Prolonged pre-trial incarceration and parity with co-accused override statutory bail restrictions under UAPA.

In brief

The question

1. Whether the Appellant is entitled to bail on the ground of parity with co-accused and prolonged pre-trial incarceration despite the statutory rigors of Section 43-D(5) of the UAPA.

The court held

The Appellant is entitled to be released on bail during the pendency of the proceedings due to prolonged incarceration and parity.

It also directed

The Court set aside the impugned order and allowed the Appeal, directing the Appellant to be released on a P.R. bond of Rs. 1,00,000/- with conditions including reporting to the NIA office monthly and surrendering his passport.

01Facts

The Appellant, a lawyer (Accused No. 3), was arrested in connection with C.R. No. 4 of 2018 (the Bhima Koregaon case) involving charges under the Indian Penal Code (IPC) and the Unlawful Activities (Prevention) Act, 1967 (UAPA).

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He challenged the Order dated 6th November 2019 passed by the Special Court, Pune, which had rejected his bail application.

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By the time of the High Court hearing, the Appellant had undergone approximately 7 years and 11 months in pre-trial incarceration, significantly longer than 15 other co-accused who had already been granted bail by the High Court or the Supreme Court.

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The National Investigating Agency (NIA) opposed bail, citing the gravity of the offences and a separate pending case in Gadchiroli.

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02Issues

i.1. Whether the Appellant is entitled to bail on the ground of parity with co-accused and prolonged pre-trial incarceration despite the statutory rigors of Section 43-D(5) of the UAPA.

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ii.2. Whether the pendency of another serious criminal case elsewhere acts as an absolute bar to granting bail in the present matter.

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03Law Applied

The Court primarily applied Section 21(4) of the NIA Act regarding appeals and Section 43-D(5) of the UAPA, which restricts bail for scheduled offences.

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Statutory restrictions under Section 43-D(5) do not oust the power of constitutional courts to grant bail where there is a violation of the right to a speedy trial under Article 21 of the Constitution as established in Union of India v. K.A. Najeeb (2021).

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The Court also noted the NIA's reliance on Gulfisha Fatima v. State (Govt. of NCT of Delhi) (2026) regarding the limits of relying solely on prolonged incarceration.

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Provisions in the judgment · 2 · Linked ones open on LawLens

National Investigation Agency Act, 2008 Section 21

Code of Criminal Procedure, 1973 Section 439

04Reasoning

The Court observed that while the UAPA carries heavy legislative policy against bail, these "rigours" melt down when there is no likelihood of the trial concluding within a reasonable time and the period of incarceration exceeds a substantial part of the prescribed sentence.

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The Court found that the Appellant’s nearly 8-year detention without trial constituted a "wholesale breach of constitutional right to speedy trial" as contemplated in K.A. Najeeb.

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The Court accepted the principle of parity, noting that the Appellant had served more time than co-accused such as Sudhir Dhavale and Hany Babu, who were already released.

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The Court implicitly rejected the NIA's argument regarding the Gadchiroli case as being sufficient to override the constitutional mandate for liberty in the present context.

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