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Supreme Court Overturns Default Bail in High-Stakes Terrorism Case

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Case Title – State of NCT of Delhi vs. Raj Kumar @ Lovepreet @ Lovely

Case No. – SLP(CRL.) No. 2503 of 2021

Dated on – 3rd January, 2024

Quorum – Hon’ble Justice Vikram Nath and Hon’ble Justice Rajesh Bindal

Facts of the Case –

First Information Report (FIR No. 154 of 2020) was registered on June 16, 2020, at the Special Cell, New Delhi, against Raj Kumar for offenses under Sections 13, 18, and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA); Sections 201 and 120-B of the Indian Penal Code, 1860 (IPC); and Sections 25, 54, and 59 of the Arms Act, 1959. Raj Kumar was arrested on June 18, 2020, and was initially remanded to police custody for three days, followed by judicial custody, and has since been held in Mandoli Jail, New Delhi. The initial 90-day period for investigation expired on September 15, 2020. Before this period ended, the Investigating Officer (IO) obtained an order on September 11, 2020, extending the investigation period by two months until November 11, 2020. As the investigation was incomplete by this date, and no police report under Section 173(2) of CrPC, 1973 was filed, another extension was sought by the Public Prosecutor on November 7, 2020, for an additional 30 days under Section 43D(2)(b) of UAPA, citing pending sanctions and awaited forensic reports. This extension was granted by the trial court on November 10, 2020, extending the investigation period until November 30, 2020. The investigation was completed, and a police report was filed on November 26, 2020. Raj Kumar filed for bail under Section 167 CrPC on November 11, 2020, which the trial court rejected on November 17, 2020. He then approached the High Court under Section 482 CrPC, which set aside the orders of September 11, 2020, and November 10, 2020, and granted him default bail. The State of NCT of Delhi appealed this decision before the Hon’ble Supreme Court of India.

Legal Provisions –

  • Section 173(2) of CrPC, 1973
  • Section 45 of UAPA, 1967

Contentions of the Appellant –

The appellant, State of NCT of Delhi, contended that the High Court erred in granting default bail to the respondent, Raj Kumar, by incorrectly applying the legal principles and precedents. The appellant argued that the High Court improperly relied on the judgment in Hitendra Vishnu Thakur v. State of Maharashtra, which pertains to the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), rather than the applicable provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The appellant emphasized that the provisions under Section 43D(2)(b) of UAPA allow for extensions of the investigation period beyond 90 days, up to a maximum of 180 days, if certain conditions are met. These conditions include demonstrating the progress of the investigation, providing specific reasons for the necessity of detention beyond 90 days, and completing the investigation. The appellant maintained that these conditions were adequately met and detailed in the application for extension, which was supported by the Public Prosecutor’s report. Additionally, the appellant contended that the High Court erroneously found that the necessary sanctions had already been obtained before the application for extension was filed, when in fact, some sanctions were still pending. The appellant also highlighted that the seriousness of the offenses involving terrorism and their extensive implications necessitated a thorough investigation, which justified the extensions granted by the trial court. The appellant concluded that the High Court’s decision to grant default bail was based on incorrect factual and legal premises, warranting its reversal by the Supreme Court.

Contentions of the Respondent –

The respondents contended that his right to default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (CrPC), was violated due to the prosecution’s failure to complete the investigation within the prescribed period of 90 days. He argued that the extensions granted by the trial court were not justified as they were based on insufficient and invalid grounds. The respondent asserted that the necessary sanctions required for the investigation under the Unlawful Activities (Prevention) Act, 1967 (UAPA), were already obtained prior to the prosecution’s request for additional time. Thus, there was no valid reason for the extension of the investigation period. Furthermore, the respondent relied on the precedent set in Hitendra Vishnu Thakur v. State of Maharashtra, arguing that extensions under such special legislations should be granted only for valid reasons explicitly mentioned in the statute, which, according to him, were not present in his case. He also claimed that the delay in obtaining forensic reports and other administrative reasons cited by the prosecution did not constitute valid grounds for extension under Section 43D(2)(b) of UAPA. The respondent maintained that the High Court correctly interpreted the legal provisions and found that his detention beyond the initial 90-day period was unlawful, thus entitling him to default bail. Therefore, he contended that the High Court’s order should be upheld, and the appeal by the State of NCT of Delhi should be dismissed.

Court Analysis and Judgement –

The Hon’ble Supreme Court, upon hearing the contentions of both parties, analysed the relevant legal provisions and precedents to determine the correctness of the High Court’s decision to grant default bail to the respondent. The Court noted that the High Court had erroneously relied on the judgment in Hitendra Vishnu Thakur v. State of Maharashtra, which pertained to the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), and was not directly applicable to the provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Court clarified that Section 43D(2)(b) of UAPA permits extensions of the investigation period up to 180 days if specific conditions are met, including demonstrating the progress of the investigation and providing specific reasons for the necessity of detention beyond 90 days. The Supreme Court found that the Public Prosecutor’s application for extension, dated November 7, 2020, was supported by valid reasons, including pending sanctions under Section 45(2) of UAPA and the awaited forensic report. These reasons were adequately explained and justified the need for further investigation time. The Court further observed that the investigation had been completed, and the police report under Section 173(2) CrPC was filed within the extended period, prior to November 30, 2020. The Court also addressed the High Court’s incorrect factual finding that all necessary sanctions had been obtained before the extension request, clarifying that some sanctions were still pending at the time. Additionally, the Supreme Court emphasized the seriousness of the offenses, involving terrorism with implications beyond national borders, underscoring the necessity for a thorough investigation. In conclusion, the Supreme Court held that the High Court had committed an error in granting default bail to the respondent based on incorrect legal and factual premises. Therefore, the Supreme Court allowed the appeal, set aside the High Court’s order, and directed that the respondent be taken into custody if not already detained.

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Judgement Reviewed by – Anurag Das

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Supreme Court Holds NewsClick Founder Prabir Purkayastha’s Arrest Invalid; Orders Release In UAPA Case

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Supreme Court Holds NewsClick Founder Prabir Purkayastha’s Arrest Invalid; Orders Release In UAPA Case

‘Case title: PRABIR PURKAYASTHA VS STATE(NCT OF DELHI)
Case no.: CRIMINAL WRIT PETITION NO. OF 2024 (D.No. 42896/2023)
Dated on: 15TH May 2024
Quorum: Justice Hon’ble Mr. Justice B.R. GAVAI and Mr. Justice SANDEEP MEHTA. 

