Jammu & Kashmir HC allows bail for UAPA detenu, says request of investigating officer for more time not enough

The Jammu & Kashmir and Ladakh High Court has recently said the request of an Investigating officer for extension of time cannot be a substitute for the report of the public prosecutor under provisions of Section 43D (2)(b) of the Unlawful Activities (Prevention) Act.

The Division Bench of Justice Dhiraj Singh Thakur and Justice Vinod Chatterji Koul passed this order while hearing a criminal appeal filed by Showkat Ahmad Sofi.

The appellants were arrested in connection with an FIR under Section 120-B RPC, 17, 18, 38, 39, and 40 of UAPA registered in police station Panthachowk, Srinagar. They preferred applications before the Trial Court for grant of bail. The Trial Court by the order impugned dismissed the applications. According to counsels for appellants, the trial court order is bad in law as the right to personal liberty is a cherished right of every citizen as provided under Article 21 of the Constitution.

Counsels for appellants submitted that appellants have been falsely implicated in the above-mentioned FIR as they have never been involved in any criminal activity. They also state that there are great contradictions in the police story as one fails to understand what role has been played by appellants in the alleged activities. The investigating agency is stated to have given contradictory statements with regard to the recovery of money from appellants and other co-accused.

Another submission of Counsels for appellants is that the police agency has to complete the investigation of the case within a period of 90 days and after its expiry, the accused has an indefeasible right of being released on bail. They also aver that there was no formal request from the public prosecutor to extend the period of detention. The Trial Court is said to have extended the detention of the accused/ appellants beyond the period of 90 days in terms of orders dated 28th February 2019, 7th March 2019, 27th March 2019, and 10th April 2019.

Counsels for appellants said that the abovementioned orders have been passed by the Trial Court on the applications of Investigating Officer (I.O.) and there had been no application, as was required in law, to be filed by Public Prosecutor under and in terms of provisions of Section 43D(2)(b) of ULA(P) Act and therefore, appellants are entitled to default bail.

Shafqat Nazir, Counsel for the appellant stated that there is no report of public prosecutor indicating the progress of the investigation and specific reasons for the detention of the accused beyond the period of ninety days.

It is also insisted by him that neither there is any report of public prosecutor nor any specific reason has been given by the Trial Court to extend the detention of the accused and therefore irrespective of the time having been extended by the trial Court, the appellant on expiry of ninety days is entitled to be released on bail on the ground of default. It is also contended that it was incumbent upon Trial Court to release appellants on bail in default of investigation being completed within the statutory period of ninety days.

The provisions of Section 43D(2)(b), thus, envisage that if it is not possible to complete the investigation within a period of ninety days, the Public Prosecutor is required to approach the Court with a report in which he should give the progress of the investigation and specific reasons for the detention of the accused beyond the said period of ninety days. And if the Court is satisfied with the report of the Public Prosecutor, it may extend the said period of ninety days up to one hundred and eighty days.

“From the above, it comes to fore that emphasis has been laid by the Supreme Court on the importance of scrutiny by a Public Prosecutor so as not to leave a detenu in the hands of I.O. alone, inasmuch as Public Prosecutor has an option to agree or disagree with the reasons given by I.O. for seeking extension of time. Besides, request of I.O. extension of time is not a substitute for the report of a public prosecutor under the provisions of Section 43D (2)(b) of ULA(P) Act,” the Court observed.

The Court held, “The Supreme Court in Union of India v. Nirala Yadav, (2014) 9 SCC 457, on the issue of grant of default bail has held that on expiry of the period of 90 or 60 days, as the case may be, an indefeasible right accrues in favor of accused of being released on bail on account of default by investigating agency in completion of investigation within the period prescribed and accused is entitled to be released on bail.

 In the case, the Trial Court in effect has not at all dealt with the right of appellants to grant default bail, even when the application(s) were filed by them. It is also not denied that the Charge Sheet/Challan has been filed beyond the period of ninety days and, therefore, in those circumstances, notwithstanding the subsequent filing of challan, appellants could not have been deprived of their right to the benefit of default bail.”

 For the reasons discussed, the Court allowed the appeals. The Court ordered that the impugned Order dated May 25, 2019, passed by the court of Special Judge designated under NIA Act, Srinagar, is set-aside. The appellants are held entitled to bail in the aforesaid FIR, which is pending trial in the court of Special Judge designated under NIA Act, Srinagar, subject to their furnishing personal bond in the amount of Rs 1,00,000 each with two sureties each of the like amount to the satisfaction of the learned Presiding Officer, subject to the following conditions:

 (a) That appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the court or to any other authority;

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 (b) That appellants shall not do anything directly or indirectly to influence the witnesses for the prosecution nor to tamper with the evidence to be adduced against them;

 (c) That appellants shall remain present before the Court on the dates fixed for hearing of the case, for any reason due to unavoidable circumstances for remaining absent he has to give intimation to the court and make a proper application for permission to be present through counsel;

 (d) That appellants shall surrender their passport, if any, if not already surrendered before the Trial Court within one week and if they are not holders of the same, that fact should be supported by an affidavit. In case they have already surrendered the passport that fact should be supported by an affidavit;

 (e) that appellant shall not leave the territorial jurisdiction of Trial Court without prior permission of the Court;