Prosecution's Failure To Produce Witnesses 'Indirectly' Helping Accused: Allahabad High Court Grants Bail In PFI 'Terror Plot' Case
The Allahabad High Court on Monday granted bail to two accused booked under the Unlawful Activities (Prevention) Act, 1967 (UAPA) in a case alleging a conspiracy to attack Hindu religious organisations and sensitive places in Uttar Pradesh, observing that the trial had made "very poor" progress despite repeated directions for its expeditious conclusion.
A bench of Justice Rajesh Singh Chauhan and Justice Ram Manohar Narayan Mishra noted that the appellants had been in jail since February 17, 2021, but till now, only 5 of the 18 prosecution witnesses had been examined.
Taking exception to the prosecution's failure to produce its witnesses, the Court observed that such failure was "nothing but to extend the help, indirectly, for the accused persons" despite the statutory restriction on grant of bail under Section 43-D(5) of the UAPA.
The order was passed exactly a week after the High Court expressed its surprise and questioned the lack of progress in the trial of 2 accused arrested in 2021 in an alleged PFI terror plot case.
Case in brief
The accused [Ansad Badruddin and Firoz Khan] are facing charges under Sections 120-B and 121-A IPC, Sections 13, 16, 18 and 20 of the UAPA, Sections 3, 4 and 5 of the Explosive Substances Act. This was their third bail plea since their arrest.
According to the prosecution's case, the appellants were arrested on February 16, 2021, and various incriminating articles were allegedly recovered from them.
From Ansad Badruddin, the recovery included a .32 bore pistol with six live cartridges, nine rods of high-quality explosives and two explosive devices with electric battery detonators, besides mobile phones, diaries, pen drives and other articles.
From Firoz, the prosecution alleged recovery of seven rods of high-quality explosives and a bundle of red-coloured DP wire, besides other articles.
The prosecution had alleged that members of the Popular Front of India (PFI) were planning to meet at Lucknow's Kukrail Picnic Spot to commit attacks and create fear and terror in society. It further alleged that the explosives were intended to be used to attack senior leaders of Hindu religious organisations and sensitive places in Uttar Pradesh.
The recovered explosives were examined by the Forensic Science Laboratory, Agra, and were found to be PETN (Penta Erythritol Tetranitrate).
Arguments of the accused
Seeking bail, the appellants submitted that they had been in custody since February 2021 and that the trial was progressing extremely slowly and that even the cross-examination of the informant in the FIR has not been completed, although some formal witnesses have already been examined.
The Court had earlier, on December 7, 2022, rejected bail but directed the trial court to conclude the trial within 1 year. Subsequently, in proceedings under Section 482 CrPC, the High Court again directed that the prosecution witnesses be examined and cross-examined expeditiously.
Earlier, on August 3, 2026, the High Court had directed the Special Sessions Judge/NIA/ATS, Lucknow, to submit a comprehensive report explaining why the trial had not been concluded despite its earlier directions.
The trial court's report showed that 95 dates had been fixed for examination of prosecution witnesses. Although the chief examination of 11 witnesses had been completed, only 5 had been cross-examined. PW-2's cross-examination alone had already extended to 35 pages but remained incomplete.
High Court's observations
At the outset, the Court expressed its 'surprise' that the trial court had "not shown its proper indulgence to abide by the directions of this Court". The Bench took exception to the manner in which the trial had proceeded as it observed thus:
"...trial court has not adopted the provision of section 309 Cr.P.C.(Provision of Section 346 BNSS) wherein it has been categorically indicated that for the serious offense including those offense which have been indicated in such section, day-to-day trial may be conducted and if the prosecution fails to produce prosecution witnesses before the learned trial court to be examined or cross-examined, any coercive order may be passed including the order imposing cost upon the prosecution".
It further observed that there was no progress in the trial and that, in such circumstances, the fundamental right of the accused under Article 21 may have to be protected. The Bench also questioned the prosecution for not taking proper steps to ensure examination of its witnesses.
The High Court noted that the appellants had remained incarcerated for more than five years and four months and, considering the pace of the trial, there was no likelihood of its conclusion in the near future.
The Bench also relied upon the Supreme Court's judgment in Union of India v. K.A. Najeeb, holding that where incarceration is prolonged, the trial has not made sufficient progress and there is no likelihood of its conclusion in the near future, the accused's Article 21 right to speedy trial comes into play.
The Bench accordingly concluded thus:
"…we find it appropriate that the present appellants may be enlarged on bail for the reason that despite the specific order having been passed by this Court twice to conclude the trial with expedition, only 5 prosecution witnesses which are mainly formal in nature have been examined, the examination of remaining 13 prosecution witnesses are to be completed, the main prosecution witness i.e. P.W.-2 has not turned up for cross examination in so many dates, despite some coercive orders have been passed and he has been given an opportunity to be cross examined through video conferencing".
Hence, the Court set aside the May 14, 2024 order rejecting bail and allowed the appeal.
The appellants were directed to be released on bail on furnishing two sureties of ₹5 lakh each and a personal bond of the same amount, subject to several conditions, including fortnightly attendance before the ATS and restrictions on leaving Uttar Pradesh without permission.
The trial court was again directed to expedite the trial and conclude it expeditiously, invoking Section 309 CrPC/Section 346 BNSS, with no unnecessary adjournments.
Case title - Ansad Badruddin And Another vs Anti Terrorist Squad Thru. Its Adg/Sp 2026 LiveLaw (AB) 572
Case citation : 2026 LiveLaw (AB) 572