FACTS OF THE CASE
The officers of the PS Special Cell, Lodhi Colony, New Delhi carried out extensive raids at the residential and official premises of the appellant and the company, namely, M/s. PPK Newsclick Studio Pvt. Ltd.(“said company”) of which the appellant is the Director in connection with FIR No. 224 of 2023 dated 17th August, 2023 registered at PS Special Cell, Lodhi Colony, New Delhi for the offences punishable under Sections 13, 16, 17, 18, 22C of the Unlawful Activities(Prevention) Act, 1967(for short “UAPA”) read with Section 153A, 120B of the Indian Penal Code, 1860(hereinafter being referred to as the ‘IPC’). During the course of the search and seizure proceedings, numerous documents and digital devices belonging to the appellant, the company and other employees of the company were seized. The appellant was arrested in connection with the said FIR on 3rd October, 2023 vide arrest memo (Annexure P-7) prepared at PS Special Cell, Lodhi Colony, New Delhi. It is relevant to mention here that the said arrest memo is in a computerised format and does not contain any column regarding the ‘grounds of arrest’ of the appellant. This very issue is primarily the bone of contention between the parties to the appeal. The proceedings of remand have been seriously criticized as being manipulated by Shri Kapil Sibal, learned senior counsel for the appellant and aspersions of subsequent insertions in the remand order have been made The appellant was presented in the Court of Learned Additional Sessions Judge-02, Patiala House Courts, New Delhi(hereinafter being referred to as the ‘Remand Judge’) on 4th October, 2023, sometime before 6:00 a.m. which fact is manifested from the remand order(Annexure P-1) placed on record of appeal with I.A. No. 217857 of 2023. The appellant was presented in the Court of Learned Additional Sessions Judge-02, Patiala House Courts, New Delhi (hereinafter being referred to as the ‘Remand Judge’) on 4th October, 2023, sometime before 6:00 a.m. which fact is manifested from the remand order (Annexure P-1) placed on record of appeal with I.A. No. 217857 of 2023. The appellant promptly questioned his arrest and the police custody remand granted by the learned Remand Judge vide order dated 4th October, 2023 by preferring Criminal Miscellaneous Case No. 7278 of 2023 in the High Court of Delhi which stands rejected by the learned Single Judge of the High Court of Delhi vide judgment dated 13th October, 2023. The said order is subjected to challenge in this appeal by special leave.

CONTENTIONS OF THE APPELLANT
Shri Kapil Sibal, learned senior counsel representing the appellant canvassed the following submissions in order to question the proceedings of arrest and remand of the appellant That the FIR No. 224 of 2023(FIR in connection of which appellant was arrested) is virtually nothing but a second FIR on same facts because prior thereto, another FIR No. 116 of 2020 dated 26th August, 2020 had been registered by PS EOW, Delhi Police(“EOW FIR”) alleging violation of Foreign Direct Investment(FDI) regulations and other laws of the country by the appellant and the company, thereby causing loss to the exchequer. A copy of the said FIR was, however, not provided to the appellant. By treating the EOW FIR as disclosing predicate offences, the Directorate of Enforcement(for short “ED”) registered an Enforcement Case Information Report(for short ‘ECIR’) for the offences punishable under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002(for short ‘PMLA’). The ED carried out extensive search and seizure operations at various places including the office of the company-M/s. PPK Newsclick Studio Pvt. Ltd., of which the appellant is the Director. The company assailed the ECIR by filing Writ Petition(Crl.) Nos. 1129 of 2021 and 1130 of 2021 wherein interim protection against coercive steps was granted by High Court of Delhi on 21st June, 2021. The appellant was also provided interim protection in an application seeking anticipatory bail vide order dated 7th July, 2021. The FIR No. 224 of 2023 has been registered purely on conjectures and surmises without there being any substance in the allegations set out in the report. the copy of FIR No. 224 of 2023 was neither made available in the public domain nor a copy thereof supplied to the appellant until his arrest and remand which is in complete violation of the fundamental Right to Life and Personal Liberty enshrined in Articles 20, 21 and 22 of the Constitution of India. Further submitted that the grounds of arrest were not informed to the appellant either orally or in writing and that such action is in gross violation of the constitutional mandate under Article 22(1) of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973(hereinafter being referred to as the ‘CrPC’).
That the arrest of the appellant is in gross violation of the provisions contained in Article 22 of the Constitution of India, hence, the appellant is entitled to seek a direction for quashment of the remand order and release from custody forthwith. That the action of the Investigating Officer in arresting and in seeking remand of the appellant is not only mala fide but also fraught with fraud of the highest order. Shri Sibal implored the Court to accept the appeal, set aside the impugned orders and direct the release of the appellant from custody in connection with the above FIR.

