Delhi High Court
Mansoor Asghar Peerbhoy vs State Govt. Of Nct Of Delhi on 7 July, 2026
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23rd May, 2026.
Pronounced on: 7th July, 2026
Uploaded on: 7th July, 2026
+ CRL.A. 1461/2025 & CRL.M.A. 31308/2025
MANSOOR ASGHAR PEERBHOY ..... Appellant
Through: Mr. Mehmood Pracha, Mr. Sanawar,
Mr. Jatin Bhatt, Mr. Kshtij Singh, Mr.
Sikander Raza, Advs.
versus
STATE GOVT. OF NCT OF DELHI .....Respondent
Through: Mr. Ritesh Kumar Bahri, APP with
Ms. Divya Yadav & Mr. Lalit Luthra,
Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
JUDGEMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
2. The present appeal has been filed by the Appellant under Section 21 of
the National Investigation Agency Act, 2008, inter alia, assailing the order
dated 19th July, 2025 passed by the Additional Sessions Judge -02, New Delhi
District, Patiala House Courts, New Delhi (hereinafter, ‘impugned order’) in
Sessions Case No. 8726/2016, arising out of F.I.R. No. 166/2008 registered
at P.S. Karol Bagh (Special Cell).
3. Vide the impugned order, the third bail application of the Appellant has
been dismissed by the Trial Court. The relevant portion of the impugned order
is set out below:
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“[…]
30. Considering the nature of offence, seriousness of
allegations and enormity of charge and the statutory
bar u/s 43-D(5) of UAPA, this Court is of the
considered opinion that the instant bail application is
devoid of any merits and the same is accordingly
dismissed.
31. Needless to say that nothing observed herein shall
have a bearing upon the merits of the case.
32. Application is disposed off accordingly. Copy of this
order be given dasti.”
FACTUAL BACKGROUND
4. The factual matrix of the present case is that, on 13th September, 2008,
serial blasts occurred at various locations in Delhi, namely Karol Bagh, M-
block market Greater Kailash-1 and Connaught Place. In addition, three live
bombs were also detected, including one at Central Park, Connaught Place,
one near Regal Cinema, and one at the Children’s Park, India Gate, Delhi. As
a result of the aforesaid incidents, 26 individuals were killed and 135
individuals sustained injured.
5. On the said date, at about 6:25 pm, a terrorist organisation “Indian
Mujahideen” sent an email from the email address [email protected]
(hereinafter, ‘the email’) to various electronic and print media houses in India,
Pakistan and other countries, claiming responsibility of the blasts that had
occurred in Delhi on 13th September, 2008.
6. The subject of the aforesaid email was, “MESSAGE OF DEATH”.
The contents thereof are set out below:
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“In the name of Allah
Indian Mujahideen strikes back once more.
Within 5 mins from now …
This time with the Message of Death.
Dreadfully Terrorizing you for your sins.
And thus our promise will be fulfilled, Inshallah
Do whatever you want and stop us if you can.
Exclusively from Indian MujahideenAnd here is the verifying proof…
7. A perusal of the text would show that the email was sent a few minutes
before the blast. The email included attachments of pictures from previous
bomb blast incidents in Rajasthan, Gujarat as well a .pdf document, running
into 13 pages. The said pdf document was titled as “EYE FOR AN EYE,
THE DUST WILL NEVER SETTLE DOWN”, released by the ‘Indian
Mujahideen’, in the Land of Hind (hereinafter, the pdf document’).
8. In the pdf document, the terrorist organisation ‘Indian Mujahideen’
described itself as “the homegrown jihadi militia of Islam”. The relevant
extracts from the PDF document are set out below:
“It is not hidden from you anymore that after tasting the
bitterest of defeats by our hands at Ahmedabad and
Surat, the INDIAN MUJAHIDEEN- “the homegrown
Jihadi militia of Islam”- have once again attacked to
make you face the disastrous consequences of the
injustice and oppression inflicted upon the Muslims all
over the country. With this message, we once again
declare that our intense, accurate and successiveCRL.A. 1461/2025 Page 3 of 61
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attacks like the one you will see exactly 5 minutes from
now, Inshallah, will continue to punish you even
before your earlier wounds have healed. To dreadfully
terrorize you this time, by the Will and Help of Almighty
Allah, we are about to devastate your very first
metropolitan center, your ‘most strategic hindutva
hub’, your ‘green zone’- yes! It’s your own capital –
New Delhi – with NINE MOST POWERFUL SERIAL
BOMB BLASTS, Inshallah, that are almost going to
stop the “heart” of India from beating.
XXX
By this attack we intend to prove to you the ability and
potential of INDIAN MUJAHIDEEN to assault any city
of India at any time with the Help and Permission of our
Almighty Allah. This accurately planned deadly strike is
just another reaction to all those pre- and post- 26 July
harassments imposed by your ATS and police on the
innocent Muslims with complete, but hidden, backing of
Central Congress government, aided by the state
governments of Gujarat, Rajasthan, Maharashtra,
Madhya Pradesh, Uttar Pradesh, Andhra Pradesh and
Karnataka. This shows the never ending hostile hatred
in your hearts against Islam and its people. But now it
is time that you must realize the fact: you cannot deal
with us unjustly any more.
XXX
The INDIAN MUJAHIDEEN salutes those courageous
and fearless Muslims of Azamgarh who disciplined the
bastard Yogi Adityanath and other wretched Hindus
who tried to march from within the Muslims in order to
tease them and support an anti-terrorist demonstration.
His anti-Islamic slogans deserved bullets instead of
stones as an answer, and here is an open challenge to
him that if he and his cowardly supporters are able toCRL.A. 1461/2025 Page 4 of 61
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gather all their guts and grit to stand in front of us once
more – they must try it, and if not, then just wait for a
spine chilling brutality from our side.
XXX
The Central Congress Government which pretends to be
the well wisher of Muslim interests has always
treacherously hurt them and used them to come in power
since Independence. It is this double-faced attitude of
the Congress that has secured its vote bank, and still
allowed it to silently commit one of the most heinous
crimes against the Muslim nation ever witnessed by
history – the demolition of Babri Masjid. It has failed to
take heed and still continues to cheat the Muslims under
the label of “secularism”. These serial bomb blasts at
Delhi are yet another intimidation to the Congress
Government to desist from agitating the Muslim
sentiments anymore. Your approval to the bills like
GUJCOCA and POTA are not at all going to deter or
affect the determination of the Mujahideen in any way,
rather it will make our tasks easier for us.
We, the INDIAN MUJAHIDEEN, ask Allah, the
Almighty to accept from us these 9 explosions, which
were planned to be executed in the holy month of
Ramadan.
XXX
The INDIAN MUJAHIDEEN accepts the sole
responsibility of Delhi serial blasts, and we claim this,
through our consecutive email, which is,
unfortunately, still a mystery is very sad to see the bad
condition of your cyber forensics who have still failed
to find out our technique of sending the “Message of
Death”.
To end with, we have now proved to you that the more
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you trouble us, the more you will be troubled by us. This
deadliest strike at Delhi once again makes it clear that
our threats are not at all limited to mere words and with
the Will and Permission of Allah, the action is in front
of your eyes. Let us make it clear to all the enemies of
Muslims, especially the Hindus of India, that the BJP
backed RSS, VHP, Bajrang Dal, and the entire Sangh
Parivar would be the only responsible factors for
whatever horrifying tragedies you are to face in the
nearest future. The cause will be these wicked bastards
and the effect will be on the entire nation. Remember it
is not at all difficult for us to attack you in states like
Punjab, Haryana, Himachal Pradesh, Orissa, Tamil
Nadu, Kerala etc. And by The Grace of Allah there is no
shortage of explosives or lack of manpower and we are
extremely capable to shed your blood anywhere
anytime. The only reason here is that your wrongs
against us in other states have crossed the limits of
cruelty. If your still think that the arrests, expulsions,
killing, murders, fake encounters, tortures, sufferings,
cases, trials and tribulations inflicted on us will not be
answered back, then here we remind you: that those
days have gone.
The battle has now begun and the dust will never settle
down.”
9. A perusal of the above extracts would show that the pdf document
predicted the bomb blasts which were to occur within 5 minutes of the
transmission of the email. The pdf document also contained allegations
against various governments, including the Central and the State
Governments, at the relevant time. Further, it clearly states that 9 explosions
were to occur in parts of Delhi.
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10. In addition, the pdf document unequivocally claimed that the email
would be untraceable, and the techniques used to send the email would not be
deciphered by the agencies. It concluded with threats of further attacks in
several states, including Punjab, Haryana, Himachal Pradesh, Odisha, Tamil
Nadu, Kerala, etc.
11. The aforesaid email and the PDF document, upon being received by
various news agencies, were forwarded to the police authorities, whereupon
investigations were conducted.
12. Pursuant thereto, the following five FIRs came to be registered:
S.no. Details of the Offences Punishable
FIR
(i) FIR No. Sections 121/ 121-A/122/123/307/323/427/120-
130/2008 B of Indian Penal Code, 1860 (hereinafter,
registered at 'IPC')
P.S. Greater
Kailash Sections 3/4/5 of Explosive Substances Act,
1908;
Sections 16/18/20/23 Unlawful Activities and
Prevention Act, 1967 (hereinafter, ‘UAPA’);
Section 66 of Information and Technology Act
(ii) FIR No. Sections 121/ 121-A/122/123/302/
166/2008 307/323/427/120B of IPC;
registered at
P.S. Karol Sections 3/4/5 of Explosive Substances Act,
Bagh 1908;
Sections 16/18/20/23 of UAPA;
Section 66 of Information and Technology Act
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(iii) FIR No. Sections 121/ 121-A/122/123/302/
418/2008 307/323/427/120B of IPC;
registered at
P.S. Connaught Sections 3/4/5 of Explosive Substances Act,
Place 1908;
Sections 16/18/20/23 of UAPA;
Section 66 of Information and Technology Act
(iv) FIR No. Sections 121/ 121-A/122/123/302/
419/2009 307/323/427/120B of IPC;
registered at
P.S. Connaught Sections 3/4/5 of Explosive Substances Act,
Place 1908;
Sections 16/18/20/23 of UAPA;
Section 66 of Information and Technology Act
(v) FIR No. Sections 121/ 121-A/122/123/120-B of IPC;
293/2008
registered at Sections 3/4/5 of Explosive Substances Act,
Tilak Marg 1908;
Sections 16/18/20/23 of UAPA;
Section 66 of Information and Technology Act
13. The relevant FIR in the present case pertains to the Karol Bagh bomb
blast i.e., FIR No. 166/2008 registered at P.S. Karol Bagh.
