Bombay High Court
Pawankumar Fakirchand Uike vs The State Of Maharashtra Through Pso Sub … on 20 July, 2026
2026:BHC-NAG:9138-DB
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.127 OF 2024
Pawankumar Fakirchand Uike,
aged about 33 years, occupation: service,
r/o Primary Health Center, Kamlapur,
taluka Aheri, district: Gadchiroli,
(presently at District Prison, Chandrapur). ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Police Station Officer,
Sub Police Station, Repanpalli,
district: Gadchiroli. ..... Respondent.
================================
Shri R.M.Daga, Counsel for the Petitioner.
Shri M.J.Khan, Addl.P.P. for the Respondent/State.
================================
CORAM : URMILA JOSHI-PHALKE & NIVEDITA P.MEHTA, JJ.
CLOSED ON : 13/07/2026
PRONOUNCED ON : 20/07/2026
JUDGMENT :
(Per : Urmila Joshi-Phalke)
1. The present appeal has been filed by the appellant to
challenge order dated 9.6.2023 passed by learned Additional
Sessions Judge, Gadchiroli in Criminal Bail Application
No.18/2023 under Section 21(4) of the National Investigation
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Agency Act, 2008 and seeking bail in connection with Crime
No.2/2022 registered at police station Repanpalli, district
Gadchiroli for offences under Sections 10, 13 18, 20, and 39
of the Unlawful Activities (Prevention) Act, 1967 (for short,
“the UAP Act“) and under Section 120-B read with 34 of the
IPC and under Sections 3 and 25 of the Indian Explosives Act
and under Section 135 of the Maharashtra Police Act.
2. The appellant is arrayed as accused in connection with
Crime No.2/2022 registered on the basis of report lodged by
PSI Pandurang Hake attached to the Repanpalli Police Station,
district Gadchiroli. It is alleged that during mid-nights of
27.7.2022 to 3.8.2022, “Naxals’ Martyr Week” was scheduled
to be celebrated. On 27.7.2023, when the informant along
with SRPF Constables were performing night ambush duty,
during search of forest area, three persons were found having
suspicious activities. Therefore, said three persons were
caught and their personal search was carried out as well as
their bags were searched and during the search, banners and
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pamphlets encouraging propagation of the “Naxal
Movements” were found. On enquiry, said three persons
disclosed their names as Pawankumar Fakirchand Uike; i.e.
the present appellant; Praful Devanand Bhat; and Anil
Gokuldas Bhat.
3. On the basis of the said report, the police have
registered the crime vide Crime No.2/2022.
4. During the investigation, the investigating officer has
recorded relevant statements of witnesses and after
completion of the investigation, submitted chargesheet
against the appellant.
5. During the investigation, on disclosure statement by
the appellant, memory-card, mobile laptop, and other
electronic instruments are recovered as well as Barrels;
Maxims; and Literature propagating “Naxal Movement” are
recovered. Co-accused Praful Bhat and Anil Bhat also made
…..3/-
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their statements and at their instance also, articles were
recovered.
6. During the investigation, it was transpired that the
appellant is involved in procuring articles for preparation of
explosives through “Flip-Cart” and “Amazon” and they
supplied the articles to the “Naxals”. Moreover, he was also
involved in monetary transactions with other “Naxals”
especially absconding “Naxals’ Commander Vikas”. The
information sought from platforms like; “FlipCart” and
“Amazon” revealed that the appellant is procuring the said
articles since the year 2019 to provide it to the “Naxals”. The
articles recovered from the appellant were forwarded to the
Regional Forensic Science Laboratory, Nagpur. The mirror
image prepared revealed the Literature list against the
Government and communication with Senior Commanders of
the “Naxals”.
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7. Thus, various statements are recorded and the entire
investigation disclosed involvement and, therefore, the
chargesheet was filed against the appellant.
8. The appellant was arrested on 28.7.2022 itself. He
preferred Criminal Application No.18/2023 for grant of bail
before the Court of Sessions at Gadchiroli. Learned
Additional Sessions Judge at Gadchiroli rejected the said
application for grant of bail.
