that there are reasonable grounds to believe the accusations against the accused are prima facie true. 25. Relevantly, the Supreme Court in the case of Gurwinder Singh (supra), had encapsulated the guidelines for adjudicating bail applications under the UA(P) Act, as laid down by it in Zahoor Ahmad Shah Watali, (supra), in the following words: “Test for Rej ecti on of Bai l : Gui deli nes as lai d down by Supreme Court in Watali's Case 23. In the previous section, based on a textual reading, we have discussed the broad inquiry which Courts seized of bail applications under Section CRL.A. 184/2022 & CONNECTED MATTERS 43D(5) UAP Act r/w Section 439 CrPC must indulge in. Setting out the framework of the law seems rather easy, yet the application of it, presents its own complexities. For greater clarity in the application of the test set out above, it would be helpful to seek guidance from binding precedents. In this regard, we need to look no further than Watali's case which has laid down elaborate guidelines on the approach that Courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of paragraphs 23 to 29 and 32, the following 8-point propositions emerge and they are summarised as follows: [para 23] : On the (cid:135)(cid:3)Meani ng of „Pri ma faci e true‟ face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. (cid:135)(cid:3)Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and Post-Charges Compared [para 23] : Once charges are framed, it would be safe to assume that a very strong suspicion was founded the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required the Court whilst formed by considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case. (cid:135)Reasoning, necessary but no detailed evaluation of evidence [para 24] : The exercise to be undertaken by the Court at this stage(cid:178)of giving the materials before to be CRL.A. 184/2022 & CONNECTED MATTERS reasons for grant or non-grant of bail(cid:178)is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. (cid:135)(cid:3)Record a finding on broad probabilities, not based on proof beyond doubt (cid:62)(cid:83)(cid:68)(cid:85)(cid:68)(cid:3) (cid:21)(cid:23)(cid:64)(cid:29)(cid:179)(cid:55)(cid:75) (cid:72)(cid:3) (cid:38)(cid:82)(cid:88)(cid:85)(cid:87)(cid:3) is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or (cid:82)(cid:87)(cid:75) (cid:72)(cid:85)(cid:90)(cid:76) (cid:86)(cid:72)(cid:17)(cid:180)(cid:3) (cid:135)(cid:3)Duration of the limitation under Section 43D(5) [para 26] : The special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. (cid:135)(cid:3)Material on record must be analysed as a [para 27] : The „wh ole‟; no pi ecemeal analysi s totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. •Contents of documents to be presumed as true [para 27] : The Court must look at the contents of the document and take such document into account as it is. (cid:135)(cid:3)Admissibility of documents relied upon by Prosecution cannot be questioned [para 27]. The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by (cid:82)(cid:87)(cid:75) (cid:72)(cid:85)(cid:3) (cid:72)(cid:89)(cid:76) (cid:71)(cid:72)(cid:81)(cid:70)(cid:72)(cid:171)(cid:171)(cid:17)(cid:44)(cid:81)(cid:3) (cid:68)(cid:81)(cid:92)(cid:3) (cid:70)(cid:68)(cid:86)(cid:72)(cid:15)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) (cid:84)(cid:88)(cid:72)(cid:86)(cid:87)(cid:76) (cid:82)(cid:81)(cid:3) (cid:82)(cid:73)(cid:3) discarding the document at this stage, on the ground of being is not (cid:83)(cid:72)(cid:85)(cid:80)(cid:76) (cid:86)(cid:86)(cid:76) (cid:69)(cid:79)(cid:72)(cid:17)(cid:180) in evidence, inadmissible CRL.A. 184/2022 & CONNECTED MATTERS

26. A review petition was also filed against Gurwinder (supra), being Review Petition (CRL.) NO.299/2024, and the Supreme Court, while dismissing the same vide its Order dated 16.07.2024, observed as under: “1) This Review Petition has been filed seeking to review Judgment dated 07.02.2024 both on facts and law. As facts have been duly taken note of, we do not find any reason to interfere with the Judgment passed. On the question of law, reliance has been placed on the decisions of this Court in KA Najeeb v. Union of India, (2021) 3 SCC 713 and Vernon v. State of Maharashtra, (2023) SCC OnLine SC 885 and our decision is based on the facts and circumstances unfolded. 2) Accordingly, (cid:71)(cid:76) (cid:86)(cid:80)(cid:76) (cid:86)(cid:86)(cid:72)(cid:71)(cid:17)(cid:180) the Review Petition stands (Emphasis Supplied)