CONTENTIONS OF THE RESPONDENTS
Shri Suryaprakash V. Raju, learned ASG, appearing for the respondent vehemently and fervently opposed the submissions advanced by the learned counsel for the appellant and made the following pertinent submissions He urged that the judgment in the case of Pankaj Bansal(supra) has been held to be prospective in operation by this Court in the case of Ram Kishor Arora(supra). The appellant was remanded to police custody on 4th October, 2023 whereas the judgment in the case of Pankaj Bansal(supra) was uploaded on the website of this Court in the late hours of 4th October, 2023 and hence, the arresting officer could not be expected to ensure compliance of the directions given in the said judgment. He thus urged that the alleged inaction of the Investigating Officer in furnishing the grounds of arrest in writing to the appellant cannot be called into question as the judgment in Pankaj Bansal(supra) was uploaded and brought in public domain after the remand order had been passed. Without prejudice to the above, learned ASG urged that as per the appellant’s version set out in the pleadings filed before the High Court of Delhi, he was actually remanded to the police custody after 7:00 a.m. With reference to these pleadings, Shri Raju contended that the appellant cannot be heard to urge that he was remanded to the police custody in an illegal manner and without the grounds of arrest having been conveyed to him in writing. Learned ASG referred to the provisions contained in Articles 22(1) and 22(5) of the Constitution of India and urged that there is no such mandate in either of the provisions that the grounds of arrest or detention should be conveyed in writing to the accused or the detenue, as the case may be. (v) He urged that the right conferred upon the appellant by Article 22(1) of the Constitution of India to consult and to be defended by a legal practitioner was complied with in letter and spirit because the relative of the appellant, namely, Shri Rishabh Bailey, was informed before producing the appellant before the learned Remand Judge. Admittedly, Shri Rishabh Bailey had intimated the appellant’s Advocate, Shri Arshdeep Khurana regarding the proposed proceedings of police custody remand of the appellant. He urged that the Advocate transmitted a written objection against the prayer for police custody remand over WhatsApp through the Head Constable Rajendra Singh and the learned Remand Judge has taken note of the said objection opposing remand in the remand order dated 4th October, 2023 and thus it would be futile to argue that the order granting remand is illegal in any manner.
He urged that the Advocate transmitted a written objection against the prayer for police custody remand over WhatsApp through the Head Constable Rajendra Singh and the learned Remand Judge has taken note of the said objection opposing remand in the remand order dated 4th October, 2023 and thus it would be futile to argue that the order granting remand is illegal in any manner. Learned ASG further contended that now the investigation has been completed and charge sheet has also already been filed and, thus, the illegality/irregularity, if any, in the arrest of the appellant and the grant of initial police custody remand stands cured and hence, the appellant cannot claim to be prejudiced by the same. Learned ASG further urged that there is a presumption regarding the correctness of acts performed in discharge of judicial functions and hence, the noting recorded in the remand order dated 4th October, 2023 that the Advocate for the appellant had been heard on the remand application and that the grounds of arrest had been conveyed to the appellant cannot be questioned or doubted. He thus implored the Court to dismiss the appeal and affirm the order passed by the High Court of Delhi.

LEGAL PROVISIONS
Article 141 of the Constitution of India: That the law declared by the Supreme Court shall be binding on all courts within the territory of India.
Article 22(1) of the Constitution of India: No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Section 43C of the UAPA: Any officer arresting a person under section 43A shall, as soon as may be, inform him of the grounds for such arrest.
Section 19(1) of the PMLA: Allows ED officers to arrest an individual “on the basis of material in possession (and) reason to believe (to be recorded in writing) that the person is guilty.

COURT’S ANALYSIS AND JUDGEMENT
Upon a careful perusal of the statutory provisions (reproduced supra), we find that there is no significant difference in the language employed in Section 19(1) of the PMLA and Section 43B(1) of the UAPA which can persuade us to take a view that the interpretation of the phrase ‘inform him of the grounds for such arrest’ made by this Court in the case of Pankaj Bansal(supra) should not be applied to an accused arrested under the provisions of the UAPA. We find that the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B(1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA. The contention advanced by learned ASG that there are some variations in the overall provisions contained in Section 19 of the PMLA and Section 43A and 43B of the UAPA would not have any impact on the statutory mandate requiring the arresting officer to inform the grounds of arrest to the person arrested under Section 43B(1) of the UAPA at the earliest because as stated above, the requirement to communicate the grounds of arrest is the same in both the statutes. As a matter of fact, both the provisions find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India. Hence, applying the golden rules of interpretation, the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied. there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. Thus, any attempt to violate such fundamental right, guaranteed by Articles, 20, 21 and 22 of the Constitution of India, would have to be dealt with strictly. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused. we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be. the arrest of the appellant followed by remand order dated 4th October, 2023 and so also the impugned order passed by the High Court of Delhi dated 13th October, 2023 are hereby declared to be invalid in the eyes of law and are quashed and set aside. Though we would have been persuaded to direct the release of the appellant without requiring him to furnish bonds or security but since the charge sheet has been filed, we feel it appropriate to direct that the appellant shall be released from custody on furnishing bail and bonds to the satisfaction of the trial Court. We make it abundantly clear that none of the observations made above shall be treated as a comment on the merits of the case. The appeal is allowed in these terms. Pending application(s), if any, shall stand disposed of.

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Judgement Reviewed by – HARIRAGHAVA JP

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NIA Chargesheeted Accused in IS Recruitment Conspiracy: Court Upholds Denial of Default Bail, Validates Sanction under UAPA

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Case Name:  Ammar Abdul Rahiman v. National Investigation Agency  

Case No.: CRL.A. 79/2024 & CRL.M.A. 2650/2024 

Dated: May 06, 2024 

Quorum: Justice Suresh Kumar Kait and Justice Manoj Jain 

 

FACTS OF THE CASE: 

The Islamic State of Iraq and Syria (ISIS) was known to be affiliated with a man named Mohammed Ameen Kathodi@ Abu Yahya (A-1), who was reportedly running multiple ISIS propaganda channels on several secure social media platforms. This information was deemed credible and reported to the Central Government. He had been indoctrinating naive and credulous Muslim adolescents and spreading the violent Jihadi doctrine of ISIS through these means.  

According to the investigative agency, he (A-1) and his friends intended to carry out a religious pilgrimage, or “Hijrah,” to areas under ISIS control and Jammu and Kashmir (J&K) in order to commit acts of terrorism. They had obtained virtual numbers and phoney SIM cards in order to create multiple identities on secure social media chat platforms. They then used these to communicate with other like-minded individuals in order to raise money for funding ISIS operations and to carry out anti-national crimes in India. 

On March 15, 2021, three individuals were taken into custody: Abdul Karim Anwar (A-2), Rahees Rasheed (A-3) and accused Mohammed Ameen Kathodi @ Abu Yahya (A-1). Their involvement was made clear by the evidence gathered for the investigation, which identified them as ISIS members—a terrorist group that is outlawed. On September 8, 2021, the National Investigating Agency (NIA) issued the first chargesheet against them, alleging a variety of violations covered by the Unlawful Activities (Prevention) Act, 1967 (better known as “UAPA”) and the Indian Penal Code.  

The appellant (A-10) in this case was taken into custody on August 4, 2021, and on January 28, 2022, a supplemental chargesheet about him and the other accused parties was submitted. 

