Four and a half years in custody is not enough: Rajasthan High Court refuses bail to five accused in the Kanhaiya Lal murder
Chief Justice Sanjay K. Agrawal and Justice Sameer Jain hold that the Najeeb melt-down principle does not reach a case where the trial is running day to day and the witness list has been halved.
Five men who have been in judicial custody since July and August 2022 over the murder of a tailor in Udaipur asked the Rajasthan High Court to release them on the one ground that has broken the back of the UAPA's bail bar in recent years: that they had served four and a half years without a verdict. A Division Bench of Chief Justice Sanjay K. Agrawal and Justice Sameer Jain has refused. The reason is narrow and factual. The trial is not stalled — it is being heard day to day, the prosecution has cut its witness list from about 180 to 89, and roughly thirty material witnesses have already been examined. On those facts, the Court held, the principle that Article 21 can melt down Section 43D(5) of the UAPA does not apply at all.
The case the appeals arise from
The judgment sets out the sequence that led to the killing. In May 2022 Nupur Sharma, then a spokesperson of a political party, made remarks about Prophet Mohammad during a television debate, and the comments led to widespread agitation and protests across the country. On the night of 10 June 2022, according to the appellants' own account, Kanhaiya Lal made and forwarded remarks relating to those comments through a Facebook post, which allegedly agitated local residents belonging to a particular community in his neighbourhood. An FIR was lodged against him at Police Station Dhanmandi at 12.34 a.m. on 11 June. He was arrested and released on bail by the trial court after three days.
Sensing a threat to his life, he installed three CCTV cameras outside his shop, Suprim Tailors, on 15 June 2022. A day later a man came to the shop on a motorbike, accompanied by his wife and a newborn baby, and had a verbal altercation with him.
On 28 June 2022 two assailants armed with sharp weapons entered the shop on Bhoot Mahal Maaldas Street in Udaipur and killed him. Two shop assistants present at the scene were grievously injured. The assailants recorded the act and circulated videos of it on social media, with assertions that the prosecution says were intended to promote enmity on communal grounds and to spread terror across the nation. His son lodged the complaint at about 6.31 a.m. the next morning.
The case was registered under Sections 452, 302, 153-A, 153-B, 295-A and 34 of the Indian Penal Code together with Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act. On the direction of the Ministry of Home Affairs, the National Investigation Agency re-registered it on 29 June 2022 and took over the investigation. The charge sheet names two principal accused as the men who stabbed and beheaded the deceased in the presence of two workers and then circulated the videos.
The five appellants — Wasim Ali, Muslim Khan, Mohsin Khan, Mohammad Mohsin and Asif Hussain — were arrested between 1 July and 10 August 2022 and have been in judicial custody since. The charge sheet was filed on 22 August 2022; charges were framed on 12 January and 13 February 2024. Their bail applications were rejected by the Special Judge (NIA Cases), Jaipur, by orders of 9 October and 12 November 2024, and these appeals under Section 21(4) of the NIA Act followed.
What the appellants argued
Their case was built on absence and on delay.
On absence, counsel argued that there is no cogent evidence that any of the five was present in or around the shop between 10 and 28 June 2022, and that none was seen in the vicinity in the period leading up to the incident. There is no material, it was said, to show that any of them sent a message, voice note or text on any WhatsApp group capable of being construed as hurting religious faith or promoting enmity. Their names do not appear in the FIR, and their implication rests on presumptions and on call detail records — records that show only that neighbours had been communicating with one another over the years. The disclosure statements were recorded in English, which they do not understand, which was said to vitiate the recoveries under Section 27 of the Evidence Act and to attract Section 25. None of them has criminal antecedents, and each is the sole breadwinner of his family.
They also pointed to parity: two co-accused had already been granted bail, one by the trial court and one by the High Court, on the same charges.
On delay, the argument was the one that has carried the day in a line of recent cases. The appellants had spent over four and a half years in custody, the prosecution proposed to examine roughly 180 witnesses, and although the charge sheet was filed in 2022 and charges framed in early 2024, the trial was far from conclusion. Counsel relied on Union of India v. K.A. Najeeb, for the proposition that the statutory embargo in Section 43D(5) cannot eclipse the right to a speedy trial under Article 21, and on Syed Iftikhar Andrabi v. NIA, which reaffirmed that Najeeb is binding law and cannot be diluted, holding that Section 43D(5) melts down in the face of prolonged pre-trial incarceration.
What the agency answered
For the NIA, the Additional Solicitor General relied on NIA v. Zahoor Ahmad Shah Watali for the standard of scrutiny: at the bail stage the court does not conduct a mini-trial or weigh evidence meticulously, but takes the agency's material at face value, and if it discloses reasonable grounds for believing the accusation to be prima facie true, bail must be refused. The scrutiny, it was argued, is narrower still once charges have been framed.
On the merits the agency's case was that the appellants played active, indispensable and integral roles in a deep-rooted conspiracy; that the killing was pre-planned and executed in broad daylight; and that the filming and circulation of the act was a calculated move to instil fear and strike terror in the nation at large, deliberately given a communal colour to create a divide between two communities and to project an international flavour to the act. Statements, call details, video recordings and the recovery of weapons were pressed as tangible material.
