Supreme Court rejects Umar Khalid and Sharjeel Imam’s bail pleas, says continued detention not “constitutionally impermissible”

Liberty and Article 21 cannot operate as a “trump card”

The Court noted that there is a “limited compass” of consideration for the principal submissions concerning prolonged incarceration of the accused persons on the grounds of Article 21 of the Constitution. It stated that the argument did not engage in an abstract comparison between the Constitution and a statute, nor did it declare that delay must invariably prevail over statutory restrictions or that delay can never warrant constitutional relief.

Justice Kumar observed that liberty under Article 21 occupies a central place in the constitutional scheme and that the right to a speedy trial forms an important facet of that guarantee. At the same time, Article 21 has never operated in isolation. He noted that the constitutional promise does not assure unregulated liberty, but guards against deprivations that are arbitrary, unconscionable or unfair which is reflected by the expression “procedure established by law”. The Court held that delay does not operate as a “trump card” that automatically displaces statutory restraint.

Ordinary bail jurisprudence not found under special statutes 

Justice Kumar explained that the presumption in favour of pre-trial liberty requires modification under special statutes such as the UAPA, enacted to address offences implicating the sovereignty, integrity and security of the State. Section 43D(5), it held, marks a conscious legislative departure from ordinary bail jurisprudence.

At the same time, he observed, Section 43D(5) did not exclude judicial scrutiny and did not mandate denial of bail by default. The restriction operates only when the Court finds reasonable grounds to believe that the accusation is prima facie true. At the bail stage, the inquiry remains accused-specific and confined to the role attributed to the individual, with the prosecution’s material taken at face value. The Court reiterated that this stage does not permit evaluation of defences, weighing of evidence or a mini trial.

Scope of a ‘terrorist act’ under Section 15

Justice Kumar stated that the definition of “terrorist act” under Section 15 centres on intent and consequences. It does not confine itself to conventional modes of violence. The use of the expression “by any other means of whatever nature” cannot be rendered otiose.

The statutory emphasis, the Court noted, lies not merely on the instrumentality employed, but on the design, intent and effect of the act. He further observed that apart from death or destruction of property, Section 15 expressly covers acts that disrupt supplies or services essential to the life of the community and acts that threaten the “economic security” of the nation.

Differentiation among accused and findings on Khalid and Imam

The Bench reiterated that all accused do not stand on the same footing. Criminal adjudication, the Court held, requires such differentiation. Applying this framework, the Court held that the prosecution material, taken at face value, discloses a prima facie attribution of a central and formative role to Khalid and Imam in the alleged conspiracy. It noted that the statutory threshold under Section 43D(5) therefore stood attracted in their cases. While the Court took note of the substantial period of incarceration already undergone, it was not persuaded that continued detention had crossed the threshold of constitutional impermissibility at this stage. The Court accordingly rejected their appeals.

However, liberty was granted to both Khalid and Imam to renew their prayer for bail upon completion of the examination of the protected witnesses relied upon by the prosecution, or upon the expiry of one year from the date of the order, whichever occurs earlier.

Bail to other co-accused and trial directions

In contrast, the Court allowed the bail appeals of Gulfisha Fatima, Meeran Haider, Shifa Ur Rehman, Mohd Saleem Khan and Shadab Ahmad. Having regard to the roles attributed to them, the nature of the material relied upon and the present stage of the proceedings, the Court held that continued incarceration was not indispensable to the conduct of a fair trial. It granted bail subject to ‘12 strict conditions’, breach of which would permit the trial court to cancel bail after granting an opportunity of hearing.

The Bench directed the trial court to proceed with the matter with due expedition and to ensure that the examination of witnesses, particularly protected witnesses relied upon by the prosecution, proceeds without delay.