 

LEGAL PROVISION: 

Section 120B of IPC- If there is no specific provision in this Code for the punishment of such a conspiracy, then anybody found to be a party to a criminal conspiracy to commit an offence that carries a sentence of death or imprisonment for a period of two years or more would be punished as though they had assisted in the commission of the offence. 

Section 121A of IPC- Anybody who, whether inside or outside of India, plans to carry out any of the offences listed in section 121 or plots to intimidate the Central Government or any State Government by using force or the threat of using force will be imprisoned for life or for ten years. 

Section 17 of UAPA- -Anyone who, whether directly or indirectly, raises, provides, or collects money for any person or people, whether from legal or illicit sources, or tries to provide to, raises, or collects money for any person or people knowing that the money is likely to be used, in whole or in part, by that person or people, or by a terrorist organisation, terrorist gang, or by an individual terrorist, to commit a terrorist act, whether or not the money was actually used for the commission of the act, shall be punished with a minimum sentence of five years, but it may be extended to life imprisonment. 

Section 38 of UAPA. Offence relating to membership of a terrorist organisation. An offence related to membership in a terrorist organisation is committed by someone who identifies or claims to be linked with one with the objective of advancing the operations of the organisation 

 

CONTENTIONS OF THE APPELLANT: 

The learned counsel for the appellants strongly contended that the appellant, who is about thirty years old, is a law-abiding individual with strong social ties and no criminal history. It is emphasised that the main accusations levelled against the accused are that his sister-in-law (A4) radicalised him to support ISIS, and that his phone contained multiple photos demonstrating that he had access to extreme sermons, ISIS-related videos, and accounts on Instagram that supported the group.  

The fact that he was seeing content that had been downloaded into his electronic devices would not be significant in and of itself because there is no proof that he has ever shared, acted upon, or taken any action related to the content. 

It is also asserted that, of the approximately 1000 pages that the involved Forensic Labs claim to have recovered from his two mobile phones, the prosecution appears to be relying on six pages of photographs and one page of browser history (D-140). He has never acknowledged being a member of, engaged in, or been connected to any terrorist group, despite the fact that pictures and online history have been recovered. 

It is further stated that the mere fact that charges had been filed would not prevent bail from being granted, even though it would be extremely difficult for any accused person to get bail in such a case.  

It is argued that the learned Trial Court should have conducted a surface analysis of the evidence’s probative value even though the charges had been established. If this had been done correctly, it would have become evident to the Trial Court that there was no admissible evidence, indicating a prima facie case against the accused.  

 

CONTENTIONS OF THE RESPONDENTS: 

The argument is that the chargesheet was presented to the appropriate court regarding the appellant on January 28, 2022, and the learned trial court determined the charges against him on October 31, 2022, specifically noting that there was a prima facie case for offences under Section 120B read with Sections 38 and 39 of UAPA read with Section 2(o) and Section 13 of UAPA.  

It was also argued that A-1 Mohammed Ameen Kathodi@ Abu Yahya had already passed away, according to the information provided regarding the accusations made against the appellant and his co-accused. A-2 Mus’Hab Anwar and A-3 Rahees Rasheed were freed on default bail, and A-8 Obaid Hamid was released on bond because he had not been charged with any offences covered by Chapter IV or Chapter VI of the UAPA. 

It is asserted that the thorough investigation unequivocally reveals the existence of a criminal conspiracy involving all of the accused, and that the Investigating Agency has successfully deciphered this conspiracy with the aid of several pivotal events. 

Four of the appellant’s mobile devices are allegedly found during the alleged search of their residential property on August 4, 2021, in accordance with Search and Seizure Memo (D-76). For digital data extraction, these were forwarded to CERT-In. When the report and data from these digital devices were carefully examined, it was discovered to contain a number of incriminating materials, including images of different Muslim extremist preachers and movies from ISIS.  

In 2015, it was argued that ISIS was declared a terrorist organisation and that, despite this, there was sufficient evidence in the record to support the appellant’s continued affiliation with and support of the organisation. ISIS is listed as a banned terrorist organisation under the First Schedule of the United Antiterrorism Provisions Act (UAPA), with serial number 38. The claim also makes reference to social media material that was acquired from the accounts of A-10 and his sister-in-law/co-accused, Deepthi Marla (A-4). It was established that A-4 and A-6 had talked about their intentions for the Hijrah, and that A-10 was a part of this plot.  

 

COURT’S ANALYSIS AND JUDGMENT: 

According to the court, they were also aware of Section 43-D(5) of the UAPA, which establishes a kind of restriction and limitation on the granting of bail in the event that the accused has committed offences covered by Chapter IV and/or Chapter VI of the UAPA and the prosecution’s case against them is presumed to be valid.  

This Court can still very well contemplate granting bail under the aforementioned circumstances, even though the allegations have been established and the order in question has not been contested. We might also refer to Chandeep Singh (above), where it was noted that the trial court has a duty to consider the role of the accused by carefully reading the complaint and taking into account the limitations imposed by Section 43-D(5) of UAPA, adding that bail cannot be denied simply because the charges have been filed.  

As a result, it was clear that the court in a UAPA case might take bail into consideration even after the charges were established. The right to request bail is unalienable and may be used at any time. It never goes out of style. 

He never had access to the texts that were sent between him and his co-accused, so he cannot be held accountable for them. To claim that someone was operating in support of a prohibited terrorist group would be impossible if all they did was follow news reports on the Middle East and Israel-Palestine conflict or listen to hate speeches from radical Muslim preachers.  

In light of this, it appears incorrect and inappropriate to use Sections 38 and 39 of the UAPA. The court ruled that the statutory bar under Section 43-D (5) would only apply in cases where the accused person’s offence is covered by either Chapter IV or Chapter VI of the UAPA. The appellant has not been accused of committing any crimes under Chapter IV, and in light of what we have already discussed, we believe that the evidence in the record does not point to the appellant having committed any crimes under UAPA Sections 38 or 39, which are under Chapter VI.  

