Delhi High Court on Wednesday granted bail to Mohd. Hakim who has spent more than 12 years as an undertrial in the 2008 Delhi serial blasts case, saying that the courts must not attend to constitutional rights only after they are dead.
“Courts must not play coroner and attend to legal or constitutional rights only after they are “dead‟. Instead we must play doctor, and save such rights from demise before they are extinguished,” while granting bail to the UAPA prisoner, judges Siddharth Mridul and Anup Jairam Bhambhani said.
While arresting the Muslim man in 2009 February, the police claimed that Hakim is accused of having carried a certain quantity of cycle ball-bearings from Lucknow to Delhi and those were subsequently used to make IEDs used in the 2008 blasts. He was arrested under 120B, 121, 121A, 122 and 123 of the IPC; sec. 4 and 5 of the Explosive Substances Act, 1908 and sec. 16, 18 and 23 of the draconian UAPA.
High Court also said that Hakim has “undergone punishment for more than a decade of his life, for an alleged offence for which he has not yet been found guilty.”
“…the appellant (Hakim) deserves at least to be given back his liberty after more than 12 long years of imprisonment as an undertrial,” judges went on to say.
In the case, 256 witnesses had been examined over the years, and 60 prosecution witnesses still remained to be examined, according to the prosecution.
Court went on to say: “The two contrary assumptions are : first, what if the appellant is acquitted. In the event of acquittal, how would the State compensate the appellant for having been robbed of what may have been the most productive and defining decade of his life, at the State‟s instance? Second, even assuming the appellant is ultimately convicted but sentenced to life imprisonment, how would the State compensate him for having negated his entitlement to bail under section 436A Cr.P.C. read with section 57 IPC? We are sure the State has not delved into these contrary assumptions.”
Senior lawyer Nitya Ramakrishnan and lawyer Warisha Farasat, who appeared for Hakim, argued that his right to a speedy trial is being violated and he deserves to be released on bail during the pendency of the trial while the prosecution had argued that Hakim was charged with grave and heinous offences in the case in which 26 people died and 135 were injured.
The prosecution also said that the Supreme Court in Zahoor Ahmad Shah Watali judgment has instructed the courts to not enter upon the merits or demerits of the evidence in a UAPA case and decline the bail in view of Section 43-D(5) of UAPA.