14. The allegation against the Appellant is that he was heading the media
cell of the terrorist organisation ‘Indian Mujahideen’, along with certain other
co-accused. According to the prosecution, the Appellant along with the co-
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accused, Mubin Kadir Shaikh had sent the email of the Delhi serial bomb
blasts, dated 13th September, 2008, by hacking into the Wi-Fi network of M/s
Kamran Power Pvt. Ltd., Chembur, Mumbai.
15. Since the allegation against the Appellant pertained to the transmission
of email from Mumbai, a separate FIR bearing C.R. No. 375/2008 was
registered at P.S. Chembur, Mumbai. Subsequently, the said FIR was
transferred to PS. D.C.B. C.I.D., Mumbai and registered as D.C.B. C.R. No.
152/2008. The Appellant was arrested in connection with the said case on 28th
September, 2008.
16. Thereafter, the chargesheet pertaining to FIR No. 166/2008 registered
at P.S. Karol Bagh was filed before the Ld. Chief Metropolitan Magistrate,
Central Delhi District, Tis Hazari Courts. Pursuant thereto, the Appellant was
formally arrested in relation to FIR No. 166/2008 on 9th March, 2009 by the
Special Cell, Delhi Police.
17. Charges were framed against the Appellant and the other co-accused
vide the order on charge dated 5th February, 2011 passed by the Additional
Sessions Judge, Central District, Tis Hazari Courts, Delhi. Vide the said order,
ld. Trial Court had directed that a common trial would be conducted in relation
to all the five FIRs registered in Delhi.
18. Thereafter, on 6th May, 2011, charges were formally framed against the
Appellant in relation to FIR No. 166/2008. Vide order dated 6th May, 2011
passed by the Additional Sessions Judge, Tis Hazari Courts, New Delhi, the
Appellant was charged for offences punishable under Sections 121/121-
A/122/123/302/307/323/427/120-B of IPC, Sections 3/4/5 of the Explosive
Substances Act, 1908, Sections 16/18/20/23 of UAPA as also under Section
66 of the Information and Technology Act.
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19. The trial in FIR No. 166/2008 is presently underway. The prosecution
has led evidence of 303 prosecution witnesses and only two witnesses are left,
whose evidence is partly recorded.
20. The first bail application of the Appellant was dismissed by the Trial
Court vide order dated 23rd April, 2015.
21. Thereafter, the second bail application of the Appellant was also
dismissed by the Trial Court vide order dated 8th April, 2022 in Case No.
8726/2016. The appeal preferred by the Appellant challenging the said order,
was subsequently dismissed by this Court vide order dated 29th April, 2024 in
CRL.A. 947/2023 titled ‘Mansoor Asghar Peerbhoy v. State‘.
22. Pursuant thereto, an SLP being SLP (Crl.)No. 3527/2022 was filed,
which was also dismissed by the Supreme Court vide order dated 21st January,
2025, granting the Appellant the liberty to apply for fresh bail application if
trial is not concluded within six months. The order dated 21 st January, 2025 is
set out below:
“Delay condoned.
We are not inclined to interfere with the impugned
judgment(s). However, taking into consideration the
long pendency of the case, we request the Trial Court
to expedite the trial and make an endeavour to
conclude it within a period of six months.
The Trial Court shall also consider the feasibility of
having day by day trial. In the event of trial being not
concluded, liberty is given to the petitioners in
SLP(Crl.)No.3527/2022 and SLP(Crl.) Diary
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which case, the impugned judgment will not stand in
the way.
The Special Leave Petitions are disposed of
accordingly.
Pending application(s), if any, shall stand disposed of.”
23. In terms of the aforesaid liberty, the Appellant had preferred a third bail
application, which was also dismissed vide the impugned order dated 19th
July, 2025.
24. The case of the Appellant is that he has been an undertrial prisoner for
approximately 17 years. The present appeal has, therefore, been preferred
seeking grant of bail and setting aside of the impugned order dated 19 th July,
2025.
25. Recently, vide order dated 30th April, 2026 passed by the Supreme
Court in SLP (Crl.) 3527/2022, the Supreme Court had directed as under:
“Perused the letter dated 19.07.2025, received from the
learned District & Sessions Judge, Patiala House
Court, New Delhi seeking extension of time to conclude
the trial as mentioned in order dated 21.01.2025 in SLP
(Crl.) No.3527/2022.
We deem it fit to grant further period of a eight months
from the date of receipt of a copy of this order to
conclude trial the in the abovementioned matter.
We request the High Court to dispose of the pending
bail application filed by the petitioner within a period
of four weeks from the date of receipt of a copy of this
order. Ordered accordingly.
The Miscellaneous Application stands disposed of.”
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26. As can be seen from the above order, from April 2026, a period of 8
months have been granted to conclude the trial in the above matter along with
a request to this Court to consider and decide the bail application within four
weeks from receipt of the order.
27. On 20th May, 2026, the matter was listed and the Court was apprised of
the order in SLP (Crl.) 3527/2022 dated 30th April, 2026, passed by the
Supreme Court. Subsequently, the matter was taken up for urgent hearing on
the next day i.e., 21st May, 2026, wherein part submissions were advanced on
behalf of the ld. Counsels for the parties.
28. Thereafter, on 23rd May, 2026, further arguments on bail application
were heard, and judgement was reserved.
SUBMISSIONS ON BEHALF OF THE STATE
29. According to the prosecution, the Appellant was an active member of
the terrorist organisation, ‘Indian Mujahideen’, and headed its media cell
along with certain other associates, including Mubin Kadar Sheikh, who is
also one of the co-accused of the 13th September, 2008 serial blasts.
30. It is the case of the prosecution that the Appellant and Mubin Kadar
Shaikh had visited Mumbai, where they jointly purchased the laptop from a
shop known as ‘Modern Technology’. It is alleged that the said laptop was
used for sending the email.
31. Evidence of PW-231 – the owner of the computer shop from where the
laptops was purchased, had identified the Appellant and Mubin Kadar Shaikh
as the individuals who had purchased the laptops, used for sending the email.
Although he was not aware of the names of these two individuals, however,
he had identified them on the basis of their physical appearance. He deposed
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that he was paid a sum of Rs.28,000/- towards the purchase of the laptops,
and that he had also issued the receipt Exhibit PW-219/ P1 for the laptops.
32. Further, PW-231 also stated that he would be able to identify the laptop
sold to the Appellant and Mubin Kadir Shaikh. During the course of the trial,
the sealed laptop was produced before the Court, whereupon PW-231
identified the same by matching the number on the laptop with the
corresponding number on the receipt issued by him.
33. Recovery of electronic devices: According to the prosecution, the
laptops used for transmitting the email had been recovered at the instance of
Mubin Kadir Shaikh. Further, when the Appellant was arrested, various other
electronic equipments, such as Wi-Fi hotspot finder, Radio Frequency signal
Detector, one SEAGATE hard disk, and a spy hidden camera locator were
recovered from his possession.
34. Technical Expertise: Furthermore, it is also the case of the prosecution
that, at the relevant time, the Appellant was employed at Yahoo India Pvt.
Ltd. and was posted at the Pune office. Thus, as per the prosecution, the
Appellant and Mubin Kadir Sheikh were acting in concert and coordination
with each other. It is also stated that the Appellant possessed significant
computer knowledge, including knowledge relating to internet access and
hacking techniques, which was utilised in furtherance of the alleged
conspiracy for the serial blasts.
35. According to the prosecution, an examination of the laptop and hard
disk revealed the presence of software tools which were installed, including
the file erasing software i.e., HEX “00”. It is stated that the said software is
used to erase, and permanently destroy electronic data on hard drives or any
other digital storage media.
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36. Retrieval of PDF documents from the laptop: The State also relies
on retrieval of three pdf files from the laptop, including the pdf document
which was attached in the email. The details of the said documents which
were retrieved are as under:
• “File 1.pdf – Titled “THE RISE OF JIHAD,
REVENGE OF GUJRAT RELEASED BY INDIAN
MUJAHIDEEN IN THE LAND OF HIND”,• File 2.pdf – Titled “THE CARS THAT DEVASTATED
YOU THE TRUTH REVEALED RELEASED BY
INDIAN MUJAHIDEEN IN THE LAND OF HIND”.
• File 3.pdf – Titled “EYE FOR AN EYE THE DUST
WILL NEVER SETTLED DOWN RELEASED BY
INDIAN MUJAHIDEEN IN THE LAND OF HIND”.
• A slide (msg.wmv) containing photographs of killed
people in earlier bomb blasts with sentence
“MESSAGE OF DEATH.”
37. From amongst the aforesaid four documents, the last two documents
were the ones which were attached with the email dated 13th September, 2008.
38. Recovery of second laptop and deletion of Electronic data: In
addition, it is also stated that there was another laptop which was recovered
from the co-accused, Mubin Kadar Shaikh. Upon examination, the said laptop
also contained a file erasing and disk wiping software i.e., ‘STELLAR WIPE’.
The said software had generated a log on 13th September, 2008, indicating the
deletion of the aforesaid four documents. It is alleged that the said ‘STELLAR
WIPE’ had been used to wipe out the entire hard drive.
39. Usage of hacked Wi-Fi network for sending the email: It is the
prosecution’s case that the email was transmitted after hacking into the Wi-Fi
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of one M/s Kamran Power Controls Pvt. Limited, Chembur, Mumbai. In this
regard, reliance is placed upon the testimony of PW-156, Mr. Nikhil Kamath,
who was from the said company and had deposed that the company’s Wi-Fi
was hacked on the relevant date.
40. The further submissions on behalf of Mr. Ritesh Kumar Bahri, ld. APP
for the State is as under:
(i) The present case concerns offences of an extremely grave nature
involving serial bomb blasts, resulting in large scale loss of life and
injuries. It is submitted that five serial bomb blasts occurred while
three live bombs were detected and diffused. Even if the provisions
of UAPA are not taken into consideration, having regard to the
magnitude of the incident and its consequences, the case falls under
the category of rarest of rare cases, for which punishment of death
may be awarded.
(ii) It is stated that more deaths could have been caused by the
Appellant and his co-conspirators. Thus, the gravity of the offence
must be considered.
(iii) Reliance is placed upon the decision in Brijmani Devi v. Pappu
Kumar & Anr., (2022) 4 SCC 497 to take into consideration the
gravity of the offence and nature of punishment.
(iv) According to the prosecution, the evidence on record clearly
establishes that the Appellant was heading the media cell of the
banned terrorist organisation, ‘Indian Mujahideen’.
(v) It is further submitted that the Appellant possessed expertise in
cyber security and related fields and he had undergone special
training in hacking by taking the hacking course in Hyderabad. It isCRL.A. 1461/2025 Page 15 of 61
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also stated that the laptops recovered during investigation contained
file erasing software for erasing the volatile data.
(vi) Reliance is placed upon the decision in Gulfisha Fatima v. State
Govt. of NCT of Delhi 2026 INSC 2, to contend that the probative
value of the material and the documents of the prosecution have to
be considered.