The appellant was ordered to be released on bail under any terms and restrictions that the concerned learned Special Court deemed appropriate and fitting after the court granted the current appeal. The prosecution may request the cancellation of bail without bringing this case before this court if there is any violation of any condition set forth by the learned Trial Court, or if the appellant makes any direct or indirect threats or attempts to influence any witness, or if the appellant tries to delay the trial.  

The court further stated that the aforementioned remarks were only intended to be used in determining the bond amount and were tentative in nature.  

The statements above, which were clearly not a conclusive statement regarding the merits of the case, will not persuade the Learned Trial Court. The trial court would have the freedom to reach any decision following a thorough review of the material, as the court has limited its proceedings to the mere claims thus far.  

 

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Judgment reviewed by Riddhi S Bhora. 

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“THE MALEGAON BLAST CASE: UNRAVELLING LEGAL COMPLEXITIES IN INDIA’S FIGHT AGAINST TERRORISM”

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 ABSTRACT

 The Malegaon blast of 2008, stands as an agonizing exemplification to the intricate nature of terrorism investigations in India.  The Malegaon Blast Case, 2008 sent shivers down the spines of the people throughout India, highlighting the impending threat of terrorism in the socio-political landscape of the country. The repercussions of the blast led to a launch of comprehensive investigations aimed at identifying the perpetrators and bringing them to justice. However, the path to justice proved to be perforated with complexities, both legal and practical. To understand the legal framework surrounding the investigation of terrorism in India, it is crucial to dive into the legislative landscape. The legislation provides the law enforcement agencies with utmost powers. However, these powers must be exerted prudently to prevent the latent violation of the human rights as well as to ensure agglutination of due process of law. Despite, the sturdy legal framework, the investigators often face daunting adversities during investigations. The Malegaon Blast Case demonstrates these adversities. Moreover, the ubiquitous dominance of political and religious factors adds another layer of convolutions to terrorism investigations, often leading to allegations of prejudice or intrusion. Prosecuting those amenable for the acts of terrorism is another obstacle. The burden of proof in the cases of terrorism is eminently high, requiring the prosecution to not only substantiate the guilt of the accused but also their collusion in a larger terrorist network. Moreover, the prolonged legal proceedings and the baroque nature of evidence often result in persistent trials, testing the patience and resources of all involved parties. This article scrupulously examines the legal framework governing such investigations, colligating them with the austere realities faced by the investigators of such cases on the ground. By analysing the historical context, legal provisions, investigative challenges and prosecutorial obstacles, this study aims to shed light on the labyrinthine web surrounding the Malegaon Blast Case. Through an analysis of implications and potential reforms, it provides insights into effectively navigating similar cases in the future.

KEYWORDS – Malegaon Blast, Terrorism, Bombing, Investigation, Prosecution, Chargesheet, Explosives, Forensic Evidence, Conspiracy, Arrests, Trial, Legal Proceedings, Witness Testimony, MCOCA, NIA, UAPA, Counterterrorism, Communal Tensions, Judicial Inquiry

 INTRODUCTION

 On the 29th of September, 2008, a blast took place near Bhikku Chowk in Malegaon, a town in the Nasik District of the Indian state of Maharashtra approximately 200 Km northeast of Mumbai. Pretty much, at the same instance, another blast occurred in Modasa, Gujarat. The explosion occurred on the eve of Navaratri. These onslaughts resulted in the lamentable loss of a 15-year-old boy with total of 10 injured in Modasa, Gujarat[1] and six lives in Malegaon with a total of 101 people enduring injuries[2]. Concretely, the modus operandi resembled a blast that took place in Delhi just three days prior.

The blasts were initiated by two low-intensity bombs strapped to a Hero Honda motorcycle, which eventually served as an imperative hint leading the police to the perpetrators. Primitively, scepticism swerved towards the Muslim extremists, inducing the deployment of the Mumbai Anti-Terror Squad (ATS) to assist the Malegaon police in the investigation. The investigation was backed by the ATS Chief Hemant Karkare, lamentably killed during the 26/11 attacks in Mumbai by Lashkar-e-Tayyaba terrorists, the ATS later exposed evidence inculpating the Hindu extremists’ groups. On the date of 24th of October, 2008, three individuals namely Prime Suspect Sadhvi Pragya Singh Thakur (Member of Lok Sabha in BJP – Who as per the update of the Malegaon Blast Case on 26th April, 2024, on several occasion in the past, failed to appear before the court to record her final statement regarding the 2008 Malegaon Blast Case on the pretext of illness[3]), Shiv Narayan Gopal Singh Kalsanghra and Shyam Bhawarlal Sahu were arrested by the police concerning the blasts that took place in Malegaon. Posterior investigations unveiled that other Hindu extremist groups, including the Rastriya Jagran Manch, Sharda Sarvagya Peeth, Hindu Rashtra Sena and Abhinav Bharat were enmeshed, leading to the further arrests. The probe took a vital turn with the arrest of Lt. Col. Prasad Shrikant Purohit, a serving Army officer, on November 4, 2008. However, the case soon became politicized, with the Bharatiya Janata Party (BJP) and the Shiv Sena accusing the ATS of possessing political impetus behind the arrests, while also levying allegations against the Congress. The investigation of the ATS unveiled the potential connections between the accused and the other acts of terrorism, inclusive of the Modasa blast in Gujarat, the 2008 Malegaon Blast, the 2007 Mecca Masjid Blast in Hyderabad[4], and the Samjhauta Express Blast in 2007[5]. The prosecutors instituted charges under the Maharashtra Control of Organized Crime Act (MCOCA)[6], involving prior chargesheets against one or more of the accused. The special court in July, 2009, dismissed the MCOCA charges, citing the lack of cognizance in the other cases at the time of filing the chargesheet[7] for the 2008 Malegaon Blast. However, in 2010, the Bombay High Court re-established the MCOCA charges, citing that the cognizance appertains to the crime, not the accused and since the cognizance had been taken in the other cases, MCOCA could be applied. On the 15th of April,2015, the Supreme Court of India overturned the decision of the Bombay High Court, dismissing the MCOCA charges due to the insufficiency in evidence in the prior cases. The court instructed the High Court to establish a special court for swift and prompt legal proceedings. On the 25th of July, 2015, Rohini Salian, the Special Public Prosecutor in the case alleged that the National Investigation Agency (NIA) had directed her to adopt a lenient stance towards the accused, flaming further controversies and raising questions about the impartiality of the investigations of the case.

INVESTIGATIVE REALITIES

The investigators tasked to unsnarl the convoluted layers of the Malegaon Blast Case withstood different adversities, including the pragmatic obstacles, operational restrictions, and the deficiencies in the resources throughout the investigative process. From gathering intelligence to collecting evidence and navigating the complexities of socio-political dynamics, the challenges often impeded the pursuit of justice in cases of terrorism. The primary suspects initially identified in the Malegaon Blast Case Noor-Ul-Huda, Shabeer Batterywala, and Raees Ahmad. Initially, the Maharashtra police suspected the involvement of groups such as Bajrang Dal, Lashkar-e-Toiba, or Jaish-e-Mohammed, but no evidence was emancipated incriminating any of these groups. However, suspicion later shifted towards Harkat-ul-Jihad-al-Islami. In May, 2008, a hoard of RDX explosives and automatic rifles were discovered in the region, leading to the arrest of former members of the Students Islamic Movement of India. The explosives used in the September, 2007 Malegaon Blast case resembled those used in the 2006 Mumbai Train Blast case, which were ascribed to the Islamic groups. On the 12th of September, 2006, the Prime Minister of India stated that it would be inapt to definitively exonerate Hindu groups in the Malegaon Blast Case. The Prime Minister of India accentuated the need for a thorough investigation aimed at unveiling the truth without any prejudices and pre-conceived notions.

In an Op-Ed published on the 11th of September, B. Raman illuminated that it was immature to dismiss the possibility of the involvement either by the Hindu or Islamic extremists. B. Raman pointed out the attempts by certain Muslim community leaders to seed schism by questioning the fairness of the police officials as well as levelling accusations against the investigating officers. On the 30th of October, 2006, the arrests embroiled members of the Students Islamic Movement of India, suggesting progress in the case according to the statements of the police officials. On the 28th of November, 2006, the Mumbai Police disclosed that two Pakistani Nationals were involved in the explosions. Despite this, they continued their search for the eight additional suspects. The ATS had already incarcerated eight suspects, inclusive of two individuals related to the Mumbai Serial Blasts of 13th July 2011, connected with the Malegaon Blast Case, resulting in 17 fatalities and over 133 injuries[8].

 The ATS concluded the liaison of Hindu Nationalists groups based on the composure of the explosives used. The case was eventually taken over by the National Investigation Agency (NIA) in 2013, leading to the arrest of individuals associated with the Hindu Right-Wing group Abhinav Bharat. The charges furnished on the initially arrested Muslim men were dismissed by the MCOCA in 2016.

PROSECUTORIAL CHALLENGES

The Malegaon Blast Case, furnishes numerous prosecutorial adversities, reflecting the complexities inherent in prosecuting the cases of terrorism and communal violence. These adversities span from gathering evidences against the perpetrators to presenting a cogent case before the courts, and they often involve navigating the legal, procedural as well as the socio-political hurdles. The key prosecutorial adversities faced in the Malegaon Blast Case are as follow:

  1. Assemblage and Conservation of the Evidences– Prosecutors faced eloquent hurdles in the assemblage as well as the conservation of the evidences in the Malegaon Blast Case. It included the physical evidences such as the residue of the explosives, the forensic samples, and the debris from the site of the blast. Taking into consideration, the chaotic aftermath of the explosion and the passage of time, the conservation of the evidences became even more adverse. Moreover, the need to establish the chain of custody and ensure the admissibility of evidence in the court adds a cream-layer to the complexities.
  2. Testimony of the witnesses and Reliability– Fending the testimony of the witnesses is pivotal for instituting a strong case, but it is often formidable in the cases involving terrorism and communal violence. Witnesses might be reluctant to step forward due to the fear of retaliation, intimidation, or societal pressure. Moreover, ensuring the credibility of the witnesses amidst the consolidated communal sentiments posed a challenge for the prosecutors. The Malegaon Blast Case led to the examination of 300 witnesses, out of which 37 witnesses turned hostile so far[9]. Furthermore, the chances of the witness tampering with the information during testifying as well as coercion aggravated these issues, making it formidable to present a coherent narrative before the court.
  3. Complexity of Conspiracy charges – The prosecutors had to navigate through the convolutions of conspiracy charges, particularly when dealing with multiple defendants and convolute plots. Unravelling the web of connections between the accused, their motivations, and the conspiracy for the purpose of the blast demands substantial investigative resources and legal expertise. It became even more adverse when an accused approached the special court seeking for an action against a former ATS officer alleging that the evidences brought in record by the officer during the trial was planted evidence in the home of a co-accused. The ATS claimed that there was a conspiracy to defame him and that the accusations on him were made as an “afterthought”[10].
  4. Admissibility of Forensic and Technical Evidence – Furnishing the forensic as well as the technical evidences in court are poses vital adversities, especially when dealing with complex analysis of explosives and digital forensics. Ensuring the credibility as well as the admissibility of such evidence require assent to rigid procedural standards and expert testimony. Defense attorneys might challenge the validity of such forensic evidences, leading to prolonged judicial process over the admissibility and the weightage of the technical evidences.
  5. Public and Political Compression – The Malegaon Blast Case, like any other high-profile cases, is subjected to profound public and political scrutiny. Political interference as well as influence, media sensationalism, and communal stress further complicate the prosecutorial process, possibly sabotaging the integrity of the legal proceedings. It is evident from the fact that Bhavesh Patel, one of the suspects of the Malegaon Blast Case, wrote a letter to a CBI Court alleging that the Union Ministers Sushil Kumar Shinde, RPN Singh, Shri Prakash Jaiswal and Congress Leader Digvijaya Singh had harassed him and pressurized him to entrap RSS Leaders Mohan Bhagwat as well as Indresh Kumar as a conspirer in the Malegaon Blast Case[11].