27. Thus, the position of law is no longer res integra as to the guidelines that the Courts should generally adhere to while deciding the grant or refusal of bail to an accused booked for offences under the UA (P) Act. The Court has to examine whether there are reasonable grounds to believe the allegations against an accused to be prima facie true, considering the material collected by the investigating agency presented alongwith the final report. The admissibility and credibility of the evidence cannot be examined at the stage of bail, and such material must be presumed to be true. 28. However, we may also remind ourselves that the Courts are expected to make a „surface analysis‟ of the evidence by analyzing the same as a whole and record a finding on broad probabilities, without there being a piecemeal analysis or dissection of evidence or circumstance in isolation as CRL.A. 184/2022 & CONNECTED MATTERS well as satisfy itself of the probative value of the evidence, not being weak. However, in the present appeals, both the sides have gone into scrutinizing the evidence in minute detail, by adverting to it piece by piece. Further, the (cid:181)(cid:87)(cid:90)(cid:76) (cid:81)-(cid:83)(cid:85)(cid:82)(cid:81)(cid:74)(cid:3) (cid:87)(cid:72)(cid:86)(cid:87)(cid:182)(cid:3) is also required to be satisfied by the accused, demonstrating that he does not pose a flight risk and has no intention of tampering with evidence or influencing any of the witnesses connected to the case. 29. Proceeding further, we would like to note that there has been much deliberation on the point of delay in trial and the period of custody suffered by an accused awaiting trial, even in offences under the Special Statutes. It has been held by the Supreme Court that though the rigorous provisions laid down by such Special Statutes place an embargo on the Courts, ordinarily leading to the rejection of bail to an accused, the same does not denude the “discretion” of the Constitutional Courts to grant bail. It would be apposite to refer to the various decisions of the Supreme Court, as well as this Court in this regard. 30. The Supreme Court, in the case of Union of India v. K.A. Najeeb (supra), while referring to the provision under Section 43-D of the UA(P) Act, observed as under: (cid:179)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 CRL.A. 184/2022 & CONNECTED MATTERS 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 (cid:70)(cid:82)(cid:81)(cid:86)(cid:87)(cid:76) (cid:87)(cid:88)(cid:87)(cid:76) (cid:82)(cid:81)(cid:68)(cid:79)(cid:3) (cid:85)(cid:76) (cid:74)(cid:75) (cid:87)(cid:3) (cid:87)(cid:82)(cid:3) (cid:86)(cid:83)(cid:72)(cid:72)(cid:71)(cid:92)(cid:3) (cid:87)(cid:85)(cid:76) (cid:68)(cid:79)(cid:17)(cid:180)

31. The Supreme Court in Sheikh Javed Iqbal (supra), while referring to Javed Gulam Nabi Shaikh (supra), Shaheen Welfare Assn. (supra) and several of its other decisions, observed as under: (cid:179)24. It is trite law that an accused is entitled to a speedy trial. This Court in a catena of judgments has held that an accused or an undertrial has a fundamental right to speedy trial which is traceable to Article 21 of the Constitution of India. If the alleged offence is a serious one, it is all the more necessary for the prosecution to ensure that the trial is concluded expeditiously. When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused-undertrial on the ground that the charges are very serious. Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude.

28. Similarly, in Shaheen Welfare Assn.v.Union of India[Shaheen Welfare Assn.v.Union of India, (1996) 2 SCC 616 : 1996 SCC (Cri) 366] , this Court was considering a public interest litigation wherein certain reliefs were sought for undertrial prisoners charged with offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (cid:11)(cid:179)(cid:87)(cid:75) (cid:72)(cid:3) (cid:55)(cid:36)(cid:39)(cid:36)(cid:3) (cid:36)(cid:70)(cid:87)(cid:180)(cid:12)(cid:3) (cid:79)(cid:68)(cid:81)(cid:74)(cid:88)(cid:76) (cid:86)(cid:75) considerable periods of time. This Court observed CRL.A. 184/2022 & CONNECTED MATTERS (cid:76) (cid:81)(cid:74)(cid:3) (cid:76) (cid:81)(cid:3) (cid:77) (cid:68)(cid:76) (cid:79)(cid:3) (cid:73)(cid:82)(cid:85)(cid:3) the competing that while liberty of a citizen must be zealously safeguarded by the courts but, at the same time, in the context of stringent laws like the TADA Act, the interest of the victims and the collective interest of the community should also not be lost sight of. While this Court balancing observed the ultimate deprivation of liberty of an undertrial can only be on account of the accused-undertrial being found guilty of the offences for which he is charged and is being tried. If such a finding is not likely to be arrived at within a reasonable time, some relief(s) becomes necessary. Therefore, a pragmatic approach is required.(cid:180) justification interest,

