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3.6 The Appellant - investigating authority, aggrieved by the order(s) granting bail, filed these appeals by special leave, thereagainst.

Hereinafter referred to as ‘IPC’.

Hereinafter referred to as ‘UAPA’.

ARGUMENTS AND ANALYSIS

4. We have heard the parties at length. Mr. K.M. Natraj, learned Additional Solicitor General of India, and Mr. Shailesh Madiyal, learned Senior Counsel, who appeared for the Appellant. The Respondent(s), accused persons, were heard through Mr. Archit Krishna, Advocate, and Mr. N. Sai Vinod, Advocate-on-Record.

11. At the cost of repetition, it be stated that all of the accused respondents are being tried for offences such as Section 302 IPC and Section 16 UAPA. For these offences, one of the possible punishments prescribed is death. That, in and of itself, excludes these offences from the ambit of Section 436A-IPC. On that count, the impugned judgments requires interference and are set aside to that extent.

ARTICLE 21- LIBERTY AS A SOLE CONSIDERATION?

12. The next ground considered by the High Court was the application of Article 21 of the Constitution of India. By merely referring and relying upon the decisions rendered by this Court in Hussainara Khatoon & Ors (IV) v. Home Secretary, State of Bihar7; Abdul Rehman Antulay & Ors. v. R.S. Nayak & Anr.8 and Satinder Kumar Antil v. CBI & Anr.9, the High Court invoking Article 21 let loose the accused. The approach adopted by the High Court is fallacious, and the impugned orders (1980) 1 SCC 98 (1992) 1 SCC 225 (2022) 10 SCC 51 would, to that extent warrant interference. However, given that, proceed to examine the issue independently.

24. In the instant case, we have already noticed that the “pointing finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer.

Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the (2012) 1 SCC 40 Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather “recalibrating the scales of justice”.” 15.3 In Umarmia v. State of Gujarat12, while dealing with a case arising out of Terrorist and Disruptive Activities (Prevention) Act, 1987 wherein the accused had played an important role in securing the delivery of highly explosive material such as RDX to a certain district in Maharashtra, this Court granted bail on account of him having spent more than 12 years in custody but imposed certain justified conditions such as surrendering the passport, restricting movement to one particular district and daily reporting to the concerned police station etc. 15.4 Writing for a bench of three judges, Surya Kant, J. (as the present Chief Justice of India, then was) in Union of India v. K.A. Najeeb13 observed in a case involving various sections of the IPC as also the UAPA as under:

13. We may also refer to the orders enlarging similarly-situated accused under UAPA passed by this Court in Angela Harish Sontakke v. State of Maharashtra [Angela Harish Sontakke v. State of Maharashtra, (2021) 3 SCC 723] . That was also a case under Sections 10, 13, 17, 18, 18-A, 18-B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43-D(5) of the UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra [Sagar Tatyaram Gorkhe v. State of Maharashtra, (2021) 3 SCC 725] , an accused under UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.