Hence, the present appeal.
9. The present appeal for grant of bail is strongly opposed
by the State on grounds that during the investigation,
connection of the appellant with other members working as
“Naxals” was established. The incriminating articles seized at
the instance of the appellant also show his connection with
the other “Naxals.” It further revealed during the
investigation that the appellant has procured material from E-
commerce platforms like, “FlipCart” and “Amazon” since the
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the year 2019 to prepare explosives. He was also involved in
assisting “Naxals” by way of monetary help. The offending
Literature showing his involvement in assisting “Naxals’
Activities” is also revealed. Thus, considering the prima facie
material, the application for grant of bail is rightly rejected
and no interference is called for.
10. Heard learned counsel Shri R.M.Daga for the appellant
and learned Additional Public Prosecutor Shri M.J.Khan for
the State.
11. Learned counsel for the appellant submitted that from
the last four and half years, the appellant is in jail. There is
no much progress in the trial and there is no possibility of
disposal of the case in near future. He further submitted that
the appellant was Medical Practitioner. He was in contact
with villagers and providing medicines. Merely on suspicion,
he is arrested. He submitted that now there is inordinate
delay in the trial and a consistent view is taken by the Hon’ble
Apex Court in various judgments that, “if fundamental rights
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of accused, as to speedy trial, is violated, he shall be released
on bail irrespective of nature of the offence” . Other two
accused are already released on bail. In view of that, the
appeal deserves to be allowed.
12. In support of his contentions, learned counsel for the
appellant placed reliance on following decisions:
(1) Syed Iftikhar Andrabi vs. National
Investigation Agency, Jammu, in SLP (Criminal)
No.1090/2026; decided on 18.5.2026;
(2) Tasleem Ahmed vs. State Government of NCT
of Delhi, reported in 2026 LiveLaw (SC) 533;
(3) Javed Gulam Nabi Shaikh vs. State of
Maharashtra and anr, reported in (2024)9 SCC
813;
(4) Thwaha Fasal vs. Union of India, reported in
Criminal Appeal No.1302/2021 decided on
28.10.2021;
(5) Athar Parwez vs. Union of India, Criminal
Appeal No.5387/2024 decided on 17.12.2024;
and
(6) Sheikh Javed Iqbal alias Ashfaq Ansari alias
Javed Ansari vs. State of Uttar Pradesh, reported
in (2024)8 SCC 293.
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13. Per contra, learned Additional Public Prosecutor for the
State submitted that there is a bar under Section 43-D(5) of
the UAP Act to release the appellant on bail. He submitted
that as far as the delay in trial is concerned, mere reason
“delay” in trial is not sufficient to release the accused on bail.
He submitted that now issue is already referred to the Larger
Bench. In view of that, the appeal deserves to be dismissed.
He has taken us through various judgments of the
Hon’ble Apex Court and submitted that the appellant is not
entitled to be released on bail.
He further submitted that ground of parity is also not
available to the appellant considering roles are different. To
the extent of ground of parity, he placed reliance on the
decision in the case of Special Leave Petition (Cri.)
No.8865/2025 (Sagar vs. State of UP & anr), decided
28.112025 wherein it is held that, “perusal of various factors
and in view of the decision in Ramesh Bhavan Rathod vs.
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Vishanbhai Hirabhai Makwana (Koli) and anr, reported in
reported in (2021)6 SCC 230, while utilizing parity as a
ground for bail, the same must focus on the role of the
accused and cannot be utilized solely because another accused
person was granted bail in connection with the same offence,
and neither can this ground be claimed as a matter of right.”
As far as merits of the matter is concerned, he
submitted that the entire investigation papers show prominent
role of the appellant in the activities like involvement of the
appellant in providing assistance to “Naxals”. Various
incriminating articles and material are found with the
appellant showing his involvement in “Naxals’ Activities.”