(vii) In addition, reliance is also placed upon the decision in State of
Himachal Pradesh v. Krishanlal Pardhan and Ors. AIR 1987 SC
773 to submit that in cases involving criminal conspiracy, even if
some persons had active participation and the others did not have
active participation in commission of all offences, all conspirators
would be held liable for acts committed in furtherance of the
conspiracy.
(viii) It is also stated that the decision in Union of India v. K. A. Najeeb
(2021) 3 SCC 713 would not be applicable in the present case, as in
the said case, the trial was yet to begin when bail was being granted.
(ix) Furthermore, it is also submitted that K. A. Najeeb (supra)
recognises that there are different tests applicable for cancellation
of bail and for grant of bail. In K. A. Najeeb (supra), the High Court
had already enlarged the accused on bail and the Supreme Court
declined to interfere with the same. In the present case, however,
the Appellant continues to remain in custody and the prosecution
evidence is on the verge of conclusion.
(x) It is contended that there are a total of 14 accused who have to cross-
examine the witnesses, and a common trial is being conducted in
the five FIRs which have been registered. Hence, trial has taken a
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long time to conclude.
(xi) Reliance is also placed upon the decision in X v. State of Rajasthan
and Anr. 2024 INSC 909 to contend that only if the trial is delayed
for no fault of the accused, then the right to speedy trial is effective.
(xii) Lastly, the trial is presently being conducted on a day-to-day basis
and is nearing conclusion. It is submitted that only two witnesses
remain for cross-examination. It is stated that the release of the
Appellant, at this stage, may impede the expeditious conclusion of
the trial.
SUBMISSIONS ON BEHALF OF THE APPELLANT
41. Mr. Mehmood Pracha, ld. Counsel for the Appellant has made the
following submissions:
(i) It is vehemently urged that there is no evidence whatsoever to
connect the transmission of the email to the Appellant. According
to ld. Counsel, the prosecution has failed to establish any direct
nexus between the Appellant and the transmission of the email and
the Appellant has been falsely implicated in the present case.
(ii) Reliance is placed upon the testimony of PW-152, Dr. Zaki
Qureshi, CEO of E-II labs Information Security Pvt. Ltd., 4th Floor,
Kingston Heights, Road No.2, Banjara Hills, Hyderabad, Andhra
Pradesh to contend that the Appellant was sponsored by his
employer at Yahoo to undertake the hacking course. Unlike the case
which has been put up by the prosecution, the fee for the hacking
course was deposited by Yahoo and not by any co-accused or
terrorist organisation. He had joined the course from 14th May, 2007
to 19th May, 2007.
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(iii) Further, reliance is also placed upon the testimony of PW-156, Mr.
Nikhil Kamath, on behalf of M/s Kamran Power Controls
Pvt. Ltd. at 201-202, Eric House, Commercial Complex, 16th Road,
Chembur, Mumbai, who stated that he came to know about the
alleged hacking of the Wi-Fi of his company from the police
officials and media. He also stated that he could not recall his IP
address. It is accordingly submitted that the prosecution’s theory
regarding the use of an unsecured Wi-Fi network stands
contradicted by the prosecution’s own evidence.
(iv) It is emphasized that the forensic examination in the present case is
fraught with serious infirmities. The Forensic Science Laboratory
did not have proper forensic tools to conduct the examination of the
digital equipment, including the recovered laptops, etc.
Consequently, no proper forensic analysis of the recovered
electronic devices was undertaken.
(v) It is also submitted that the prosecution sought to rely upon the
admission made by the Appellant during police investigation. As
per PW-226, Investigating officer of the Mumbai Case, it was
claimed that the Appellant had admitted that he had used the Wi- Fi
of M/s Kamran Power Controls Pvt. Ltd. However, such admission
is inadmissible in evidence.
(vi) Certain objections have also been raised with respect to the
documents allegedly attached to the email.
(vii) It is further submitted that the present case is governed by the
provisions of the UAPA as they existed prior to the amendments
introduced in the year 2008. According to the ld. Counsel, theCRL.A. 1461/2025 Page 18 of 61
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restrictions contained in Section 43D(5) of the Act, in its present
form, would not be applicable, as the amended provisions came into
force only on 31st December, 2008.
(viii)Ld. Counsel points out that out of the 305 prosecution witnesses,
the evidence of 303 witnesses already stands concluded. Of the
remaining two witnesses, one witness has been partly examined. It
is further submitted that there were originally seventeen accused
persons facing trial, out of whom one accused has been discharged,
one accused has expired, one accused has been granted bail, and the
remaining 14 accused persons continue to remain in judicial
custody.
(ix) Furthermore, ld. Counsel seeks parity with co-accused Mohd.
Hakim, who has been granted bail vide order dated 6th October,
2021 in CRL.A. 170/2021 titled ‘Mohd. Hakim v. State (NCT of
Delhi)’ passed by this Court. It is also stated that the SLP against
the said order being SLP(Crl.) No. 006264/2022 titled ‘State (NCT
of Delhi) v. Mohd. Hakim‘ was tagged along with SLP (Crl.)No.
3527/2022 and was dismissed vide common order dated 21st
January, 2025, which is extracted above.
(x) It is case of the Appellant that he has been acquitted by the Ld.
Ahmedabad City Special Designated Judge for Speedy Trial of
Serial Bomb blast Cases Court, City Sessions Judge relating to
similar allegations, vide order dated 8th February, 2022 in Sessions
Case No. 38/2009. It is also the case of the Appellant that he has
been granted bail by the High Court of Bombay vide order dated
16th July, 2024 in Crl.A. No. 702/2024 titled ‘Mohd. Mansoor
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Asghar Peerbhoy v. The State of Maharashtra’, pertaining to
alleged sending of the email as a part of the conspiracy concerning
the 13th September, 2008 serial bomb blasts.
(xi) In addition, ld. Counsel also relies upon the following decisions:
(A) National Investigation Agency v. Zahoor Ahmad
Shah Watali (2019) 5 SCC 1(B) Syed Iftikhar Andrabi v. National Investigation
Agency, Jammu, 2026 INSC 503(C) SLP(Crl.) No. 2867/2026 titled ‘Tasleem Ahmed v.
State Govt. of NCT of Delhi’
(D) Hitendra Vishnu Thakur v. State of Maharashtra
(1994) 4 SCC 602
(E) SLP(Crl.) No. 83/2024 titled ‘Suhail Ahmad Thokar
v. National Investigation Agency‘
(xii) Ld. Counsel has also placed considerable reliance on the
examination-in-chief and cross-examination of various prosecution
witnesses, and submitted that the evidence which has emerged
during trial demonstrates that the prosecution has failed to establish
its case against the Appellant.
(xiii)Lastly, ld. Counsel contends that the trial has remained pending for
an inordinately long period, and that the prosecution has, on several
occasions, sought adjournments resulting in further
delay. Considering that the Appellant has already undergone
incarceration for more than seventeen years as an undertrial and that
the trial is yet to attain finality, it was urged that the Appellant
deserves to be enlarged on bail.
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ANALYSIS
42. The Court has heard the submissions made on behalf of the ld. Counsels
for the parties and has perused the records.
43. The case of the Appellant, in a nutshell, is threefold:
(i) The Appellant has been falsely implicated in the present case.
(ii) The evidence relied upon by the prosecution suffers from serious
infirmities and fails to establish his involvement in the alleged
transmission of the email.
(iii) That the Appellant has remained incarcerated for approximately
seventeen years as an undertrial prisoner, the delay in conclusion of
the trial is not attributable to him, and having regard to the
principles of parity, his acquittal and grant of bail in connected
proceedings, and the mandate of Article 21 of the Constitution, he
deserves to be enlarged on bail.
44. The issue that arises for consideration in the present appeal is whether
the material on record discloses a prima facie case against the Appellant and,
consequently, whether, having regard to the nature of the allegations and the
period of incarceration undergone by him, the Appellant is entitled to be
enlarged on bail or not.
THRESHOLD OF SECTION 43(D)(5) OF THE UAPA
45. At the outset, insofar as the applicability of extant, amended Section
43(D)5 of the UAPA to the present case is concerned, this Court while dealing
with the second bail application of the Appellant, being CRL.A. 947/2023
titled ‘Mansoor Asghar Peerbhoy v. State‘ had dealt with the same
contention. Vide judgement dated 29th April, 2024 the Court had observed as
under:
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“[…]
32. The grounds of bail raised by the appellant before
this Court are not distinct than the one raised before
the learned Trial Court. The appellant has sought
parity with co-accused Mohd. Hakim who has been
granted bail by this Court vide order dated 06.10.2021.
Pertinently, in the case of Mohd. Hakim, this Court
has taken note of his role by observing that a limited
role has been ascribed to the appellant in the offences
alleged, namely, that he had carried a certain quantity
of cycle ball-bearings from Lucknow to Delhi, which,
according to the allegations, were subsequently used to
make Improvised Explosive Devices (IEDs), which were
employed in the series of bomb blasts that occurred in
Delhi in 2008. While observing so, the Court held that
once charges under the provisions of UAPA have been
framed against the appellant, the reasonable grounds
to believe that the accusations against the accused are
prima facie true, does not arise; which finding of
learned Trial Court has not been challenged before
this Court and so, the bar engrafted in the proviso to
Section 43- D(5), as expatiated upon by the Hon’ble
Supreme Court in Watali (supra), would operate.”
46. In terms thereof, this Court had observed that the grounds of bail raised
by the Appellant were not distinct from the ones raised before the Trial Court.
The Court also noted that the Appellant had sought parity with the co-accused,
Mohd. Hakim, who had been enlarged on bail vide order dated 6th October,
2021 in CRL.A. 170/2021. Placing reliance on the said order, the Court noted
that once charges under the provisions of the UAPA had been framed against
the appellant therein, the reasonable grounds to believe that the accusations
against the accused were prima facie true would not arise, a finding of the ld.
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Trial Court, that had not been challenged before this Court. Consequently, it
was held that the bar engrafted in the proviso to Section 43-D(5), as laid down
by the Hon’ble Supreme Court in Watali (supra), would operate.
47. The said reasoning would be squarely applicable to the present case.
48. Moreover, even if the contention of the Appellant is considered, Section
43(D)(5) deals with ‘bail’, which is a matter of procedural law and not
substantive law, thereby the bar under the said provision would be applicable
to pending cases.