IMPLICATIONS

The implications of the Malegaon Blast Case stretch far beyond the four walls of the courtroom, reverberating deeply within the socio-political landscape of India and affecting various stakeholders inclusive of the Government of India, Law Enforcement Agencies, Minority Community, Civil Society as well as the broader aspects of the Indian public. The implications in the Malegaon Blast Case are as follows:

  1. Counter-Terrorism Policies and Strategies – The Malegaon Blast Case accentuates the need for vigorous and effective Counter-Terrorism policies and strategies in India. It stresses on the adversities posed by the autochthonous terrorism and the exigent for motivated measures to prevent fanaticism, battle extremist ideologies, and reinforce the intelligence-sharing gimmick. The case of Malegaon blast coaxes a review of existing counter-terrorism framework and the development of targeted initiatives to address springing threats.
  2. Law Enforcement Practices and Procedures– The case of the Malegaon Blast throws light on the strength and the weaknesses of the law enforcement practices and procedures in India, especially on the pretext of the investigation of terrorism. It accentuates the significance of professionalization, training, and capacity -building within the investigating agencies to improvise their capabilities in handling the complexities of the cases. Furthermore, it stresses on the need for the assent to legal as well as procedural safeguards to ensure the integrity of investigations and prosecutions.
  3. Social Cohesion and Community Relations – The Malegaon Blast Case has consequential ramifications for social cohesion and community relations in India, especially between the religious and ethnic groups. It emphasizes on the menace of the communal dichotomization and the potential for violence ignited by the religious extremism and the sectarian tensions.
  4. Protection of Minority Rights and Civil Liberties – The case of Malegaon Blast raises a distress regarding the protection of the rights of the minorities in the country as well as the civil liberties, especially on the pretext of counter-terrorism measures. It accentuates the significance of upholding the principles of the Constitution of India such as the right to equality, freedom of religion, and due process. Shielding these rights is a necessity to prevent discrimination, arbitrary detention, and violations of privacy stating national security as a concern.
  5. Rule of Law and Judicial Independence – The case of Malegaon Blast is a litmus test for the rule of law as well as the judicial independence in India. It accentuates the significance of impartial and transparent judicial proceedings, free from political interference or undue influence.
  6. Media and Public Discourse– The Malegaon Blast case has significant ramifications for media coverage and public discourse concerning terrorism and communal violence in India. It stresses the responsibilities of the media to report exactly and responsibly all the facts of such sensitive issues, avoiding sensationalism or insurgent verbosity that may magnify tensions. The court ,thus, rejected the plea of NIA for a gag on media stating the gravity of the offence as well as the national security and ensured the media that it can continue to report on the trial, providing information and maintaining the accountability in the legal process[12].

LEGAL PROVISIONS

The Malegaon Blast Case dissects the legal framework governing the act of terrorism investigations in India and scrutinizes the relevant statutes including the Unlawful Activities (Prevention) Act, 1967 (UAPA), the National Investigation Agency, 2008 (NIA), the Indian Penal Code,1860, the Code of Criminal Procedure,1973, the Indian Evidence Act, 1872, Explosive Substances Act, 1908, the Indian Arms Act, 1959, the Maharashtra Control of Organised Crime Act (MCOCA), 1999,  
and the Constitution of India.

  1. Unlawful Activities (Prevention) Act, 1967[13]
  • Section 15 to 38 of the UAPA,1967 prescribes the offenses, investigations and the penalties under the Act.
  • Section 43D of the UAPA,1967 prescribes the conditions for grant of bail for the offenses under this Act.
  1. Indian Penal Code, 1860[14]
  • Section 120B of IPC,1860 prescribes the definition of Criminal Conspiracy
  • Section 302 to 307 of IPC,1860 prescribes the offenses relating to murder and attempt to murder
  • Section 324 of IPC,1860 prescribes the punishment for Voluntarily causing hurt by dangerous weapons or means
  • Section 326 of IPC, 1860 prescribes the punishment for Voluntarily causing grievous hurt by dangerous weapons or means
  • Section 153A of IPC,1860 prescribes the punishment for Promoting enmity between different groups on grounds of religion, race, place of birth, residence, languages etc., and doing acts prejudicial to maintenance of harmony
  • Section 295A of IPC, 1860 prescribes the punishment for Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
  1. National Investigation Agency Act, 2008[15]

The NIA Act provides for the establishment of the NIA and empowers it to investigate and prosecute the offenses affecting the sovereignty, integrity, and security of India, including terrorism.

  1. Code of Criminal Procedure, 1973[16]
  • Section 173 of CRPC, 1973 prescribes the procedure for investigation by police officer in charge of a police station
  • Section 167 of CRPC, 1973 prescribes the procedure when investigation cannot be completed in twenty-four hours.
  • Section 207 of CRPC, 1973 prescribes the supply to the accused a copy of police report and other documents
  • Section 309 of CRPC, 1973 prescribes the power to postpone or adjourn proceeding
  • Section 311 of CRPC, 1973 prescribes the power to summon material witness, or examine person present
  • Section 313 of CRPC, 1973 prescribes the power to examine the accused
  1. Indian Evidence Act, 1872[17]
  • Section 24 to 35 of the Indian Evidence Act, 1872 prescribes the provisions related to the relevancy of facts and admissibility of evidence
  • Section 45 to 51 of the Indian Evidence Act, 1872 prescribes the provisions regarding the opinion of experts
  • Section 118 to 134 of the Indian Evidence Act, 1872 prescribes the provisions regarding witnesses
  1. The Constitution of India[18]
  • Article 21 of the Constitution of India deals with the Protection of life and personal liberty
  • Article 22 of the Constitution of India deals with the Protection against arrest and detention in certain cases
  • Article 39A of the Constitution of India deals with Equal justice and free legal aid
  • Article 14 of the Constitution of India deals with the Right to equality before law
  • Article 15 of the Constitution of India deals with the Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
  1. The Explosive Substances Act, 1908[19]
  • Section 3 of the Explosive Substances Act, 1908 prescribes the Punishment for causing explosion likely to endanger life or property
  • Section 4 of the Explosive Substances Act, 1908 prescribes the punishment for Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property
  • Section 5 of the Explosive Substances Act, 1908 prescribes the punishment for Making or possessing explosives under suspicious circumstances
  • Section 6 of the Explosive Substances Act, 1908 prescribes the punishment of abettors
  1. The Arms Act, 1959[20]
  • Section 25 of the Arms Act, 1959 prescribes the Punishment for certain offenses relating to arms and ammunition
  • Section 27 of the Arms Act, 1959 prescribes the Punishment for using arms and ammunition in contravention of Section 5 or Section 7
  • Section 28 of the Arms Act, 1959 prescribes the Punishment for unlawfully acquiring, possessing, or carrying prohibited arms or prohibited ammunition
  1. The Maharashtra Control of Organized Crimes Act (MCOCA), 1999[21]
  • Section 3 of the MCOCA prescribes the Offense of organized crime
  • Section 4 of the MCOCA prescribes the Punishment for organized crime