32. This Court also had an occasion to examine the issue of striking a balance between a long period of incarceration and the delay in trial vis-à- vis the right of an accused to a speedy trial and liberty. This Court had scrutinized several judgments of the Supreme Court as well as this Court, and after analyzing the same, held in Naval Kishore Kapoor v. NIA, 2025 SCC OnLine Del 1561, as under: (cid:179)71. In this background, the position of law stands re-affirmed that an accused is entitled to the speedy trial as he has a Fundamental Right to the same as well as right to life and personal liberty enshrined in Article 21 of the Constitution of India and the Court is not deprived of the power to grant bail even in special enactments. If the alleged offence is a serious one, it is all the more necessary that the Prosecution should ensure that the trial is expedited and concluded at the earliest. Also, when a trial is prolonged, it is not open to the Prosecution to oppose the bail application. However, in particular facts of a given case, the Constitutional Court may also decline to grant bail. 72. The position is also settled that the person accused of offences under UA(P) Act shall not be CRL.A. 184/2022 & CONNECTED MATTERS released on bail if it appears that there are reasonable grounds to believe that the allegations against an accused are prima true. Specifically, in cases where the Charges have already been framed, the rigours are stricter. As far as the twin prong test is concerned, the first prong pertains to whether the test for rejection of bail are sufficient and satisfied. The other prong being the satisfaction of the triple test, on the factors such as flight risk, influencing of witness and tampering of evidence.(cid:180)

33. From a perusal of the aforementioned extracts, it emerges that the Constitutional Courts are well within their powers to grant bail to an undertrial who has suffered a long period of incarceration pending trial, thereby, setting him at liberty. The Courts are also to secure the right to a speedy trial of an accused, flowing from Article 21 of the Constitution of India. However, the grant of bail on the sole ground of long incarceration and delay in trial is not a universally applicable rule in all the cases. The discretion to grant or deny bail vests with the Constitutional Court, depending upon the peculiar facts and circumstances of each of the case. The Supreme Court in Sheikh Javed Iqbal (supra), also noted that (cid:179)(cid:76) (cid:81)(cid:3) (cid:87)(cid:75) (cid:72)(cid:3) given facts of a particular case, a constitutional court may decline to grant bail(cid:180). Further, the interest and safety of the society at large, apart from the victims and their families, is also a factor to be taken into consideration by the Courts while adjudicating bail applications. CONSPIRACY- THE LEGAL POSITION: -

34. The crux of the arguments raised on behalf of the learned Senior counsels and counsels for the Appellants is that none of the Appellants CRL.A. 184/2022 & CONNECTED MATTERS were part of the conspiracy as alleged by the prosecution, and their role was limited to only being a part of a peaceful protest to voice their resentment against the CAA/NRC, to carry out the protests, to involve members of the public, and that for the same, they may have participated in meetings and delivered speeches. It was contended that since a large number of the public had gathered, perhaps out of curiosity, to be a part of the protests, it could not be concluded that the appellants had conspired to carry out unlawful or illegal activities. 35. It was further submitted that due to the large public gathering and subsequent police action to control the crowd, spontaneous riots erupted in which the appellants had no role to play. They have jointly submitted that the prosecution has no evidence to establish that the Appellants had conspired to incite riots so as to cause violence, damage public property, or create fear amongst the masses. It was submitted that the peaceful protests, unfortunately, turned violent, which was never the intent of the Appellants. 36. Mr. Tushar Mehta, the learned Solicitor General raised strong objection to the aforesaid submissions, by contending that these were not ordinary riots, rather, they were well-orchestrated, and strategically planned and devised to coincide with the State visit of the President of the USA. He further submitted that it was the intention of the Appellants- Sharjeel Imam and Umar Khalid, to globally defame the Nation and to divide the Country at its heart on religious lines. He vociferously contended that a movement of students does not start with the creation of a communal group, which was part of the larger conspiracy. Therefore, this matter could CRL.A. 184/2022 & CONNECTED MATTERS not be treated on the same parameters as a normal riot that may have suddenly erupted from a peaceful protest and turned ugly. 37. It was also contended by Mr. Tushar Mehta that each of the conspirators had played a vital role in the planning, strategizing, and execution of the criminal conspiracy, all under the guise of protest against the CAA/NRC. The masterminds/top conspirators, he submitted, disseminated their messages through various speeches, pamphlets, WhatsApp Groups, etc., and their instructions were carried out by the foot soldiers. He contended that keeping in view the large-scale violence that was sought to be undertaken, and which eventually took place in late February of 2020, resulting in the loss of 53 lives, causing injuries to numerous members of the public, Police Officers and causing damage to the public properties, the Appellants are not entitled to bail. 38. The learned Senior Counsels and Counsels for the parties have collectively relied upon the following decisions: