Underlining that “bail is the rule and jail is the exception” is not merely an empty statutory slogan, the Supreme Court on Monday questioned its January 5 judgment denying bail to activists Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case.It cited a “binding precedent” laid down by a three-judge Bench in the KA Najeeb case. While granting bail to Syed Iftikhar Andrabi, who has been under custody for more than five years in a narco-terrorism case under the Unlawful Activities (Prevention) Act, 1967 probed by the NIA, a Bench of Justice BV Nagarathna and Justice Ujjal Bhuyan expressed “serious reservations” about the reasoning given by a Bench of Justice Aravind Kumar and Justice NV Anjaria in the January 5 judgment refused bail to Khalid and Imam.It said a two-judge Bench was bound to follow a judgment of a three-judge Bench. “Judicial discipline and certainty demands that Benches of smaller strength are mindful of the decisions rendered by larger Benches and are bound to follow the same. If the smaller Benches are unable to agree with the ratio laid down by the larger Bench then the proper and the only course of action open is to make a reference to the Chief Justice of India for placing the matter for consideration by a still larger Bench.” Raising a question of judicial discipline, the Bench of Justice Nagarathna and Justice Bhuyan said, “It is plain that a judgment rendered by a Bench of lesser strength is bound by the law declared by a Bench of greater strength. Judicial discipline mandates that such binding precedent must either be followed or, in case of doubt, be referred to a larger Bench. A smaller Bench cannot dilute, circumvent, or disregard the ratio of a larger Bench.”It said the oft-invoked phrase, “bail is the rule and jail is the exception”, is not merely an empty statutory slogan flowing from the Code of Criminal Procedure (CrPC). “It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence, which is the cornerstone of any civilised society governed by the rule of law,” the top court said.“Statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAPA is intended, but they cannot altogether invert the constitutional relationship between liberty and detention,” the Bench noted.Regarding the January 5 order allowing Khalid and Imam to file fresh bail applications after one year on completion of the examination of protected witnesses, the judgment authored by Justice Bhuyan said, “…constitutional courts should not normally fix a time bound schedule for disposal of cases pending in any court. Question of giving out of turn priority to certain cases should be best left to the courts concerned. Only in exceptional circumstances, an order fixing the outer time limit for disposal of cases should be passed to meet extraordinary situations.”It underlined that the three-judge Bench in the KA Najeeb case (2021) ruled that prolonged incarceration was a ground for constitutional courts to grant bail under the UAPA despite the rigours under Section 43D(5) of the Act.“The statutory embargo of Section 43-D(5) must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAP Act, ‘bail is the rule and jail is the exception’; of course, in an appropriate case, bail can be denied having regard to the facts of that particular case,” the top court said.Section 43D(5) of the UAUA says that notwithstanding anything contained in the Cr.P.C (replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS), no person accused of an offence punishable under Chapters IV and VI of the UAPA shall be released on bail or on his own bond, unless the public prosecutor has been given an opportunity of being heard on the bail application.Further, the proviso to Section 43D(5) says that such accused person shall not be released on bail or on his own bond if the court on a perusal of the case diary or the final report (charge sheet) is of the opinion that there are reasonable grounds to believe that the accusation against such person is prima-facie true.However, Justice Bhuyan said, “We have serious reservations on various aspects of the judgment in Gulfisha Fatima (denying bail to Khalid and Imam), including foreclosing the right of the two appellants to seek bail for a period of one year. The judgment in Gulfisha Fatima would have us believe that Najeeb is only a narrow and exceptional departure from Section 43-D(5) justified in extreme factual situations. It is this hollowing out of the import of the observations in Najeeb that we are concerned with.”Enunciating the broader contours of the KA Najeeb verdict, it said, “A three-Judge Bench of this court was clear and unequivocal in holding that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge the accused on bail.”