The Rajasthan High Court has upheld the denial of bail to five accused in the 2022 beheading case of Udaipur tailor Kanhaiya Lal.

The division bench of Chief Justice Sanjay K Agrawal and Justice Sameer Jain rejected the appeals filed against the orders of the special NIA Court, whereby the bail applications of the appellants were dismissed.

It observed that the terror created by the offence was not merely an assault on physical body, but it struck the psychological sovereignty of the country since its object was not to commit an offence but to assassinate peace by replacing Rule of Law with Rule of Fear.

“The gavel strikes, not merely to conclude a hearing, but to echo the unyielding resolve of a sovereign Republic…The preambles of the National Investigation Agency Act, 2008 and the Unlawful Activities (Prevention) Act, 1967 are not mere statutory introductions; they are the legislative declarations of a State fighting for its self-preservation…The law must possess th teeth to bite those who attempt to devour the nation's harmony.”

Kanhaiya Lal had received threats earlier for supporting in social media the remarks made by BJP leader Nupur Sharma on Prophet Muhammed. The assailants took a video of the brutal attack. In a video posted later, the attackers said that they carried out the murder to avenge the insult to Islam.

It was the case of the State that the evidence on record suggested a deep-rooted criminal conspiracy which was highly pre-planned and pre-meditated with an object to instil fear, terrorize conscience the society and strike terror in the nation at large. It was argued that the incident was deliberately given communal colour to create divide between two communities and disrupt tranquillity of the State.

After hearing the contentions, the Court perused Section 43D(5) of the UAPA which lays down the circumstances wherein bail could be denied and observed that the provision was governed by two vital pillars: 1) Test of Prima Facie True; 2) the Article 21 safeguard.

In relation to the first test, reference was made to the Supreme Court case of NIA v Zahoor Ahmad Shah Watali, in which it was held that the degree of satisfaction required to deny bail was only to assess whether the accusations were prima facie true based on broad probabilities.

Further, in relation to the second rule, the Court made a reference to another Supreme Court case of Union of India v K.A. Najeeb that held that the restriction against bail under Section 43D(5) could not render the constitutional guarantee under Article 21 illusory. It was opined that bail could be considered where there was no likelihood of the trial being completed within reasonable time, and period of incarceration exceeding substantial part of prescribed sentence.

However, at the same time, in case of Gulfisha Fatima v. State (Govt. of NCT of Delhi) it was held that Article 21 was important, but where the Parliament had conditioned grant of bail, in a special statute, upon satisfaction of a defined threshold, constitutional court could not treat such constrain as voidable.

In this background, the Court held that it must balance statutory mandate under Section 43D(5) against the constitutional safeguards as under Article 21.

The Court considered the investigation done by the NIA, and held that a prima facie evaluation of the material on record was sufficient to proceed against the appellants. Further, it held that the nature of offence was not ordinary but reflected a deep-rooted organized criminal conspiracy.

The Court further opined that even though accused persons have been in prison for over four and half years now, it needed to be viewed in the context of trial's progress.

It was opined that looking at the pace of the trial, which was rapid on a day-to-day basis, it could not be said that there was not possibility of the trial not getting completed within a reasonable time. Hence, no Article 21 could be invoked in the case.

It was further observed,

“…brutal murder by entering the shop of the deceased-victim in broad daylight, coupled with the recording and dissemination of the act of such a grave and heinous nature to create communal disharmony and terror, strikes at the very foundation of the State. Criminal conspiracy for such an organized terror activity has a profound and devastating impact on society at large, far exceeding that of an individual, ordinary crime.”

Hence, it was held that grant of bail had to deviate from the ordinary rule and strict approach had to be adopted.

Accordingly, the appeals were dismissed, and the rejection of bails was upheld.