49. The said reasoning has also been reiterated by a Co-ordinate Bench of
the Bombay High Court in Pragya Singh Chandrapalsingh Thakur v. State
of Maharashtra, 2017 SCC OnLine Bom 493. The relevant portion of the
decision in Pragya Singh Chandrapalsingh Thakur (Supra) reads as under:
“[…]
47. It is pertinent to note that in the above-said decision
of Hitendra Thakur (Supra) also, the Hon’ble Apex
Court has clearly held that, “the procedure for grant of
bail is procedural in nature and can have retrospective
operation”. Therefore, we have to hold that, whatever
alleged restrictions are put on the rights of the accused
to get bail under the provisions of Section 43-D(5) of
the UAP Act, they are required to be held as procedural
in nature and, therefore, can be said to be having
retrospective effect. It is pertinent to note in this context
that, even in respect of Section 113A of the Indian
Evidence Act, which has created presumption against
the innocence of the accused, the Hon’ble Apex Court
has held in the case of Gurubachan Singh (Supra) that
the said provision has retrospective effect and can be
applied to the death of a woman that has taken place
before the amendment. The Hon’ble Apex Court has
refused to accept the argument advanced in the saidCRL.A. 1461/2025 Page 23 of 61
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case that Accused had vested right to get decided his
case as per the provisions prevailing on the date of
offence.
48. In the instant case, therefore, it has to be held that,
as the Bail Application of the Appellant is being
decided after the Amendment Act came into effect and
as the provisions relating to bail are considered to be
procedural in nature and, otherwise also, these
provisions are not, in any way, affecting the right of
the Accused to seek bail, it has to be held that sub-
section (5) of Section 43-D of UAP Act is applicable to
this case and the present application is required to be
decided within the scope of the said provisions.”
50. Thus, the bar engrafted under Section 43(D)(5) of the UAPA would be
applicable to the present case.
51. The relevant consideration before this Court is to determine whether the
conditions under Section 43(D)(5) of the UAPA are satisfied or not. The said
provision is set out below:
“43D. Modified application of certain provisions of the
Code.–(1) Notwithstanding anything contained in the
Code or any other law, every offence punishable under
this Act shall be deemed to be a cognizable offence
within the meaning of clause (c) of section 2 of the Code,
and “cognizable case” as defined in that clause shall be
construed accordingly.
XXX
(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters IV and VI of this Act shall, if in custody, be
released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being
heard on the application for such release:
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Provided that such accused person shall not be
released on bail or on his own bond if the Court, on a
perusal of the case diary or the report made under
section 173 of the Code is of the opinion that there are
reasonable grounds for believing that the accusation
against such person is prima facie true”
52. It is no longer res integra that if there are reasonable grounds to show
that the accusations against the person is prima facie true, then the accused
person is not to be released on bail. The contours of this threshold under
Section 43D(5) of the UAPA have been repeatedly discussed in several
judgments by the Supreme Court.
53. In Zahoor Ahmad Shah Watali (Supra), the Supreme Court has laid
down the various aspects that deserves consideration while considering the
bail application under the UAPA. The relevant portion of the said decision is
set out below:
“21. Before we proceed to analyse the rival
submissions, it is apposite to restate the settled legal
position about matters to be considered for deciding an
application for bail, to wit:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
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tampered with; and
(viii) danger, of course, of justice being thwarted by
grant of bail. (State of U.P. v. Amarmani Tripathi [State
of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, para 18
: 2005 SCC (Cri) 1960 (2)] .)
22. When it comes to offences punishable under
special enactments, such as the 1967 Act, something
more is required to be kept in mind in view of the
special provisions contained in Section 43-D of the
1967 Act, inserted by Act 35 of 2008 w.e.f. 31-12-2008.
Sub-sections (5), (6) and (7) thereof read thus:
“43-D. Modified application of certain provisions
of the Code.–(1)-(4)***
(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters IV and VI of this Act shall, if in custody, be
released on bail or on his own bond unless the
Public Prosecutor has been given an opportunity of
being heard on the application for such release:
Provided that such accused person shall not be
released on bail or on his own bond if the Court, on
a perusal of the case diary or the report made under
Section 173 of the Code is of the opinion that there
are reasonable grounds for believing that the
accusation against such person is prima facie true.
(6) The restrictions on granting of bail specified in
sub-section (5) is in addition to the restrictions
under the Code or any other law for the time being
in force on granting of bail.
(7) Notwithstanding anything contained in sub-
sections (5) and (6), no bail shall be granted to a
person accused of an offence punishable under this
Act, if he is not an Indian citizen and has entered the
country unauthorisedly or illegally except in very
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exceptional circumstances and for reasons to be
recorded in writing.”
23. By virtue of the proviso to sub-section (5), it is the
duty of the Court to be satisfied that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true or otherwise.
Our attention was invited to the decisions of this Court,
which has had an occasion to deal with similar special
provisions in TADA and Mcoca. The principle
underlying those decisions may have some bearing
while considering the prayer for bail in relation to the
offences under the 1967 Act as well. Notably, under the
special enactments such as TADA, Mcoca and the
Narcotic Drugs and Psychotropic Substances Act, 1985,
the Court is required to record its opinion that there are
reasonable grounds for believing that the accused is
“not guilty” of the alleged offence. There is a degree of
difference between the satisfaction to be recorded by the
Court that there are reasonable grounds for believing
that the accused is “not guilty” of such offence and the
satisfaction to be recorded for the purposes of the 1967
Act that there are reasonable grounds for believing that
the accusation against such person is “prima facie”
true. By its very nature, the expression “prima
facie true” would mean that the materials/evidence
collated by the investigating agency in reference to the
accusation against the accused concerned in the first
information report, must prevail until contradicted and
overcome or disproved by other evidence, and on the
face of it, shows the complicity of such accused in the
commission of the stated offence. It must be good and
sufficient on its face to establish a given fact or the
chain of facts constituting the stated offence, unless
rebutted or contradicted. In one sense, the degree of
satisfaction is lighter when the Court has to opine that
the accusation is “prima facie true”, as compared to the
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required under the other special enactments. In any
case, the degree of satisfaction to be recorded by the
Court for opining that there are reasonable grounds for
believing that the accusation against the accused
is prima facie true, is lighter than the degree of
satisfaction to be recorded for considering a discharge
application or framing of charges in relation to offences
under the 1967 Act…..
XXX
24. A priori, the exercise to be undertaken by the Court
at this stage – of giving reasons for grant or non-grant
of bail – is markedly different from discussing merits
or demerits of evidence. The elaborate examination or
dissection of the evidence is not required to be done at
this stage. The Court is merely expected to record a
finding on the basis of broad probabilities regarding
the
involvement of the accused in the commission of the
stated offence or otherwise.”
54. In Zahoor Ahmad Shah Watali (supra), the allegation against the
accused was that he had acted as a conduit for transfer of funds, received from
various organisations, to support separatist elements in Jammu and Kashmir.
Various violent activities were undertaken and the mandate was to promote
the cessation of Jammu and Kashmir from India. After having analysed the
material on record, the Trial court had rejected the bail applications of the
accused on the ground that the alleged offences are prima facie made out.
However, the High Court had granted bail. Upon appeal by N.I.A., the
Supreme Court had made the above observations.
55. The decision in Zahoor Ahmad Shah Watali (supra), has been
followed in several decisions including in Gurwinder Singh v. State of
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Punjab and Another (2024) 5 SCC 403 and Shaikh Javed Iqbal @ Ashfaq
Ansari @ Javed Ansari v. State of Uttar Pradesh 2024 INSC 534.
56 Accordingly, in terms of the test laid down in Zahoor Ahmad Shah
Watali (supra), this Court has to take a prima facie view on the basis of broad
probabilities, as to whether the accusations against the Appellant are prima
facie true or not.
GENERAL PRINCIPLES GOVERNING GRANT OF BAIL
57. While the threshold under Section 43(D)(5) of the UAPA Act governs
the specific test for grant of bail under the Act, the general principles
governing grant of bail cannot be lost sight of. The Supreme Court has
repeatedly laid down conditions for grant of bail in cases involving grave
offences.
58. In Prasanta Kumar Sarkar v. Ashish Chatterjee and Another (2010)
14 SCC 496, where the accused was facing trial under Section 302 of IPC, the
Supreme Court had laid down the factors that are to be borne in mind for grant
of bail. The relevant portion of the said decision reads as under:
“[…]
9. We are of the opinion that the impugned order is
clearly unsustainable. It is trite that this Court does not,
normally, interfere with an order passed by the High
Court granting or rejecting bail to the accused.
However, it is equally incumbent upon the High Court
to exercise its discretion judiciously, cautiously and
strictly in compliance with the basic principles laid
down in a plethora of decisions of this Court on the
point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
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(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.”
59. A similar enumeration of factors was made by the Supreme Court in
State of UP (through CBI) v. Amarmani Tripathi (2005) 8 SCC 21. The
Court was dealing with the bail granted by the High Court to a powerful
Minister and his wife, accused of conspiring to murder a woman with whom
the Minister was alleged to have had an extramarital relationship. While
considering the grant of bail, the Court observed as under:
“[…]
18. It is well settled that the matters to be considered in
an application for bail are (i) whether there is any
prima facie or reasonable ground to believe that the
accused had committed the offence; (ii) nature and
gravity of the charge; (iii) severity of the punishment
in the event of conviction; (iv) danger of the accused
absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing
of the accused; (vi) likelihood of the offence being
repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, ofCRL.A. 1461/2025 Page 30 of 61
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course, of justice being thwarted by grant of
bail [see Prahlad Singh Bhati v. NCT, Delhi [(2001) 4
SCC 280 : 2001 SCC (Cri) 674] and Gurcharan
Singh v. State (Delhi Admn.) [(1978) 1 SCC 118 : 1978
SCC (Cri) 41 : AIR 1978 SC 179] ]. While a vague
allegation that the accused may tamper with the
evidence or witnesses may not be a ground to refuse
bail, if the accused is of such character that his mere
presence at large would intimidate the witnesses or if
there is material to show that he will use his liberty to
subvert justice or tamper with the evidence, then bail
will be refused. We may also refer to the following
principles relating to grant or refusal of bail stated
in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7
SCC 528 : 2004 SCC (Cri) 1977] : (SCC pp. 535-36,
para 11)
“11. The law in regard to grant or refusal of bail
is very well settled. The court granting bail
should exercise its discretion in a judicious
manner and not as a matter of course. Though
at the stage of granting bail a detailed
examination of evidence and elaborate
documentation of the merit of the case need not
be undertaken, there is a need to indicate in such
orders reasons for prima facie concluding why
bail was being granted particularly where the
accused is charged of having committed a
serious offence. Any order devoid of such
reasons would suffer from non-application of
mind. It is also necessary for the court granting
bail to consider among other circumstances, the
following factors also before granting bail; they
are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature
of supporting evidence.
(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to theCRL.A. 1461/2025 Page 31 of 61
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complainant.
(c) Prima facie satisfaction of the court in
support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh [(2002) 3 SCC
598 : 2002 SCC (Cri) 688]
and Puran v. Rambilas [(2001) 6 SCC 338 : 2001
SCC (Cri) 1124] .)”
