After over five years in custody and a stalled UAPA trial, Allahabad High Court grants bail citing the right to speedy trial

The appellants were arrested on 16 February 2021 in connection with Case Crime No. 04 of 2021, registered under Sections 120-B and 121-A IPC; Sections 13, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”); Sections 3, 4 and 5 of the Explosive Substances Act, 1908; and Sections 3, 25 and 35 of the Arms Act.

The prosecution alleged recovery of firearms, live cartridges, PETN explosives, explosive devices, detonators, wires, mobile phones, diaries and other incriminating articles from the appellants.

The appellants had remained in custody since 17 February 2021. Their earlier bail appeal was dismissed on 7 December 2022, although the trial court was directed to conclude the trial preferably within one year.

Subsequently, on 24 January 2024, the High Court directed that prosecution witnesses be cross-examined after their examination-in-chief and that the trial proceed expeditiously.

Despite these directions, 95 dates were fixed for prosecution evidence; examination-in-chief of 11 witnesses was completed, but only five witnesses were fully cross-examined.

The cross-examination of PW-2, the complainant and principal prosecution witness, remained incomplete despite coercive processes and an opportunity for video-conferencing.

The appellants’ third bail application was rejected by the Special Judge-NIA, Lucknow, on 14 May 2024, giving rise to the present appeal.

1. Whether the appellants were entitled to bail under Article 21 of the Constitution on account of prolonged incarceration and the absence of meaningful progress in the trial, notwithstanding the restrictions under Section 43-D(5) of the UAPA.

2. Whether the repeated failure to complete the evidence of PW-2 and the examination of the remaining prosecution witnesses demonstrated that the trial was unlikely to conclude in the near future.

3. Whether the Special Judge and the prosecution had failed to comply with the High Court’s earlier directions to conduct and conclude the trial expeditiously.

The Court applied the proviso to Section 43-D(5) of the UAPA, which ordinarily prohibits bail where the court finds reasonable grounds for believing that the accusation is prima facie true.

However, this statutory restriction does not extinguish the constitutional guarantee of personal liberty and speedy trial under Article 21.

Relying principally on Union of India v. K.A. Najeeb, (2021) 3 SCC 713, the Court held that prolonged incarceration, unjustified delay, and the absence of a reasonable likelihood of conclusion of trial may justify bail even in UAPA cases.

The Court also relied on Syed Iftikhar Andrabi v. National Investigation Agency, Jammu, 2026 SCC OnLine SC 881, which reaffirmed that K.A. Najeeb remains binding and must be followed by smaller Benches.

The Court considered, but did not follow to the extent inconsistent with K.A. Najeeb, the narrower approach referred to in Gulfisha Fatima v. State (NCT of Delhi).

In relation to the conduct of the trial, Section 309 Cr.P.C. (corresponding to Section 346 BNSS) requires expeditious, day-to-day proceedings in serious criminal cases, while Sections 135 and 138 of the Evidence Act prescribe the normal sequence of examination-in-chief, cross-examination and re-examination.

The Court found that the appellants had been incarcerated for more than five years and four months, while the trial had progressed only marginally.

Of 18 prosecution witnesses, only five had been fully examined, and 13 remained to be examined.

Most significantly, the cross-examination of PW-2, the complainant and principal witness, remained incomplete despite 35 pages of cross-examination, repeated opportunities, bailable and non-bailable warrants, other coercive orders and permission to use video-conferencing.

The Court attributed the delay primarily to the prosecution’s failure to secure and examine its witnesses and observed that the trial court had not effectively invoked Section 309 Cr.P.C. or imposed costs for repeated non-production of witnesses.

Although the allegations involved serious UAPA and explosives offences and therefore attracted Section 43-D(5), the Court held that the statutory bar could not be applied in a manner that neutralised the appellants’ Article 21 right to a speedy trial.

In view of the long custody, repeated non-compliance with prior judicial directions, poor progress and the absence of any reasonable prospect of an early conclusion, the constitutional principle recognised in K.A. Najeeb warranted bail.

The order dated 14 May 2024 rejecting bail was set aside, and the appeal was allowed.

Ansad Badruddin and Firoz Khan were directed to be released on bail upon furnishing personal bonds of ₹5,00,000 each with two sureties of the like amount, subject to conditions including deposit of passports, fortnightly attendance before ATS Gomtinagar, no travel outside Uttar Pradesh without permission, no unnecessary adjournments, appearance before the trial court on every date, and personal presence on dates fixed for opening of the case, framing of charge and examination under Section 313 Cr.P.C./Section 351 BNSS.

The trial court was again directed to expedite and conclude the trial by invoking Section 309 Cr.P.C./Section 346 BNSS and to avoid unnecessary adjournments.