(Prayer: Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure, to set aside the order passed by the Principal Sessions Judge, Theni in Cr.M.P.No.2693 of 2024 dated 21.11.2024 allow the appeal and enlarge the appellant / accused on bail in S.C.No. 122 of 2016 on the file of the Principal Sessions Court, Theni.)

N. Anand Venkatesh, J.

1. This Criminal Appeal has been filed challenging the order passed in Cr.M.P.No.2693 of 2024 in S.C.No.122 of 2016 dated 21.11.2024, wherein, the trial Court dismissed the bail petition filed by the appellant under Section 483 of BNSS.

2. The appellant is undergoing trial before the learned Principal Sessions Judge, Theni in S.C.No.122 of 2016 for offence under Sections 120(B), 121, 122, 124(A), 332, 307 r/w 149 IPC, Section 13(i)(a) (b) of the Unlawful Activities (Prevention) Act, 1967, Sections 3, 4, 5 of the Arms Act, 1959, Section 9 (B) (1-B) of Explosives Act, 1884 and Section 17(1)(2) of the Criminal Law Amendment Act, 1908.

3. The appellant considering the fact that he has suffered incarceration from the year 2016 onwards and considering the fact that there was no progress in the trial, moved the bail petition before the trial Court.

4. The bail petition was resisted by the respondent on the ground that earlier, the appellant was granted bail in the year 2010 and he absconded for more than six years and was also described as a proclaimed offender and during the period of abscondence, the appellant was involved in commission of nearly six serious offences and with very great difficulty, the appellant was able to be secured only on 25.07.2016. Considering this conduct of the appellant, the respondent vehemently opposed the grant of bail to the appellant.

5. The trial Court, on considering the plea made by the appellant and also considering the objections raised on the side of the respondent, by an order dated 21.11.2024 dismissed the bail petition. Aggrieved by the same, the present appeal has been filed under Section 21(4) of the National Investigation Agency (NIA) Act, 2008.

6. When this appeal was pending, it was brought to our notice that the appellant is suffering from serious heart ailment and required immediate surgery. Considering the submissions made on either side, we passed the following order on 02.04.2026:

                    “This appeal has been filed against the order passed by the Principal Sessions Judge, Theni in Crl.M.P.No.2693 of 2024 in SC No.122/2016 dated 21.11.2024 dismissing the petition seeking bail.

                    2. When the appeal came up for hearing on 30.03.2026, this Court directed the learned Additional Public Prosecutor to take instructions on the health condition of the appellant and accordingly directed the matter to be listed today.

                    3. When the matter was taken up for hearing today, the learned Additional Public Prosecutor produced a certificate given by the Assistant Civil Surgeon, Central Prison, Madurai. On going through the same, it is quite evident that an immediate surgery is required for the appellant. But, however, he is not willing to undergo open heart surgery (CABG). Therefore, the prison authorities are not in a position to take any decision on the health condition of the appellant.

                    4. Considering the health condition of the appellant, we direct the Superintendent of Central Prison, Madurai, to get the appellant admitted at Government Rajaji Hospital, Madurai, on 03.04.2026. The health condition shall be assessed and necessary surgery shall be performed and the appellant shall be permitted to remain at the Government Rajaji Hospital till further orders are passed in this appeal.

                    5. Post this case on 29.04.2026.”

7. Pursuant to the above, the appellant underwent surgery at Rajaji Hospital, Madurai on 09.04.2026. After recuperation, the appellant was brought back to the prison on 07.05.2026.

8. The respondent has filed a counter-affidavit and has opposed the grant of bail to the appellant. The respondent has taken a stand that the appellant belongs to the banned CPI (Maoist) Party and had committed very serious offence, which includes an attempt to attack Police Personnel. The appellant had also waged war against the nation and was indulging in dreadful subversive activities. It is stated that the appellant was already enlarged on bail in the year 2010. But, however, he misused his liberty by absconding and committed six independent offences till he was secured in the year 2016. Thus, the proclivity of the appellant to commit offence continued even after he was let out on bail. Insofar as the medical ground is concerned, it is stated that the operation has been successfully performed and the appellant has recovered completely and he is taken care in the prison. Hence, the respondent is vehemently resisting the grant of bail to the appellant in this case. Accordingly, the respondent has sought for dismissal of this petition.