60. The factors governing grant of bail in serious offences are so well
settled that they do not require reiteration through multiple judgments. Some
of the surest factors to be considered are the nature and gravity of the offence,
severity of the punishment in the event of conviction and the likelihood of the
offence being repeated. Even confining the enquiry to these three factors, the
gravity of the offence is, by itself, an overwhelming factor, considering the
nature of the offence and the scale of casualty that has been caused in the
present case.
PRIMA FACIE CASE AGAINST THE APPELLANT
61. Having set out the legal principles governing grant of bail, it is
necessary to examine the material on record to determine whether a prima
facie case is disclosed against the Appellant.
62. The events that took place on 13th September, 2008 were no ordinary
incidents. They were a series of coordinated terrorist attacks that struck the
nation, resulting in extensive loss of human life and damage to property. The
bomb blasts on 13th September, 2008 were serial blasts executed in a
synchronized manner, at multiple locations across Delhi, within a short span
of time. All the blasts took place between 6 pm to 7 pm. The email was also
sent to various media houses, five minutes before the bomb blasts. The blasts
took place not only in Delhi, but were preceded by similar attacks across the
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country, including in Jaipur on 13th May, 2008, and bomb blasts in Bangalore,
on 25th July, 2008. The final blast took place in Ahmedabad, on 26 th July,
2008. These attacks resulted in the loss of numerous lives and injuries to
hundreds of persons. The banned terrorist organisation, ‘Indian Mujahideen’
had claimed responsibility for the Delhi and Jaipur bombings, by sending out
emails to various media outlets.
63. It is in the aforesaid backdrop that the allegations against the Appellant
are required to be examined.
64. According to the prosecution, the Appellant was the head of the media
cell of the, ‘Indian Mujahideen’.
65. The email that was sent before the blasts, along with the pdf document
attached thereto, purportedly claiming responsibility for the 13th September,
2008 blasts, clearly asserted that the identity of the true originator of the said
email would not be traceable. The email also ridiculed the cyber forensics and
investigation skills of the Indian investigative agencies. The relevant
paragraph is set out below:
“………
The INDIAN MUJAHIDEEN accepts the sole
responsibility of Delhi serial blasts, and we claim this,
through our consecutive email, which is,
unfortunately, still a mystery is very sad to see the bad
condition of your cyber forensics who have still failed
to find out our technique of sending the “Message of
Death”.
66. The forensic examination revealed that the recovered laptop and the
hard disk contained file erasing and disk wiping software tools i.e., Hex ’00’
and ‘STELLAR WIPE’, which are stated to be software tools that can
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permanently destroy electronic data.
67. The Appellant, along with co-accused Mubin Kadar Shaikh, had
purchased the laptop from which the email was transmitted. In this regard,
PW-231 identified the Appellant and the co-accused as the individuals who
had purchased the said laptops.
68. The forensic examination of the laptop that was used to send the email
and the second laptop which was recovered from co-accused, Mubin Kadir
Shaikh, revealed the presence of corresponding PDF documents which were
sent to various media outlets, along with the email. The details of the
documents have been mentioned above.
69. Further, at the time of arrest, various electronic devices including Wi-
Fi hotspot finder, a radio-frequency signal detector, a Seagate hard disk and a
spy hidden camera locator were also recovered from the Appellant.
70. The email was transmitted by prima facie hacking into the Wi-Fi of
Mumbai based company i.e., M/S Kamran Power Controls Pvt. Ltd. In this
regard, PW-156, the CEO of the said Company has deposed that the Wi-Fi of
his company was hacked on the relevant date.
71. The multiple deaths and injuries resulting from the orchestrated serial
bomb blasts demonstrate that the offences were of a grave nature, and cannot
be equated to ordinary criminal offences. These are offences which required
meticulous planning, substantial funding, accumulation of weapons, and
methodical execution pursuant to a calculated strategy. The Appellant has
been clearly identified and recognised by PW-231 , the computer shop-owner
and was found in the company of the co-accused, Mubin Kadar Shaikh.
72. Pertinently, while considering the bail application of co-accused Mubin
Kadir Shaikh in Crl.A. 343/2022 titled ‘Mubeen Kadar Shaikh v. State of
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Nct of Delhi‘, the Co-ordinate bench of this Court vide judgement dated 29th
April, 2024 has observed as under:
“[…]
30. In the present case, charge sheet was filed before the
learned Trial Court on 20.10.2010 and charge was
framed on 05.02.2011 against all the accused persons
involved in serial blast cases. The learned Trial Court
while passing order on framing of Charge dated
05.02.2011 has noted that during investigation of serial
blasts in Gujarat, Delhi, Mumbai and Ahmadabad, on
the basis of specific leads, appellant- Mubin Kadar
Shaikh was arrested from Pune, Maharashtra on
28.09.2008. The text of the alleged threatening email
was handed over to the appellant herein and his co-
accused Mansoor Agha Khan Peerboy, in a pen drive
at Pune and they both made grammatical corrections
in the said e-mail draft. Thereafter, on the same day,
appellant with co-accused Mansoor Agha Khan
Peerboy and Riaz Batkal went to Mumbai in Maruti
Esteem Car driven by Mohd. Akbar Ismile Choudhary
and at about 06:00 PM they found unsecured wifi
connection. Mansoor Agha Khan Peerboy connected
the wireless laptop and created the e-mail ID ID
[email protected] and attached the PDF file
and slide the initial and gave the subject “Message of
Death”. At about 06:25 PM the unsecured wifi
connection was hacked and the e-mail was sent to
various electronic and print media through unsecured
wifi connection of M/S Kamran Power Control Private
Limited, Mumbai.
XXX
33. Pursuant to framing of Charge, the prosecution
sought to examine 610 witnesses. While disposing of the
second bail application filed by the appellant, the
learned Trial Court vide impugned order dated
28.04.2022 took note of the allegations raised againstCRL.A. 1461/2025 Page 35 of 61
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the appellant by the prosecution and observed that 260
witnesses had already been examined, which according
to prosecution had supported its case. The learned Trial
Court further observed that even though appellant-
accused had asserted that the witnesses so far examined
had failed to prove the prosecution case yet the role of
the appellant cannot be viewed in isolation. Further
observed that prosecution witness PW-226, in his
testimony has proved recovery of laptops, hard discs,
wifi hot spot finder, RF signal detector, net connector,
spy finder camera etc. which were recovered at the
instance of co-accused Mansoor Peerbhoy. Further,
ACP Tukaram Duraphe (PW-226) has testified the CA
reports which reveal that both the e-mails were sent
through the laptops recovered from the Mubin Kadar
Shaikh and Mansoor Asghar Peerbhoy and he had
found a secure file erasing and disk wiping software
present in one of the recovered laptops. Also, another
witness (PW-207) in his evidence has stated that upon
forensic analysis of the recovered laptops, three PDF
files were found which matched with the reference
documents given with the case file i.e. the e-mails
claiming responsibility of the blasts. The analysis also
revealed about the date of over writing / wiping activity
on 13.09.2008 at about 06:48 PM soon after the serial
bomb blast. The learned Trial Court also took note of
the testimony of PW- 231 who stated that appellant
with co-accused Mansoor Asghar Peerbhoy had
purchased the laptops in question in July, 2008.
XXX
48. No doubt, the guilt of accused is required to be
proved during trial, however, in light of the fact that
appellant, who is admittedly a qualified Computer
Engineer, and has been alleged to be an active member
of Media Cell of Indian Mujahideen and as a part of
large conspiracy, had prepared the text and content ofCRL.A. 1461/2025 Page 36 of 61
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terror mail sent in the name of Indian Mujahideen and
for this purpose, he had visited Mumbai and purchased
laptops; he has been identified by the shop owner (PW-
231) from where the said laptops were purchased and
used for sending the warning email and besides the
aforesaid two laptops, a spy finder, R.F detector were
recovered from his possession. Also, as per testimony
of PW-207, the PDF files retrieved from recovered
laptops, it was emphasized on behalf of State
connecting the appellant in 2008 serial blasts. Having
considered the aforesaid, this Court finds that
appellant does not deserve to be released on bail.”
73. The clear finding of the Co-ordinate Bench of this Court in the
aforesaid judgement is that the Appellant in the present case acted in close
concert with the co-accused Mubin Kadar Sheikh, in transmitting the email
that claimed responsibility for the 13th September, 2008 serial blasts. The
Court took note of the fact that the Appellant and co-accused Mubin Kadar
Sheikh were given the emails in a pen drive at Pune, and they had made
corrections to the emails. The Bench further noted that the Appellant along
with Riyaz Bhatkal travelled to Mumbai in a Maruti Esteem car, where they
found the unsecured Wi-Fi connection of M/S Kamran Power Controls Pvt.
Ltd. and created the email ID, [email protected], and gave the
subject to the email as “MESSAGE OF DEATH”. It was also observed that
at 6.25 pm, the Wi-Fi connection of M/S Kamran Power Controls Pvt. Ltd.,
Mumbai was hacked and the email was sent to various media outlets.
Accordingly, the bail application of the co-accused Mubin Kadar Sheikh was
rejected.
74. The bail applications of the Appellant were dismissed by the Trial
Court vide order dated 23rd April, 2015 and 8th April, 2022. The relevant
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portion of the order dated 23rd April, 2015 reads as under:
“[…]
In May 2008 the accused was told that he would have to
use his knowledge to send emails regarding blasts in
Gujrat. The accused alongwith Iqbal, Mobin, Akbar and
Asif visited Mumbai about 4 times in June 2008 to look
for wireless networks to enable them to send such emails
which they located at various places. On 26.07.2008, the
accused alongwith Mohsin and others left from Pune,
reached Mumbai and sent an email at 6.40 pm from a
Wi-Fi network at Sanpada.
Investigation further revealed that on 13.09.2008 the
accused / applicant Mansoor Peerbhoy alongwith co-
accused Mobin Kadar Sheikh, Asif and Akbar left from
Pune and reached Mumbai. They located a Wi-Fi
network of M/s. Kamran at Chembur, created the e-
mail id al arbi [email protected] by giving name Arbi
Hindi and using the password -khyber123 in it and
sent the terror mail to print and other media in Delhi
about the blasts after attaching the PDF file and slide
file with the subject – Message of Death at 6.25 pm.Accused Mobin Kadar Sheikh was also arrested and
from whom two HCL laptops, wireless broadband
router, two hard disks and mobile were recovered.
From the laptop P-30 the text of the email dated
13.09.2008 was found alongwith three PDF
documents with the titles (i) “THE RISE OF JIHAD,
REVENGE OF GUJRAT. REALEASED BY INDIAN
MUJAHIDDIN IN THE LAND OF HIND” (ii) “THE
CARS THAT DEVASTED YOU THE TRUTH
REAVEALED. REALEASED BY INDIAN
MUJAHIDDIN IN THE LAND OF HIND” and (iii)
“EYE FOR AN EYE THE DUST WILL NEVER
SETTLE DOWN. REALEASED BY INDIAN
MUJAHIDDIN IN THE LAND OF HIND”. ThisCRL.A. 1461/2025 Page 38 of 61
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laptop also contained photographs of persons killed in
bomb blasts. The other laptop had presence of file
erasing and disk wiping software.
