BREAKING| Supreme Court Disapproves Judgment Denying Bail To Umar Khalid For Ignoring Binding Precedent In 'KA Najeeb'

The Supreme Court on Monday (May 18) expressed reservations about the judgment delivered by a two-judge bench in January this year in Gulfisha Fatima v. State (which denied bail to Umar Khalid & Sharjeel Imam in the Delhi riots larger conspiracy case) saying that it did not properly follow the judgment delivered by a three-judge bench in 2021 in Union of India v. KA Najeeb which recognised long delay in trial as a ground for bail in cases under the Unlawful Activities Prevention Act.

The Court also expressed disapproval of the judgment of the two-judge bench delivered in 2024 in Gurwinder Singh v. Union of India for not applying KA Najeeb.

A bench comprising Justice BV Nagarathna and Justice Ujjal Bhuyan made these observations while allowing the bail plea of one Syed Iftikhar Andrabi, who has been under custody for over 5 years in a case under the UAPA for alleged narco-terrorism.

The judgment pronounced by Justice Bhuyan noted that the 3-judge bench in KA Najeeb had clearly held that prolonged incarceration was a ground for the Constitutional Courts to grant bail under UAPA despite the rigours under Section 43D(5) of the UAPA. However, the judgments delivered by two-judge benches in Gurwinder Singh and Gulfisha Fatima took a somewhat divergent view, Justice Bhuyan noted.

The bench observed that it was difficult to accept the views taken in Gurwinder Singh and Gulfisha Fatima.

"A judgment rendered by a bench of lesser strength is bound by the law declared by the bench of greater strength. Judicial discipline mandates that such a binding precedent must either be followed or, in case of doubt, be referred to a larger bench. A smaller bench cannot dilute, circumvent or disregard the ratio of a larger bench," Justice Bhuyan stated in the judgment.

The bench observed that the pre-Najeeb judgment in NIA v. Zahoor Ahmed Shah Watali (2019)cannot be invoked to justify prolonged pre-trial incarceration under UAPA. Hence, the attempt made in Gurwinder Singh to read Watali as laying down a general rule of bail denial in UAPA cases is difficult to reconcile with.

Also, the 'two-prong' test laid down in Gurwinder Singh was something which did not flow from either from the UAPA or the KA Najeeb decision. As per this two-prong test, bail will be considered only if the accused satisfies that there was no prima facie merit in the case. The Court stated that this was clearly contrary to the view in Najeeb if there was prolonged delay in trial, bail must be considered, regardless of other factors.

The bench also specifically expressed its reservations about the Gulfisha Fatima judgment for holding that the principle in Najeeb applies only in exceptional cases. An accused obtains an automatic right to get bail on mere passage of time under custody.

"The broad reading of Najeeb suggests that the mere passage of time, if it arises from all surrounding circumstances, mechanically entitles an accused to release," Justice Bhuyan stated.

"We make it clear that KA Najeeb is binding law and entitled to the protection of stare decisis. It cannot be diluted, circumvented or disregarded by the trial court, the High Court or even by benches of lower strength of this court," Justice Bhuyan pronounced.

The bench noted that KA Najeeb judgment was rendered specifically noting the fact that the rigours of Section 43D(5) made the securing of bail a near impossibility, leading to prolonged pre-trial incarceration. It is to avoid this situation, which will lead to the infringement of the right to personal liberty guaranteed under Article 21 of the Constitution, that KA Najeeb recognised prolonged custody occasioned by delay in trial as a ground for bail. 

The bench specifically recorded its disapproval of the trend of smaller benches "hollowing out" the precedents laid down by larger benches, without expressly disagreeing with them.

Incidentally, both the judgments in Gurwinder Singh and Gulfisha Fatima were authored by Justice Aravind Kumar.

Bail is the rule even in UAPA cases

The bench reiterated that the rule 'bail is the rule, jail is the exception' remains valid even in cases under the UAPA.

The statutory embargo of Section 43D(5) UAPA must remain subject to the guarantee of Article of the Constitution.

"Therefore, we have no manner of doubt in stating that even under the UAPA, bail is the rule and jail is the exception," the Court held.

Senior Advocate Shadan Farasat appeared for the petitioner.