Thus, considering the role of the appellant, the trial court has
rightly rejected the application granting bail.
He submitted that right guaranteed under Article 21 of
the Constitution of India is not an absolute right.
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He submitted that considering involvement of the
appellant in the crime against the National Security, the
appellant is not entitled for any liberty. The liberty cannot be
given to persons who threaten the interest of the society.
In view of that, the appeal deserves to be dismissed.
14. In support of his contentions, learned Additional Public
Prosecutor for the State placed reliance on following
decisions:
(1) Tasleem Ahmed vs. State Government of NCT
of Delhi (supra);
(2) SLP (Cri.) No.5075/2026 (State of Punjab vs.
Gurjit Singh @ Geetu), decided 24.4.2026; and(3) Gurwinder Singh vs. State of Punjab and anr,
reported in (2024)5 SCC 403.
15. On hearing both sides and perusing the entire
investigation papers, it reveals that the crime was registered
on the basis of the report lodged by PSI Pandurang Hake who
was on ambush duty along with SRPF Constables. The Case
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Diary entry dated 27.7.2022 shows that when he was on
ambush duty, he suspected three persons and, therefore, with
the help of SRPF Constables, he took their personal search
and various articles, pamphlets, and banners were seized from
personal search of the appellant as well as from the co-
accused persons. It revealed during the investigation that the
appellant is not only involved in supplying the material to
“Naxals” but also he was found encouraging the propagation
of “Naxal Movements” in that area. During the investigation,
his laptop, mobile phone, and memory card are seized
wherein also incriminating articles were found. The said
articles were seized on the basis of his disclosure statement
made in presence of panchas. During the investigation, the
Investigating Officer further recorded statements of relevant
witnesses especially statements of Santosh Naitam and
Santosh Tatikondawar whose statements also show that the
appellant was involved in providing the material to “Naxals”.
Not only that, he was having connection with the Commander
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of “Naxal Organization” namely Vikas @ Vijendra. The
statements disclose that witnesses met the said Commander
through the appellant. Similar is the statement of Santosh
Naitam, which also shows that on the pretext of treating
villagers, the appellant was providing Literature to members
of “Naxal Organization” to propagate “Naxals’ Activities”. The
statement of this Santosh further discloses that he was also
instigated by the appellant for participating in the said
“Naxals’ Activities”. From the investigation papers, it further
reveals that the appellant has used platforms like, “FlipCart”
and “Amazon” to secure some material to provide the same to
members of “Naxal Organizations”.
Thus, involvement with “Naxal Organizations” as well
as providing the material Literature to the said organizations
is established.
16. Thus, there is a prima facie material on record to
show that the appellant is connected with “Naxals’ Activities”.
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17. The ground raised by the appellant is that there is
delay in trial. To address this issue, we have gone through the
entire record of the trial court. Daily Status Report was also
obtained and it revealed that sanction was granted by the
Government on 3.7.2023. Thereafter, the appellant was
released on temporary bail for 5 days for a period from
19.10.2024 to 23.10.2024 by order dated 7.10.2024. He was
directed to surrender on 24.10.2024. However, the appellant
has not surrendered and was absconding and, therefore,
charge could not be framed from 24.10.2024 till 2.1.2025.
The record further shows that as appeals were preferred by
the co-accused, the record was sent to this court on 3.4.2024
and again it was sent back on 9.9.2024. Thereafter,
temporary bail was granted to the appellant. The appellant
has not surrendered on 24.10.2024 and surrendered directly
on 2.1.2025. Thus, it is apparent that there is delay in
framing the charge due to absence of the appellant.
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18. Learned counsel for the appellant placed reliance on
the decision in the case of Union of India vs. K.A.Najeeb,
reported in (2021)3 SCC 713.
19. The question is, whether provisions under Section 43-
D(1) and 43-D(5) of the UAP Act for grant of bail are satisfied
are not. The said provisions read as under:
“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.
……….
……….
(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
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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.”