Investigation further revealed that the laptops
recovered from the accused Mobin Kadar Sheikh had
been purchased by him alongwith the applicant/
accused Mansoor Peerbhoy. During investigation the
accused / applicant Mansoor Peerbhoy had pointed out
the place of hacking Wi-Fi network in Mumbai which he
hacked to send the email on 13.9.2008.
XXX
The submissions of the Counsel for the accused would
necessarily call for rendering an inference on the
evidence collected by the police. The evidence on
record reveals a prima facie case against the applicant
/ accused.
Keeping in view that the the material on record
discloses a prima facie case against the accused and
nature and gravity of the charge and severity of the
punishment in the event of conviction , no case is made
out for grant of bail. The bail application of the
accused Mansoor Asgar Peerbhoy is accordingly
dismissed.”
75. Further, the Appellant had challenged the order dated 8th April, 2022 in
Case No. 8726/2016. The appeal preferred by the Appellant challenging the
said order, was subsequently dismissed by this Court vide order dated 29th
April, 2024 in CRL.A. 947/2023 titled ‘Mansoor Asghar Peerbhoy v. State‘.
The relevant portion of the order dated 29th April, 2024 is set out below:
“[…]
39. The allegation against the appellant are that in
respect of serial bomb blasts occurred in Delhi onCRL.A. 1461/2025 Page 39 of 61
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13.09.2008, the terrorist group “Indian Mujahedeen”
had sent an e-mail from email ID al_arbi
[email protected], claiming intense, accurate and
successive attacks exactly 5 minutes from now to various
electronic and print media of Pakistan, India and other
countries including Darul Uloob Deoband, Central
Waqf Council, Al Jamia Tussalafiah (Markazi Darul-
Uloom Varanasi) with the heading – MESSAGE OF
DEATH, which also contained pdf files of 13 pages
claiming responsibility of present and previous serial
blasts in Rajasthan, Gujarat blasts. Immediately
pursuant to such email, serial blasts in Karol Bagh, M
Block market Greater Kailash and Connaught Place
(Central Park and Barakhamba Road) took place and
three live bombs, from Central Park and Regal Cinema,
Connaught Place and one at Children Park, Delhi, were
detected.
40. During investigation, alleged email al arbi
[email protected] was found sent from IP- 59,
184.129.2 of MTNL Mumbai, which was allotted to M/s
Kamran Power Control Pvt Limited, 201-202, Eric
House, 16 Road, Chembur Mumbai. On 19.09.2008 a
raid was conducted at Flat No. 108 of L-18 Batla House,
Delhi and the surrendered accused Mohd Saif disclosed
that one “Media Group” is responsible for sending e-
mails before blasts to electronic and print media.
41. The Mumbai Police Crime Branch arrested
appellant on 28.09.2008 and a laptop, Wi-Fi hot spot
finder, R.F (Radio Frequency) signal detector, one
hard disc make SEAGATE, one spy hidden camera
locator and a reliance net connector were recovered
from his possession. Two laptops & other items were
also recovered from the co-accused Mubin Kadar
Sheikh, out of which one laptop was purchased by the
appellant. It was revealed during investigation that
appellant who was working in Yahoo India Pvt. Ltd.
and his job was to develop proxy software. In May
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2007, he along with co-accused Mubin Kadar Sheikh
had visited Hyderabad to attend course of ethical
hacking including wireless hacking. On 13.09.2008
appellant along with other accused had gone to
Mumbai and hacked Wi-fi network of Kamran Power
Ltd. at Chembur and sent the alleged e-mail.
42. The laptop and hard disc recovered from the
appellant was filled with Hex “00” which indicates use
of a secure file erasing software to erase the contents.
Even though the data could not be traced from the
laptop or router by the FSL, however, three pdf files,
including the pdf file, namely, 3.pdf and
slide.containing photographs of the persons killed in
the blasts sent in email on 13.09.2008 Delhi blast were
retrieved by FSL, Mumbai from one of the laptop of
co-accused Mubin Kadar Shaikh. Even from the
second laptop of accused Mubin Kadar Shaikh, self
generated log of secure file erasing and disk wiping
software STELLER was recovered, which was self
generated on 13.09.2008 and the 3.pdf message was
sent through alleged mail.
43. The said 3.pdf file had the video clip titled as “EYE
FOR AN EYE THE DUST WILL NEVER BE SETTLED
DOWN RELEASED BY INDIAN MUJAHIDEEN IN
THE LAND OF HIND”
44. Attention of this Court was drawn to the evidence of
PW- 231, namely, Deepak Vanigota, owner of
computer shop Modem Technology, Mumbai correctly
identified the appellant as the person who along with
co-accused retrieved by FSL, Mumbai from one of the
laptop of co-accused Mubin Kadar Sheikh had
purchased the recovered laptop.
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45. PW-207 FSL Expert has also deposed that the
documents recovered from the laptops were the same
files as sent by accused in threatening e-mail claiming
responsibility of Delhi Serial Blasts. Even though the
appellant in his present bail application raised the
objection that PW-207 had not brought his
handwritten notes before the Court at the time of his
cross-examination despite opportunity given, however,
on perusal of his cross-examination recorded on 21.
03.2015 this Court finds that this witness had stated
that
these notes were with the FSL Mumbai and so, he
could not produce them. Moreover, at the time of grant
or rejection of bail during the trial of the case, the Court
is not required to evaluate the material placed on record
as if final decision is being given but has to only form
an opinion whether the accusations against the accused
are “primafacie true”.
46. After careful consideration of the material on
record, we are unable to hold that the bar of Section
45 D( 5) UAPA does not stand attracted.
XXX
51. In view of our afore-noted discussion, the present
appeal is hereby dismissed. We, however, add that the
observations made hereinabove are tentative in nature
and learned Trial Court shall not take the same as final
expression on the merits of the case.”
76. Though the judgments passed in previous bail proceedings may not
operate as res-judicata, the facts which are set out therein, as also the facts
which are emanating from the record, prima facie demonstrate that the role of
the Appellant is concerted, conspiratorial and active.
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77. Additionally, the role of the Appellant cannot be equated with that of
co-accused Mohd. Hakim, who was granted bail. Mohd. Hakim had merely
supplied certain ball bearings and his role was completely different from that
of the Appellant. The Appellant, therefore, cannot claim parity with the
co-accused.
78. The complete analysis of the evidence is yet to be done by the trial
Court. At this stage, the Court is not required to undertake a meticulous
examination of the evidence or conduct a mini trial. However, upon a broader
consideration of the material on record, it cannot be said that the Appellant is
not guilty or that the prosecution has not been able to establish anything
against the Appellant.
79. The material which has come on record, raises serious issues which
require adjudication at trial and cannot be conclusively determined at the stage
of consideration of bail. However, having regard to the nature and gravity of
the offence, the role attributed to the Appellant, and the material placed on
record, the Court is of the view that a prima facie case exists which establishes
the guilt of the Appellant.
PROLONGED PERIOD OF INCARCERATION
80. It is also necessary to consider the issue of delay in conduct of trial and
the consequent prolonged period of incarceration, as a ground for grant of bail
in the present case. In this regard, this Court must examine the decision of the
Supreme Court in K.A. Najeeb (supra).
81. In K.A. Najeeb (supra), a three-judge bench of the Supreme Court
observed that a Constitutional Court is not strictly bound by the prohibitory
provisions of grant of bail under UAPA, and can exercise its constitutional
jurisdiction to release an accused on bail who has been incarcerated for a long
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period of time. The relevant portion of the said decision reads as under:
“17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D (5) of UAPA per-se does
not oust the ability of Constitutional Courts to grant
bail on grounds of violation of Part III of the
Constitution. Indeed, both the restrictions under a
Statue as well as the powers exercisable under
Constitutional Jurisdiction can be well harmonised.
Whereas at commencement of proceedings, 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 43-D (5) of UAPA being used as
the sole metric for denial of bail or for wholesale breach
of constitutional right to speedy trial.”
82. In K.A. Najeeb (supra), the N.I.A. had preferred an appeal against an
order of the High Court of Kerala granting bail to the Respondent, K.A.
Najeeb, who was alleged to be an active member of the Popular Front of India
and one of the main conspirators in a premeditated attack on Professor T.J.
Joseph of Newman College, Thodupuzha, in the course of which the victim’s
right palm was severed with choppers. The conspiracy arose over a question
paper considered objectionable to a particular religion. At the outset, the
Supreme Court had observed as under:
“8. It must be emphasised at the outset that there is a
vivid distinction between the parameters to be applied
while considering a bail application, vis-Ã -vis those
applicable while deciding a petition for its
cancellation.”
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83. Accordingly, the Supreme Court had considered that the parameters for
cancellation of bail are different and distinct from the parameters for grant of
bail. It was in this context that the Supreme Court observed that the length of
the trial would be a material consideration. In the said case, more than 276
witnesses remained to be examined, and 13 co-accused already convicted, had
each received sentences of not more than 8 years. Therefore, there was a
reasonable estimation that K.A. Najeeb, if convicted, would also be granted
sentence within the same period. In fact, the Supreme Court observed as
under:
“18. Adverting to the case at hand, we are conscious of
the fact that the charges levelled against the
respondent are grave and a serious threat to societal
harmony. Had it been a case at the threshold, we would
have outrightly turned down the respondent’s prayer.
However, keeping in mind the length of the period spent
by him in custody and the unlikelihood of the trial
being completed anytime soon, the High Court appears
to have been left with no other option except to grant
bail. An attempt has been made to strike a balance
between the appellant’s right to lead evidence of its
choice and establish the charges beyond any doubt and
simultaneously the respondent’s rights guaranteed
under Part III of our Constitution have been well
protected.”
84. Thus, the Supreme Court itself observed that had the matter arisen at
the threshold stage of the proceedings, the Respondent’s prayer for bail would
not have merited acceptance. The grant of bail in that case was significantly
influenced by the peculiar circumstances then prevailing, including the fact
that the Respondent had already been enlarged on bail by the High Court of
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Kerala on 23rd July, 2019 and had remained at liberty for a considerable
period, by the time the appeal was decided on 1st February, 2021. The prospect
of re-incarcerating the Respondent after such passage of time was, therefore,
a relevant consideration that weighed in the said judgment.
