The court observed ground realities are totally different as in the instant case (Ashim vs National Investigation Agency Crl Appeal 1525 of 2021), after the charge sheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the charge sheet on 20th June, 2019. This fact certainly cannot be ignored that the appellant is in custody since 6th July, 2012 and has completed nine and half years of incarceration (confinement in a jail or prison) as an under trial prisoner. Before us, the order sheets have been placed for perusal of the instant case and it indicates that hearing is taking place only one day in a month and if this procedure is being followed in conducting the trial under Act 2008, it frustrates the very purpose with which the special Courts are designated.
This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.
Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.
The three Judge Bench of this Court in Union of India Vs. K.A. Najeeb 2021(3) SCC 713 had an occasion to consider the long incarceration and at the same time the effect of Section 43D(5) of the UAP Act and observed as under:
It is thus clear to us that the presence of statutory restrictions like Section 43D(5) of the Unlawful Activities Prevention Act, 1967 per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
Before parting with the order, we would like to observe that under the scheme of the Act 2008, the power is vested with the Central Government in consultation with the Chief Justice of the High Court, for the trial of scheduled offences, designate one or more Courts of Session as Special Courts, by notification in the Official Gazette, with the place of jurisdiction of special Courts and its jurisdictional power has been defined under Sections 13 and 14 of the Act 2008.
At the same time, it has been mandated under Section 19 of the Act 2008 that the trial under the Act of any offence by a Special Court shall be held on day to day basis on all working days and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall, if necessary, remain in abeyance. The power of State Government to designate one or more Courts as Special Courts for the trial of offences under any or all the enactments specified in the Schedule is provided under Section 22 of the Act, 2008. It has been informed to this Court that only one such Special Court has been designated by the State of West Bengal to try such cases under the Act 2008.
In the given circumstances, we consider it appropriate to direct that the State of West Bengal shall take up the issue and designate more dedicated courts of Sessions as Special Courts for the trial of offences specified in the schedule appended to the Act 2008. At the same time, the Central Government may also, in consultation with the Chief Justice of the High Court, Calcutta may exercise its power and take up the issue at the earliest so that such trials which are pending under the Act 2008 may go ahead speedily and the mandate, as intended by the legislature in its wisdom, reflected from Section 19 of the Act, is being complied with in its letter and spirit.
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