20. It is no longer res integra that if there are reasonable
grounds to show that accusations against person are prima
facie true, accused person is not to be released on bail. These
twin conditions under Section 43-D(5) of the UAP Act have
been repeatedly discussed in several judgments of the Hon’ble
Apex Court.
21. In the case of National Investigation Agency vs. Zahoor
Ahmad Shah Watali, reported in (2019)5 SCC 1, the Hon’ble
Apex Court has laid down various aspects that deserve
consideration while considering bail application under the
UAP Act. The relevant portion reads as under:
“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…..15/-
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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, of course, of justice
being thwarted by grant of bail. (State of U.P. through
CBI Vs. Amarmani Tripathi 2005)8 SCC 21.
24. A priori, the exercise to be undertaken by the Court
at this stage of giving reasons for grant or nongrant of
bail is markedly different from discussing merits or
demerits of the 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.”
22. In the case of Gurwinder Singh vs. State of Punjab and
anr (supra), relied upon by learned Additional Public
Prosecutor for the State, the Hon’ble Apex Court discussed
provisions of Section 43-D(5) of the UAP Act The
relevant portion of the said judgment are as
follows:
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“26. The conventional idea in bail jurisprudence vis-a-
vis ordinary penal offences that the discretion of courts
must tilt in favour of the oft-quoted phrase — “bail is
the rule, jail is the exception” — unless circumstances
justify otherwise — does not find any place while
dealing with bail applications under the UAP Act. The
“exercise” of the general power to grant bail under the
UAP Act is severely restrictive in scope. The form of the
words used in the proviso to Section 43-B(5) — “shall
not be released” in contrast with the form of the words
as found in Section 437(1) CrPC — “may be released” —
suggests the intention of the legislature to make bail,
the exception and jail, the rule.
27. The courts are, therefore, burdened with a sensitive
task on hand. In dealing with bail applications under
the UAP Act, the courts are merely examining if there is
justification to reject bail. The “justifications” must be
searched from the case diary and the final report
submitted before the Special Court. The legislature has
prescribed a low, “prima facie” standard, as a measure
of the degree of satisfaction, to be recorded by the
Court when scrutinising the justifications [materials on
record]. This standard can be contrasted with the
standard of “strong suspicion”, which is used by courts
while hearing applications for “discharge”. In fact, the
Supreme Court in Zahoor Ahmad Watali [NIA vs.
Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2
SCC (Cri) 383] has noticed this difference, where it
said :
(SCC p. 24, para 23) “23. … In any case, the degree of
satisfaction to be recorded by the court for opining that
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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.”
28. In this background, the test for rejection of bail is
quite plain. Bail must be rejected as a “rule”, if after
hearing the Public Prosecutor and after perusing the
final report or case diary, the court arrives at a
conclusion that there are reasonable grounds for
believing that the accusations are prima facie true. It is
only if the test for rejection of bail is not satisfied —
that the courts would proceed to decide the bail
application in accordance with the “tripod test” (flight
risk, influencing witnesses, tampering with evidence).
This position is made clear by sub-section (6) of
Section 43-D, which lays down that the restrictions, on
granting of bail specified in sub-section (5), are in
addition to the restrictions under the Code of Criminal
Procedure or any other law for the time being in force
on grant of bail.
29. On a textual reading of Section 43-D(5) of the UAP
Act, the inquiry that a bail court must undertake while
deciding bail applications under the UAP Act can be
summarised in the form of a twin-prong test:
(1) Whether the test for rejection of the bail is
satisfied?
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1.1. Examine if, prima facie, the alleged “accusations”
make out an offence under Chapter IV or VI of the UAP
Act;
1.2. Such examination should be limited to case diary
and final report submitted under Section 173CrPC;
(2) Whether the accused deserves to be enlarged on
bail in light of the general principles relating to grant
of bail under Section 439CrPC (“tripod test”)?
On a consideration of various factors such as nature of
offence, length of punishment (if convicted), age,
character, status of accused, etc. the court must ask
itself:
2.1. Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused
tampering with the evidence?
2.3. Whether there is apprehension of accused
influencing witnesses?
30. The question of entering the “second test” of the
inquiry will not arise if the “first test” is satisfied. And
merely because the first test is satisfied, that does not
mean however that the accused is automatically
entitled to bail. The accused will have to show that he
successfully passes the “tripod test”.”
23. Thus, the judgment in Gurwinder Singh (supra) states
about the twin-prong test i.e., whether the test for rejection is
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satisfied or not. As a part of the second test, the ‘tripod test’
i.e., flight risk, influence to the witnesses and tempering of
evidence, is to be applied by a Court while deciding a bail
application. These facts are elaborated in Gurwinder Singh
(supra) on the different aspects which were laid down in
Zahoor Ahmad Shah Watali (supra).
24. In Abdul Wahid vs. National Investigation Agency,
2024 SCC OnLine Del 5402 dealt with aspect of Section 43-
D(5) of the UAP Act and it is held as under:
“21. The UAPA is a special Act, which has provisions
that lay down standards to be adopted for grant of bail.
Section 43-D(5) of the UAPA reads as under:
“(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…..20/-
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reasonable grounds for believing that the accusation
against such person is prima facie true.
22. A perusal of the above provision shows that the
threshold for granting bail under Section 43-D(5) of
UAPA is quite high; the accused person shall not be
released on bail if the Court is of the opinion that there
are grounds to believe that the allegations against the
accused are prima facie true.”
25. Thus, the first and the foremost thing requires to be
considered by the court considering the bail application under
UAP Act is, whether there are reasonable grounds for
believing that accusations against such persons are prima
facie true.
26. In the present appeal, grounds raised by the appellant
are that since last four years, he is behind the bars and,
therefore, his right of speedy trial enshrined under Article 21
of the Constitution is affected. The need for speedy trial and
the issue of wrong incarceration has been reiterated by the
Hon’ble Apex court in various cases including in Sheikh Javed
Iqbal alias Ashfaq Ansari alias Javed Ansari vs. State of Uttar
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Pradesh (supra). The Hon’ble Apex Court granted bail in this
matter and distinguished Gurwinder Singh (supra) on the
ground that the trial was underway in the latter case.
Relevant portions of the decision in Sheikh Javed Iqbal alias
Ashfaq Ansari alias Javed Ansari vs. State of Uttar Pradesh
(supra) reads as under:
“22. It is trite law that an accused is entitled to a
speedy trial. This Court in a catena of judgments has
held that an accused or an undertrial has a
fundamental right to speedy trial which is traceable to
Article 21 of the Constitution of India. If the alleged
offence is a serious one, it is all the more necessary for
the prosecution to ensure that the trial is concluded
expeditiously. When a trial gets prolonged, it is not
open to the prosecution to oppose bail of the accused-
under trial on the ground that the charges are very
serious. Bail cannot be denied only on the ground that
the charges are very serious though there is no end in
sight for the trial to conclude xxxx xxxx xxxx.
31. In Gurwinder Singh (supra) on which reliance has
been placed by the respondent, a two Judge Bench of
this Court distinguished K.A.Najeeb (supra) holding
that the appellant in K.A.Najeeb (supra) was in
custody for five years and that the trial of the
appellant in that case was severed from the other co-
accused whose trial had concluded whereupon they
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were sentenced to imprisonment of eight years; but in
Gurwinder Singh, the trial was already underway and
that twenty two witnesses including the protected
witnesses have been examined. It was in that context,
the two Judge Bench of this Court in Gurwinder Singh
observed that mere delay in trial pertaining to grave
offences cannot be used as a ground to grant bail.
32. This Court has, time and again, emphasized that
right to life and personal liberty enshrined under
Article 21 of the Constitution of India is overarching
and sacrosanct. A constitutional court cannot be
restrained from granting bail to an accused on account
of restrictive statutory provisions in a penal statute if it
finds that the right of the accused-under trial under
Article 21 of the Constitution of India has been
infringed. In that event, such statutory restrictions
would not come in the way. Even in the case of
interpretation of a penal statute, howsoever stringent
it may be, a constitutional court has to lean in favour
of constitutionalism and the rule of law of which
liberty is an intrinsic part. In the given facts of a
particular case, a constitutional court may decline to
grant bail. But it would be very wrong to say that
under a particular statute, bail cannot be granted. It
would run counter to the very grain of our
constitutional jurisprudence. In any view of the matter,
K.A.Najeeb (supra) being rendered by a three Judge
Bench is binding on a Bench of two Judges like us.”
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27. Thus, the Hon’ble Apex Court has reiterated the need
for speedy trial in the decision in Javed Gulam Nabi Shaikh
vs. State of Maharashtra and anr (supra).
28. The appellant as well as the State relied upon the
decision in the case of Thwaha Fasal vs. Union of India
(supra) and Gulfisha Fatima vs. State (Govt. of NCT of Delhi),
reported in 2026 INSC 2 wherein the Hon’ble Apex Court has
considered all the judgments relating to the issue of prolonged
incarceration and judicial custody. The Hon’ble Apex Court,
after considering the said judgments, has observed as under:
“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 the 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…..24/-
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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 from
that in ordinary criminal cases. This is not to presume
guilt, but to recognise that bail decisions are…..25/-
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necessarily forward-looking in terms of ensuring an
effective trial.
50. The Court must also bear in mind that it is not
confined to a binary choice between continued custody
and unconditional release. Where delay becomes a
matter of constitutional concern, appropriate
directions for expeditious trial, prioritisation of
witnesses, or periodic review of progress may be
issued. Such measures are constitutionally significant
responses that address the vice of delay while
respecting the statutory framework. The liberty to
renew a prayer for bail upon continued stagnation
may also be preserved.
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
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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 excludes is
a mechanical override based on time alone, divorced
from legal context.
54. Having set out the above governing approach, this
Court, in the later part of this judgment would apply
these principles in a calibrated manner viz. to the
claim of each of the appellants. The Court will
examine, in relation to each appellant, the role
attributed and whether the statutory threshold under
Section 43D(5) is attracted on the prosecution
material taken at its highest. Thereafter, where the
plea of delay and prolonged incarceration is pressed,
the Court will consider whether the circumstances
warrant constitutional intervention in terms of the
principles noticed above, or whether appropriate
directions for expeditious trial would adequately
address the concern expressed under Article 21.
55. It is in this disciplined manner, and in faithful
regard to both statutory design and constitutional
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principle, that the present appeals are proposed to be
adjudicated.
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.
57. Thus, when the composite evaluation yields a clear
conclusion that continued detention has crossed the
bounds of constitutional permissibility that the Court
may justifiably intervene notwithstanding statutory
restrictions.”
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29. Regarding the decision in the case of K.A.Najeeb
(supra), the Hon’ble Apex Court in Gulfisha Fatima vs. State
(Govt. of NCT of Delhi) (supra) 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,
would 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.
67. Insofar as the prolonged period of incarceration is
concerned, the decision in Gulfisha Fatima (supra)
makes it clear that the role which has been attributed
to the Appellants, prima facie material, etc. deserves to
be considered by this Court…….”
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30. In the present case, the role of the appellant appears to
be that he is connected with “Naxal Organizations”. He was
found to be providing material, Literature to members of the
said “Naxal Organizations”. The statements of witnesses
further show that he insisted witnesses to be part of the said
“Naxal Organizations”. Thus, the act of harbouring on the
part of the appellant reveals.
31. Admittedly, activities of the appellant are not only
against the interests of the State but also against the
sovereignty of the State. Therefore, we are of opinion that
merely prolonged incarceration would not be sufficient to
grant bail to the appellant in above facts and circumstances.
There is no dispute as far as rights guaranteed under Article
21 of the Constitution. However, admittedly, it is not an
absolute right. When the appellant is having connection with
the “Naxal Organizations”, various materials are seized from
his possession and his involvement in the activities against the
State when revealed, Article 21 of the Constitution would not
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come to the rescue of the appellant. Liberty must give away
when it threatens collective interests of the Society. No
individual can assert a freedom by threatening life or liberty
of others.
32. The Hon’ble Apex Court in the case of Gulfisha Fatima
vs. State (Govt. of NCT of Delhi) (supra) emphasized on the
fact that all the accused persons cannot be treated identically.
The Court further noted that there has to be a distinction
between accused persons based on the quality of material, the
nature of involvement, and the necessity of further detention.
The Hon’ble Apex Court in relevant paragraphs observed as
under:
“100. The gravity of the alleged act is unquestionably
serious however, public interest and national security
concerns may be engaged to a materially different
degree depending on the role of each accused. The
continued detention of those alleged to be the
architects of the conspiracy may be required to
safeguard broader security interests and deter future
acts, whereas the rationale for continued incarceration
of minor participants is comparatively attenuated once…..31/-
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the investigative purpose is exhausted. The Court is
therefore justified in calibrating its approach, ensuring
that the pursuit of security does not eclipse the
principle of proportionality.
101. It is well recognised that Article 21 rights, though
not absolute, require the State and the Court to justify
continued custody with reference to the specific
individual before it. Treating all accused identically
irrespective of their roles would risk transforming pre-
trial detention into a punitive mechanism divorced
from individual circumstances. The constitutional
mandate demands a differentiated inquiry: where
prolonged custody disproportionately burdens those
whose roles are limited, the balance between
individual liberty and collective security may call for
conditional release, while the same balance may tilt
differently for those alleged to have orchestrated the
offence.
102. The statutory restrictions under special
enactments do not preclude the Court from recognising
distinctions between accused persons based on the
quality of material, the nature of involvement, and the
necessity of further detention.”
33. In the present case, the appellant has claimed the right
of parity.
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34. Learned Additional Public Prosecutor for the State
relied upon the decision in the case of Sagar vs. State of UP &
anr, reported in 2025 SCC OnLine SC 2584. While discussing
the issue of granting bail on the ground of parity, the Hon’ble
Apex Court observed as under:
“10. The question that arises for consideration is
whether, as done by the High Court in the impugned
order, parity with the co-accused persons can be the
sole reason for granting bail. Bail has often been stated
to be the rule, and jail, the exception. This cannot be
emphasized enough. At the same time, this, however,
does not mean that the relief of bail is to be granted
without due regard to the circumstances involved in
the alleged offence for which the accused person has
been arrested. In this regard, it has to be noted that a
Court, while granting bail, has to consider a number of
aspects. Judgments too many to count, delivered by
this Court have delineated the relevant considerations
to be kept in mind. A recent reiteration thereof was in
Ashok Dhankad vs. State of NCT of Delhi. The relevant
extracts thereof are as under:–
“19. The principles which emerge as a result of
the above discussion are as follows:
(i) An appeal against grant of bail cannot be
considered to be on the same footing as an
application for cancellation of bail;
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(ii) The Court concerned must not venture into a
threadbare analysis of the evidence adduced by
prosecution. The merits of such evidence must
not be adjudicated at the stage of bail;
(iii) An order granting bail must reflect
application of mind and assessment of the
relevant factors for grant of bail that have been
elucidated by this Court.
[See: Y v. State of Rajasthan (Supra);
Jaibunisha vs. Meherban and Bhagwan Singh vs.
Dilip Kumar @ Deepu]
(iv) An appeal against grant of bail may be
entertained by a superior Court on grounds such
as perversity; illegality; inconsistency with law;
relevant factors not been taken into consideration
including gravity of the offence and impact of the
crime;
(v) However, the Court may not take the conduct
of an accused subsequent to the grant bail into
consideration while considering an appeal against
the grant of such bail. Such grounds must be
taken in an application for cancellation of bail;
and
(vi) An appeal against grant of bail must not be
allowed to be used as a retaliatory measure. Such
an appeal must be confined only to the grounds
discussed above.”