85. Be that as it may, the decision of a two-judge bench of the Supreme
Court in Gulfisha Fatima (supra) makes it clear that insofar as prolonged
period of incarceration is concerned, contextual factors such as the role
attributed to the accused, the nature of the allegation, the stage of proceedings,
realistic trajectory of trial, causes contributing to delay and the risk upon
release must also be considered. In this regard, the Court had observed as
under:
“[…]
42. The approach of addressing delay-related concerns
through calibrated judicial supervision, rather than
automatic enlargement on bail, stands reinforced by the
decision of this Court in Union of India v. Saleem
Khan. In that case, despite the accused having remained
in custody for over five years and the trial not having
commenced, this Court declined to interfere with the
rejection of bail qua one accused, while upholding bail
granted to another, thereby reiterating that delay-based
pleas must necessarily be adjudicated on an accused-
specific footing. Significantly, even while
acknowledging the constitutional imperative of a
speedy trial, the Court did not eclipse the statutory
rigour under Section 43D(5) of the UAPA but instead
directed expeditious conclusion of the trial and
cautioned against any conduct on the part of the
accused that may further protract the proceedings. The
decision thus affirms that prolonged custody, though a
matter of concern, does not operate as an automaticCRL.A. 1461/2025 Page 46 of 61
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ground for grant of bail where the statutory threshold
continues to be attracted.
43. Viewed cumulatively, the record does not support
the absolute proposition that the appellants have
remained “innocently incarcerated” without any
contribution to delay, nor does it disclose a situation
where the delay is so wholly unjustified as to override
the statutory embargo contained in Section 43D(5). The
appropriate constitutional response, at this stage, lies
in ensuring vigilant oversight of the trial and its
expeditious progression, rather than in eclipsing the
statutory mandate governing bail in offences of the
present nature. The plea of delay in the facts of the
particular case, therefore, does not warrant
enlargement on bail, though it justifies continued
judicial emphasis on the timely conduct of the
proceedings.
44. It is in this sense that the plea of delay must first be
examined to see whether it arises in a manner that
warrants constitutional scrutiny of continued custody.
Broadly stated, the Court must consider whether the
custody undergone is substantial, whether the
proceedings have made meaningful progress, and
whether there exists a realistic prospect of conclusion
of trial within a reasonable period. The Court must
also take note of the causes contributing to delay,
including whether delay is attributable to the inherent
complexity of the prosecution or to the conduct of
parties, including the accused.
XXX
46. One such consideration is the gravity of the alleged
offence in its statutory setting. Under the UAPA,
Parliament has legislatively characterised certain
conduct as implicating the security of the State and theCRL.A. 1461/2025 Page 47 of 61
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peace of society. That legislative characterisation does
not conclude the judicial inquiry, but it is not
constitutionally irrelevant. It forms part of the context in
which the Article 21 claim is assessed.
47. A closely allied consideration is the role attributed
to the accused. Prosecutions under the UAPA may
allege varying degrees of participation, ranging from
peripheral acts to strategic, organisational, or
ideological centrality. The constitutional significance
of prolonged incarceration cannot be assessed
uniformly for all accused regardless of role. Where the
attribution suggests a central or organising role in the
alleged design, the need for circumspection before
constitutional intervention displaces a statutory
embargo is correspondingly greater. Conversely, where
the role is peripheral or episodic, prolonged
incarceration may more readily assume a punitive
character.
48. Another consideration is the prima facie strength
of the accusation at the limited threshold contemplated
by Section 43D(5). At this stage, the Court does not
weigh evidence, test defences, or conduct a mini trial.
Yet, the constitutional inquiry cannot proceed as if all
allegations are identically situated. Whether the
prosecution material, taken at its highest, discloses a
prima facie nexus between the accused and the
statutory ingredients is a circumstance that informs
the assessment of continued detention.
49. Consideration must also be given to the integrity of
the trial process and the risks associated with release.
Depending on the nature of the case, these may include
the possibility of influencing witnesses, tampering with
evidence, or undermining the fairness of the
proceedings. In prosecutions alleging organised
activity, the assessment of such risks may differ fromCRL.A. 1461/2025 Page 48 of 61
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that in ordinary criminal cases. This is not to presume
guilt, but to recognise that bail decisions are necessarily
forward-looking in terms of ensuring an effective trial.
XXX
51. There is a further constitutional aspect that warrants
articulation. Article 21 protects individual liberty. It
also, within the same guarantee of life, reflects the
State’s obligation to protect the life and security of the
community. In prosecutions alleging threats to public
order and national security, the Court cannot be
unmindful that both dimensions are engaged. The
constitutional order is not served by an approach that
treats liberty as the sole value and societal security as
peripheral. Both must be accommodated through
reasoned adjudication.
52. The consequence of the above is that
Najeeb(supra) must be understood as a principled
safeguard against unconscionable detention.
Prolonged incarceration is a matter of serious
constitutional concern and carries great weight. It is
not, however, the sole determinant. The Court must
consider, in totality, whether continued detention has
become constitutionally unjustifiable, having regard to
the role attributed, the statutory context, the limited
prima facie material, the trajectory of the trial, the
causes of delay, and the availability of intermediate
remedies.
53. This approach does not dilute Article 21. It gives
Article 21 structured content in a field where the
Constitution itself recognises competing interests. Nor
does it render Section 43D(5) absolute. It recognises
that statutory restraint must yield in an appropriate
case where detention becomes punitive by reason of
unreasonable and unjustified delay. What it excludesCRL.A. 1461/2025 Page 49 of 61
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is a mechanical override based on time alone, divorced
from legal context.
XXX
56. It therefore becomes necessary to state, with clarity,
the governing approach. In prosecutions alleging
offences which implicate the sovereignty, integrity, or
security of the State, delay does not operate as a trump
card that automatically displaces statutory restraint.
Rather, delay serves as a trigger for heightened
judicial scrutiny. The outcome of such scrutiny must
be determined by a proportional and contextual
balancing of legally relevant considerations, including
(i) the gravity and statutory character of the offence
alleged, (ii) the role attributed to the accused within the
alleged design or conspiracy, (iii) the strength of the
prima facie case as it emerges at the limited threshold
contemplated under the special statute, and (iv) the
extent to which continued incarceration, viewed
cumulatively in the facts of the case, has become
demonstrably disproportionate so as to offend the
guarantee of personal liberty under Article 21.”
86. The aforesaid observations make it clear that while prolonged
incarceration is a significant consideration, it cannot be viewed in isolation
and must be assessed in conjunction with the other contextual factors
discussed above.
87. Further, in Gulfisha Fatima (supra), the Supreme Court had
interpreted the decision in K.A. Najeeb (supra) and had observed as under:
“[…]
61. To read Najeeb (supra) as mandating bail solely on
account of prolonged incarceration, irrespective of the
statutory context or the nature of the allegations, wouldCRL.A. 1461/2025 Page 50 of 61
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be to attribute to the decision a consequence it neither
intended nor supports. Such a construction would also
lead to an interpretive absurdity, whereby a special
statute enacted by Parliament to address offences
implicating the sovereignty, integrity, and security of the
State would stand effectively neutralised by the mere
passage of time, even at a pre-trial stage. Such an
outcome cannot be countenanced in constitutional
adjudication. Accordingly, the finding in
Najeeb(supra) is properly situated as a constitutional
safeguard to be invoked in appropriate cases, and not
as a mathematical formula of universal application.”
88. Recently, a two-judge bench of the Supreme Court in Syed Iftikhar
Andrabi (Supra) has observed that prolonged period of incarceration and
delay in the conclusion of trial remain major considerations, even in matters
arising under the UAPA, and that the rigours of Section 43(D)(5) of the UAPA
does not divest Constitutional Courts of their power to grant bail. In this
regard, the Supreme Court has observed as under:
“[…]
27.9. Therefore, the caution of Najeeb is that
continued incarceration cannot go unabated by a mere
discharge by the State of the prima facie standard
under Section 43-D(5). The judgment explicitly held
that Section 43-D(5) will ‘melt down’ where prolonged
incarceration and delayed trial produce a violation of
Article 21. The constitutional inquiry in Najeeb
therefore operated independent of, and
notwithstanding, the statutory embargo of Section 43-
D(5) in the realm of constitutional principles. That
being the case, the formulation of Gurwinder becomes
difficult to follow. Once the three-Judge Bench in
Najeeb recognised that constitutional courts retain the
authority to intervene despite the existence of a primaCRL.A. 1461/2025 Page 51 of 61
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facie case against the accused where prolonged
incarceration and delayed trial would breach Article
21, the statutory embargo of Section 43-D(5) could no
longer be treated as the gateway through which the
prayer of bail must first pass.
27.10. As a matter of law, nothing further need be said
except that in any case, constitutional courts can
always intervene to grant bail despite satisfaction of
prima facie threshold under Section 43-D(5), and the
section need not control the grant of bail if the accused
person’s liberty is infringed for a prolonged period of
time. The power of the constitutional court to grant such
a prayer cannot in our view be diminished by exercise
of legislative power.
27.11. The holding in Najeeb was never that mere
passage of time automatically entitles the accused to
bail. Instead, the larger Bench recognised that where
incarceration becomes unduly prolonged and the trial
is unlikely to conclude within a reasonable time, the
continued application of Section 43-D(5) becomes
constitutionally suspect given the mandate of Article
21. In that sense, Najeeb articulated a constitutional
limitation on the operation of the statutory embargo of
Section 43-D(5).
XXX
33. The emphasis in Najeeb was constitutional in
nature: it was directed towards preventing Section 43-
D(5) from overpowering Article 21 considerations in
cases of gross delay and prolonged incarceration. The
constitutional force of Najeeb lies in its restoration of
the hierarchy between a statute, namely, the UAP Act,
and the Constitution. Section 43-D(5) remains
subordinate to Article 21 at all times and a
constitutional court need not hold back bail to the
accused in the garb of Section 43-D(5).
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XXX
35. The often invoked phrase ‘bail is the rule and
jail is the exception’ is not merely an empty statutory
slogan flowing from the CrPC as Gurwinder has
stated. It is a constitutional principle flowing from
Articles 21 and 22 of the Constitution and the
presumption of innocence which is the cornerstone of
any civilised society governed by the rule of law.
Statutes may undoubtedly calibrate the manner in which
that principle is applied, particularly in cases involving
national security or terrorist offences for which the UAP
Act is meant, but those cannot altogether invert the
constitutional relationship between liberty and
detention. The statutory embargo of Section 43-D(5)
must remain a circumscribed restriction that operates
subject to the guarantee of Articles 21 and 22 of the
Constitution. Therefore, we have no manner of doubt
in stating that even under the UAP Act, ‘bail is the rule
and jail is the exception’; of course, in an appropriate
case, bail can be denied having regard to the facts of
that particular case.
36. As we have noted above, several subsequent
decisions of this Court, rendered after Gurwinder,
have continued to apply the approach articulated in
Najeeb in granting bail under the UAP Act on grounds
of prolonged incarceration, gross delay in conclusion
of trial, and the absence of any realistic possibility of
the trial concluding in the near future.