9. We have carefully considered the submissions made on either side and the materials available on record. We have also gone through the order passed by the learned Principal Sessions Judge, Theni.

10. In the case in hand, it is true that the appellant had absconded after he was granted bail in the year 2010 and he was able to be secured only in the year 2016. It is alleged that during this interregnum period of abscondance, the appellant induldged in commission of several crimes. The fact remains that the appellant is inside the jail from the year 2016. One of the offence for which the appellant is undergoing trial is under Section 124-A of IPC. The constitutional validity of this provision is under challenge before the Hon'ble Apex Court. In view of the same, there is no progress in the trial and the Hon'ble Apex Court has only clarified that in cases where the accused person is willing to proceed further with the trial and is willing to face the charge under Section 124- (A) of IPC, the trial Court can proceed with the case. In all other cases, the trial Court will come to a grinding halt. Therefore, there is uncertainty with respect to any progress in the trial in the present case.

11. The next ground to be taken into consideration by this Court is the health condition of the appellant. The appellant was evaluated and diagnosed with coronary artery disease and an open heart surgery was performed at Rajaji Hospital, Madurai on 09.04.2026. After recuperation, the appellant has been sent back to the prison on 07.05.2026.

12. The appellant is nearly aged about 70 years and the appellant is also facing serious health condition. This ground is taken into consideration while dealing with this appeal.

13. We have also taken into consideration the fact that the alleged offence is said to have taken place in the year 2007 and the appellant has been charged for offence under the Unlawful Activities (Prevention) Act and the rigour in the arrest and grant of bail was inserted through the Amendment Act 35 of 2008, which came into effect on 31.12.2008.

14. In the instant case, we do not want to go into the issue as to whether the rigour under Section 43-D(5) of the Act will apply since we are inclined to deal with this case purely from the standpoint of Article 21 of the Constitution of India. We have also taken into consideration the judgment of the Hon'ble Apex Court in the case of Satender Kumar Antil vs Central Bureau Of Investigation reported in (2023) 1 SCC (Crl.) 1 and subsequent clarificatory orders, wherein, the Hon'ble Apex Court had given various guidelines while dealing with the bail application.

15. In the light of the above discussion, considering the fact that there is uncertainty in the progress of the trial before the trial Court, the health condition and the age of the appellant and also taking note of the fact that the appellant has undergone incarceration for more than 10 years as an undertrial prisoner, we are inclined to interfere with the order passed by the learned Principal Sessions Judge, Theni District in Crl.M.P.No.2693 of 2025 in S.C.No.122 of 2016 dated 21.11.2024 and the same is hereby set aside and the appellant is enlarged on bail, subject to the following conditions:

i. The appellant is directed to be enlarged on bail on executing a bond for Rs.25,000/- (Rupees Twenty Five thousand only) with two sureties, each for a like sum to the satisfaction of the Principal Sessions Court, Theni. It is made clear that the Court shall not insist for property surety.

ii. The sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Trial Court may obtain a copy of their Aadhar card or Bank passbook to ensure their identity.

iii. The appellant shall appear and sign before the Principal Sessions Court, Theni during every date of hearing without fail.

iv. The appellant is further directed to appear and sign before the Inspector Police, Q Branch, Madurai on every Friday at 05.00 p.m., until further orders.

v. The appellant shall not abscond during trial.

vi. On breach of any of the aforesaid conditions, the learned Principal Sessions Judge, Theni is entitled to take appropriate action against the appellant in accordance with law as if the conditions have been imposed and the appellant released on bail by the learned Judge / Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji Vs. State of Kerala [(2005) AIR SCW 5560].

vii. If the accused thereafter absconds, a fresh FIR can be registered under Section 269 of BNS, 2023.