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11. It is clear from the perusal of the above factors that
the High Court failed to consider all that was relevant.
On parity, it is necessary to refer to Ramesh Bhavan
Rathod vs. Vishanbhai Hirabhai Makwana (Koli). This
Court observed that while utilizing parity as a ground
for bail, the same must focus on the role of the accused
and cannot be utilized solely because another accused
person was granted bail in connection with the same
offence, and neither can this ground be claimed as a
matter of right. [See also: Tarun Kumar vs. Assistant
Director Directorate of Enforcement; Sabita Paul vs.
State of West Bengal].
14. What flows from the above judgments, which have
been referred to, only to the limited extent indicated
above, is that the High Courts speak in one voice that
parity is not the sole ground on which bail can be
granted. That, undoubtedly, is the correct position in
law. The word ‘parity’ is defined by the Cambridge
Dictionary as “equality, especially of pay or position.”14
When weighing an application on parity, it is ‘position’
that is the clincher. The requirement of ‘position’ is not
met only by involvement in the same offence. Position
means what the person whose application is being
weighed, his position in crime, i.e., his role etc. There
can be different roles played – someone part of a large
group, intending to intimidate; an instigator of
violence; someone who throws hands at the other side,
instigated by such words spoken by another, someone
who fired a weapon or swung a machete – parity of
these people will be with those who have performed
similar acts, and not with someone who was part of the
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group to intimidate the other by the sheer size of the
gathering, with another who attempted to hack away
at the opposer’s limbs with a weapon.”
35. Thus, in view of the above observations, the prayer for
parity requires to be considered by considering the role of
each of the accused. Therefore, the prayer of parity would
not be tenable in the present appeal as the co-accused
released on bail are completely on different footings.
36. In the case of the present appellant, substantial
evidence shows that he was having Literature and providing
various materials including material to prepare explosives.
His connection with leader of the “Naxal Organizations” and
statements of witnesses showing he was insisted to join the
said organization makes his case different than the other co-
accused. Moreover, the appellant was released on temporary
bail from 19.10.2024 to 23.10.2024. He was directed to
surrender on 24.10.2024. He has disobeyed the said
order and he has not surrendered and he was absconding.
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Directly, he appeared before the court through Video
Conferencing on 2.1.2025, that means, as per the order of the
court, he has not surrendered before the court and was
absconding. The day to day business of the court recorded by
the trial court shows his absence before the court through jail
authorities.
37. Thus, it reveals that the court has to consider (i)
gravity of the offence; (ii) role of the appellant; (iii) prima
facie case against him, and (iv) whether his right of speedy
trial enshrined under Article 21 of the Constitution is affected.
38. As far as prima facie case is concerned, the material
collected during the investigation shows that it is sufficient to
show his involvement considering fact that when he was
released on bail, he did not surrender before the jail authority
as per directions of the court which poses a flight risk if he is
released on bail and it can also have an impact on other
witnesses who would appear in the matter.
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39. As far as gravity of the offence is concerned, it reveals
from investigation papers as activities of the appellant are
against the sovereignty of the State and against interests of
justice. Under Section 18 of the UAP Act, even an act of
preparation for commission of terrorist act is punishable for
imprisonment for life.
40. There is nothing on record to show that the appellant
would not involve in these types of activities if he is released
on bail.
41. Thus, considering the bar under Section 43-D(5) of the
UAP Act, we are of opinion that the appellant failed to make
out his case for grant of bail.
42. Considering the above said findings; prima facie
material against the appellant; flight risk if the appellant is
released on bail; and right of the accused, as observed earlier,
under Article 21 of the Constitution of India which is not an
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absolute right; the appeal being devoid of merits is liable to be
dismissed and the same is dismissed.
Appeal stands disposed of.
JUDGE JUDGE
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge .....39/-
Date: 20/07/2026 17:59:45
