Would Kasab have been given bail over trial delay? Government to SC over UAPA debate

NEW DELHI: Amid an escalating fight between two benches over whether delay in trial entitles those facing grave charges under UAPA to bail, Centre on Friday put a pointed poser to Supreme Court - could dreaded terrorists like Ajmal Kasab and Hafiz Saeed be allowed bail just because of delay in trial?

Questioning the court's verdict that delay in trial and long incarceration could be grounds for bail under special laws like PMLA and UAPA, additional solicitor general S V Raju and advocate Rajat Nair, appearing for Centre, said there cannot be a grand generalisation to grant bail on grounds of delay, and the nature of offence and individual's role in it has to be examined, as done by the court while it granted bail to five accused in the 2020 Delhi riots case but declined the relief to Umar Khalid and Sharjeel Imam.

"In the Ajmal Kasab case, there was a delay as there were a large number of witnesses in the case. Will you grant him bail on the ground of delay? If Hafiz Saeed is brought from Pakistan, will you grant him bail on the ground of delay?" the ASG contended before a bench of Justices Aravind Kumar and P B Varale who denied bail to Delhi riots accused Umar Khalid and Sharjeel Imam but granted relief to five accused in the same case.

ASG Raju's contention appeared aligned with the reasoning of Justices Kumar and Varale that prolonged incarceration cannot be mathematically used as a ground for releasing UAPA accused, as factors like severity of offence and even who was responsible for the delayed trial have to be taken into account.

Referring to SC's earlier order upholding stringent bail conditions under TADA, he said provisions have been prescribed under a law for the grant of bail, and a conscious decision has been taken by the legislature to sacrifice to some extent the personal liberties of an undertrial accused for the sake of protecting community and nation against terrorist and disruptive activities or other activities harmful to society.

"The proper course is to identify from the nature of the role played by each accused person the real hardcore terrorists or criminals from others who do not belong to that category and apply the bail provisions strictly in so far as the former class is conceived and liberally in respect of the latter class," he said. He added that bail cannot be mechanically granted on the ground of delay.