Two answers went directly to the delay argument, and they are the ones the Court acted on. First, that the trial is being conducted on a day-to-day basis at the State's own request, and that the appellants had vehemently objected to that request — making them attributable to the delay they complain of. Second, that the witness list has been considerably shaved down from 180 to 89, and nearly thirty material witnesses have already been examined, so Najeeb does not arise.
On parity, the agency said the role of each appellant is distinct and documented in the charge sheet, and that the co-accused who were released stand on a different footing — one of them having been granted bail on the ground of juvenility.
The framework the Court applied
The Bench set out Section 43D(5) and (6) and then leaned heavily on the Supreme Court's decision in Gulfisha Fatima v. State (Govt. of NCT of Delhi), quoting it at length on both the structure of the provision and the way Article 21 interacts with it.
Two strands of that extract carry the judgment. The first is about what the UAPA criminalises. Chapters IV and VI do not confine liability to the final execution of a terrorist act; they extend to preparatory conduct, facilitation, abetment and conspiracy, because the threat often materialises long before any overt act of violence. The statute therefore proceeds on a process-based conception of criminality rather than an event-based one — which is why a case can be built against men who were never seen at the shop.
The second is about the limits of the liberty argument. Section 43D(5) does not exclude judicial scrutiny and does not mandate denial of bail by default. But where Parliament has conditioned bail on a defined statutory threshold, a constitutional court cannot treat that restraint as avoidable. The court's role is neither to enforce the embargo mechanically nor to neutralise it by invoking liberty as a straitjacket formula, but to apply it with disciplined scrutiny. Where the prosecution material taken at face value discloses reasonable grounds for believing the accusation prima facie true, the statutory restraint must ordinarily operate; where it does not, liberty must prevail. Article 21, on that formulation, commands the manner of application of the statute; it does not dissolve the statutory condition itself.
Why Najeeb was held not to reach this case
Applying that framework, the Bench recorded five considerations.
The investigation is complete, the charge sheet filed and charges framed, which it held establishes that on a prima facie evaluation there is sufficient material to proceed — so the Watali threshold is squarely met. The offence alleged is not ordinary but a calculated act of terror, and a conspiracy of that nature is often established by circumstantial material, tacit understandings and electronic records, which the prosecution has placed on record. On a prima facie consideration that is neither perfunctory nor adjudicatory, the accusations about participation in the conspiracy are made out from the charge sheet.
The fourth consideration is the one that decides the appeals. The Court accepted that the appellants have been in custody for about four and a half years, but held that this has to be viewed in the context of the trial's progress. Unlike cases where the trial has not even commenced, or where hundreds of witnesses remain untouched, the trial here is proceeding rapidly on a day-to-day basis, the witness list has been reduced significantly, and about thirty primary witnesses have been examined. It therefore could not be said that the trial is stalled or that there is no likelihood of its completing within a reasonable time. The factual matrix was held distinguishable from the extreme delay that warranted invoking the melt-down principle, and Najeeb and Syed Iftikhar Andrabi were held inapplicable.
The fifth records what the Court would not look at. The inquiry at bail must be accused-specific, but the stage does not permit evaluating defences — including the complaint about the language of the disclosure statements — weighing evidence, or conducting a mini-trial on the admissibility of electronic evidence. Those are reserved for the trial court.
On the facts, the Bench held that a brutal murder committed by entering the victim's shop in broad daylight, coupled with the recording and dissemination of the act to create communal disharmony and terror, strikes at the very foundation of the State. In such matters the grant of bail must deviate from the ordinary rule and a strict approach must be adopted unless the rigours of Section 43D(5) are dislodged by the accused — which, it held, these appellants had failed to do.
Order
Without commenting on the final merits of the evidence, the Court held that the gravity of the offence, the specific roles attributed to the appellants in the larger conspiracy and the heinous nature of the terrorist act disentitled them to bail at this stage, the trial's active and rapid progress negating the sole ground of delay urged under Article 21.
The appeals under Section 21(4) of the NIA Act were not allowed, the orders of 9 October and 12 November 2024 were sustained and affirmed, and the batch of Division Bench criminal appeals was dismissed. The Bench added that its observations were made solely for deciding the bail appeals and are not an expression of opinion on the merits, and directed the trial court to proceed uninfluenced by them.
The judgment opens with prefatory remarks that are unusually declamatory for a bail order — a quotation from Mahatma Gandhi that “Terrorism and deception are weapons not of the strong, but of the weak”, lines from the poet Ramdhari Singh Dinkar on the worth of forgiveness in the hands of the powerful, and a passage describing the NIA Act and the UAPA as the armour of the State rather than ordinary criminal statutes. It is worth separating that register from what the Court actually did, because the operative reasoning is narrower than the overture suggests.
The appeals failed on a fact, not on a proposition of law. Had the trial been stalled, or the witness list still standing at 180 with nobody examined, the same framework would have pointed the other way, and the judgment says so in terms. What the Bench declined to accept is that the passage of four and a half years is by itself enough — that the clock, rather than the state of the docket, is what triggers Najeeb. On that reading the melt-down principle is a remedy for a trial that is going nowhere, and the answer to it is to make the trial move. The appellants, having objected to the State's request for a day-to-day hearing, found that answer turned against them.