37. The logic underlying all these judgments
traces back to Najeeb, which is now the law of the land
governing the grant of bail under the UAP Act in a
situation of prolonged detention. In that context, it is
noteworthy that while Gulfisha Fatima relied on
Gurwinder to adopt a narrower reading of Najeeb,CRL.A. 1461/2025 Page 53 of 61
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neither Gulfisha Fatima nor Gurwinder engage with
this subsequent line of authority of case law.
38. Thus it is clear beyond doubt that the
preference for bail, or the often invoked principle ‘bail
is the rule and jail is the exception’ flows from the
constitutional primacy of personal liberty under
Article 21 and, therefore, cannot be displaced by
legislation.
39. In that spirit, we make it clear that Najeeb is
binding law entitled to the protection of stare decisis.
It cannot be diluted, circumvented, or disregarded by
trial courts, High Courts or even by Benches of lower
strength of this Court.”
89. Thus, the Supreme Court in Syed Iftikhar Andrabi (Supra) has held
that the principles laid down K.A. Najeeb (supra) continue to hold the field
and constitute binding law. The Court has further clarified that the ratio of
K.A. Najeeb (supra) cannot be diluted, circumvented, or disregarded by Trial
Courts, High Courts, or by Benches of lesser strength, and that the
constitutional courts retain the power to grant bail, notwithstanding the
restrictions contained in Section 43-D(5) of the UAPA, where continued
incarceration becomes constitutionally unjustifiable.
90. Subsequent to the decision in Syed Iftikhar Andrabi (Supra), the
Supreme Court in Tasleem Ahmed (Supra), while considering the interplay
between prolonged incarceration, the constitutional guarantee under Article
21, and the statutory restrictions contained in Section 43-D(5) of the UAPA,
referred the issue to a larger Bench and observed as under:
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“[…]
21. The question, therefore, is not whether Article 21
survives Section 43D(5). It undoubtedly does. The true
question is how Article 21 is to be applied in a statutory
field where Parliament has consciously imposed
restrictions on bail in respect of offences alleged to
affect the security of the State and the stability of civic
life.
22. We clarify that nothing in this order is intended
to whittle down, dilute, read narrowly, or detract from
the authority of K.A. Najeeb. On the contrary, the
present reference is necessitated because K.A. Najeeb
deserves application with the clarity, consistency and
institutional fidelity which a binding three-Judge
Bench decision commands. If a coordinate Bench has
expressed reservations on the manner in which
another coordinate Bench has applied K.A. Najeeb,
the proper answer is not further reservation. The
proper answer is authoritative resolution.
23. We are, therefore, of the considered view that the
issue requires consideration by Bench to be constituted
by the Hon’ble Chief Justice of India. This is necessary
not merely for the present batch of matters, but to settle
the correct approach to bail under special statutes
where Article 21, prolonged incarceration and
statutory restrictions intersect.
24. Having regard to the importance of the issue, we are
of the view that the questions requiring consideration
need not be confined to the correctness of any one
decision. The controversy raises a broader question
concerning the manner in which constitutional courts
are to approach bail where prolonged incarceration is
asserted in prosecutions governed by special statutesCRL.A. 1461/2025 Page 55 of 61
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imposing restrictive bail conditions.In this background
it would be imperative or in other words necessary for
the appropriate bench that may be constituted by the
Hon’ble Chief Justice of India, to clarify or expound
the position of law laid down in K.A. Najeeb‘s case,
particularly in the backdrop of the rigour of 43D (5)
which imposes restriction consciously and has
received the assent of the Parliament, which obviously
was brought in keeping in mind the valuable right
enshrined in Article 21 of the Constitution of India.”
91. The aforesaid observations make it clear that the broader question
concerning the manner in which constitutional courts are to balance prolonged
incarceration against the statutory restrictions contained in Section 43-D(5) of
the UAPA is presently under consideration before a larger Bench of the
Supreme Court. Nevertheless, the principles emerging from K.A. Najeeb
(supra), provide sufficient guidance for determining the present appeal. The
issue, therefore, is whether, in the facts of the present case, the prolonged
period of incarceration undergone by the Appellant outweighs the other
relevant considerations governing the grant of bail.
CONCLUSION
92. Applying the aforesaid principles to the facts of the present case, the
Court is required to consider not merely the prolonged period of incarceration,
but also the various other factors cumulatively. The Court is not to conduct a
mini-trial at this stage, and has to only consider the broad probabilities.
93. The present case concerns synchronised terrorist attacks which were
executed pursuant to a larger conspiracy. The serial bomb blasts of 13th
September, 2008 left a trail of devastation in Delhi, resulting in the death of
26 persons, injuries to 135 persons and extensive destruction of property. The
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blasts were preceded by the email transmitted minutes before the explosions,
claiming responsibility in the name of the banned terrorist organisation,
‘Indian Mujahideen’. The scale of the carnage, the nationwide panic that
ensued, and the cold deliberateness with which the organisation publicly
announced the attacks, even before they were carried out, together reflect an
offence of grave nature.
94. The Appellant is an educated computer professional with specialised
knowledge of cyber security and hacking techniques, and was fully aware of
the impact of his conduct. He is alleged to have headed the media cell of the
‘Indian Mujahideen’ and, as is evident from the material brought on record,
was prima facie centrally involved in the transmission of the email.
95. The prima facie material on record, comprising of the PDF document
attached to the email; the sophisticated file-erasing software deployed to
permanently destroy evidence on the recovered electronic devices; the
identification of the Appellant and the co-accused, by the computer shop
owner PW-231, as the purchasers of the laptops; the hacking of the Wi-Fi
network of M/s Kamran Power Controls Pvt. Ltd., Mumbai to transmit the
email, as confirmed by PW-156; and the recovery of electronic devices at the
time of his arrest, collectively establishes, prima facie, that there is a case
against the Appellant.
96. The scale of coordination that the execution of these serial blasts
demanded, is itself a significant consideration. The ‘Indian Mujahideen’,
unequivocally claimed responsibility for the attacks and did not hesitate in
sending emails, five minutes prior to the blasts. Such level of coordination,
planning, funding, logistics and real time communication, was possible only
through deliberate and skilled deployment of technology. The Appellant, was
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prima facie, at the centre of this incident.
97. Further, the material on record indicates that considerable efforts were
undertaken to ensure that the origin of the transmission of the email remained
untraceable. The Appellant’s technical expertise combined with the
leadership position attributed to him within the ‘Indian Mujahideen’, prima
facie suggests that he is extremely well connected with the said organisation
and its network, and the propensity of him getting involved in similar
activities upon release, is extremely high. In the case of persons such as the
Appellant, who are alleged to be part of banned terrorist organisations, there
exists a continuing and real threat that they are likely to indulge in similar
activities upon release. This consideration, along with the prima facie material
on record, and the role attributed to the Appellant, is a factor that weighs
heavily against the grant of bail.
98. Furthermore, the allegations against the Appellant are not confined to
an isolated criminal act, however, to his prima facie conduct which formed
part of a larger terrorist conspiracy, having serious implications for the
security, integrity and sovereignty of the nation. In this context, it is apposite
to refer to the recent decision of the Supreme Court in State of Punjab v.
Balraj Singh @ Billa, 2026 INSC 618 dated 2nd June, 2026, wherein, while
considering the grant of bail in a matter involving organised criminal activity,
having serious ramifications for national security, the Court observed as
under:
“[…]
22. However, we note that recently this Court in
Tasleem Ahmed v. State Govt. of NCT of Delhi has
referred the question concerning the approach ofCRL.A. 1461/2025 Page 58 of 61
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constitutional Courts in bail matters under special
statutes, where “Article 21, prolonged incarceration
and statutory restrictions intersect”. In view of the said
reference, we do not wish to deliberate on this issue
further, save and except that in our view paramount
consideration is nothing but interest of justice for all.
Should there be any conflict between the sovereignty
of country and personal liberty, undoubtedly, the
former shall prevail, particularly, when a war is waged
against the nation, be it in the form of supply of drugs,
which vitally affects the national economy and health of
the people.”
99. In terms of the above decision, the Court has observed that where
considerations of personal liberty come into conflict with the sovereignty,
integrity and security of the nation, the latter must necessarily prevail,
particularly in cases involving offences of the present nature. Though the
aforesaid observations were rendered in the context of offences relating to
drug trafficking, the underlying principle enunciated therein is of broader
significance, and would be applicable in the present case as well, which
involves allegations of organised terrorist activity.
100. It is also relevant to note that the present case concerns a larger
conspiracy involving several accused persons. Out of the accused facing trial
in the present case, 14 co-accused continue to remain in judicial custody, only
the co-accused Mohd. Hakim has been enlarged on bail. The scale of the
alleged conspiracy, the number of accused involved, and the nature of the
offences are factors which cannot be ignored while assessing the Appellant’s
prayer for bail.
101. In addition, the Court cannot lose sight of the fact that the Appellant is
a qualified computer professional. The role attributed to him is not that of a
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peripheral participant, but of a person who, according to the prosecution,
occupied a position of significance within the media cell of the, ‘Indian
Mujahideen’. For such brazen and blatant of acts of terrorism, for which the
Appellant has been charged, the allegations against the Appellant pertain to
offences of the gravest nature, for which the law prescribes severe
punishments, extending even to the death penalty in appropriate cases.
102. Bearing in mind the gravity of the offences involved, which are serial
bomb blasts, the qualifications of the Appellant, the role of the Appellant as a
media cell head of the ‘Indian Mujahideen’, and the actual death toll that
occurred, the long period of incarceration, in the opinion of the Court, would
not by itself be sufficient to grant bail to the Appellant.
103. There is no doubt that the Appellant has remained in custody for a
considerable period as an undertrial prisoner. However, it is pertinent to note
that the trial is presently at its fag end and has reached the concluding stage.
Releasing the Appellant at this juncture, when the cross-examination of the
remaining two witnesses is yet to be completed, could have an adverse impact
on the ongoing trial proceedings.
104. Finally, while considering the prayer for bail, the Court has to bear in
mind not merely the right to life of the Appellant, but also the adverse impact
that Appellant’s release may have on the right to life and safety of common
citizens, having regard to the role attributed to him in the heinous crimes with
which he has been charged.
105. In view of the foregoing discussion, the Court is of the considered
opinion that the present case is not a fit one for grant of bail.
106. Needless to add, the observations made in this order shall not have a
bearing on the final adjudication of the case before the Trial Court. The Trial
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Court shall proceed and conclude the trial within a period of eight months, as
directed by the Supreme Court vide order dated 30th April, 2026 in SLP (Crl.)
3527/2022.
107. The appeal is accordingly dismissed. All pending applications, if any,
also stand disposed of.
PRATHIBA M. SINGH
JUDGE
MADHU JAIN
JUDGE
JULY 07, 2026
MR/SM
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