CONCLUSION

In conclusion, this article fuses all the key findings and arguments presented throughout the study. It reflects on the lessons learned from the Malegaon Blast Case and the broader ramifications for investigations concerning terrorism in India. Furthermore, it accentuates the exigent for reforming legal frameworks, enhancing investigative capabilities, and asserting the principles of justice and liability in the brawls against terrorism. Eventually, it advocates for a panoramic approach that balances security exigent with respect to human rights and the rule of law. The Malegaon Blast Case marks an important milestone in India’s quest for justice, liability, and communal harmony. It brought a broader ramification for India’s counter-terrorism efforts and underscores the significance of sturdy investigative mechanism, intel-sharing partnership, as well as the legal frameworks to confront terrorism effectively. It highlights the need for continuous improvisation in investigative techniques, forensic capabilities, and legal procedures to ensure smooth and speedy adjudication of terrorism cases. Furthermore, it serves as a prompt of the menace of the religious extremism and sectarian violence and accents the significance of nurturing ecumenical dialogue, tolerance, and understanding.

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Written by – Sruti Sikha Maharana

References:

[1] https://nia.gov.in/case-detail.htm?16

[2] https://www.hindustantimes.com/cities/mumbai-news/2008-malegaon-blast-15-years-on-prosecution-closes-evidence-against-7-accused-101694719119028.html

[3] https://www.freepressjournal.in/india/malegaon-bomb-blast-case-after-repeated-warnings-pragya-singh-thakur-finally-appears-before-court

[4] https://indianexpress.com/article/what-is/mecca-masjid-blast-2007-hyderabad-nia-aseemanand-5139063/

[5] https://economictimes.indiatimes.com/news/politics-and-nation/2007-samjhauta-express-blast-case-68-dead-all-accused-acquitted/articleshow/68506483.cms?from=mdr

[6]https://www.indiacode.nic.in/bitstream/123456789/16362/1/the_maharashtra_control_of_organised_crime_act,_1999.pdf

[7] https://nia.gov.in/writereaddata/Portal/CasesPdfDoc/RC-05-2011-NIA-DLI-1.pdf

[8] https://pib.gov.in/newsite/PrintRelease.aspx?relid=73229

[9] https://www.ndtv.com/india-news/another-key-witness-turns-hostile-in-malegaon-blast-case-trial-4023784

[10] https://indianexpress.com/article/cities/mumbai/malegaon-blast-case-accused-claims-ats-officer-planted-evidence-home-co-accused-8659356/

[11] https://www.ndtv.com/india-news/ajmer-blast-to-malegaon-bombings-new-row-as-terror-suspects-allege-political-pressure-535777

[12] https://indianexpress.com/article/india/malegaon-trial-court-rejects-nia-plea-for-gag-on-media-6046468/

[13] https://www.mha.gov.in/sites/default/files/A1967-37.pdf

[14] https://www.indiacode.nic.in/bitstream/123456789/2263/1/aA1860-45.pdf

[15] https://www.mha.gov.in/sites/default/files/2022-08/The%2520National%2520Investigation%2520Agency%2520Act%2C%25202008_1%5B1%5D.pdf

[16] https://www.indiacode.nic.in/bitstream/123456789/15272/1/the_code_of_criminal_procedure%2C_1973.pdf

[17] https://www.indiacode.nic.in/bitstream/123456789/15351/1/iea_1872.pdf

[18] https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf

[19] https://www.indiacode.nic.in/bitstream/123456789/2342/1/AAA1908___06.pdf

[20] https://www.indiacode.nic.in/bitstream/123456789/1398/1/A1959_54.pdf

[21] https://www.indiacode.nic.in/bitstream/123456789/16362/1/the_maharashtra_control_of_organised_crime_act,_1999.pdf

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If no Special Court is designated, Court of Sessions try UAPA Cases: Supreme Court

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Case Title: THE STATE OF WEST BENGAL VERSUS JAYEETA DAS
Case No:  SLP(Crl.) No(s). 7880 of 2023
Decided on: 18th April,2024
Quorum: THE HON’BLE MR. JUSTICE MEHTA

Facts of the case

SI Raju Debnath of the STF Police Station in Kolkata, on December 28, 2021, regarding the discovery of an unclaimed black backpack that had been left behind at Sahid Minar and included Following the discovery of several written CPI (Maoist) posters and incriminating articles about the organization’s activities. After conducting a preliminary inquiry, the investigating officer filed an application at the Court of the Honorable Chief Metropolitan Magistrate is pleading for the inclusion of offenses that are punishable by the Unlawful Activities (Prevention) Act, 1967 . He permitted those offenses to be investigated in addition to the already-existing offenses for which a formal complaint had been filed. The investigating officer was instructed to complete the required actions prior to the Chief Metropolitan Magistrate, learnt. He allowed the investigating agency to file a charge sheet after the 90-day mark but within 180 days.

Petitioner’s contentions

The Appellant, said that the state police are conducting the investigation and prosecution in this case, not the National Investigation Agency is the Central Agency. He argued that Section 22 of the NIA Act would control the proceedings and that the High Court erred gravely in law when it quashed the proceedings by using Section 16 of the NIA Act’s provisions. Sessions Court, which had jurisdiction over the division in which the offense was committed and was seized of the exclusive jurisdiction because the case was being investigated by the State police and no Special Court had been established by the State Government under Section 22(1) of the NIA Act. Without affecting the foregoing, the learned senior counsel said that as the accused did not submit an application for default bail, the charge was brought before the ninety-day period had passed. He urged the Court to accept the appeal, overturn the challenged decision, and allow the Sessions Court to continue the accused’s trial for all of the alleged offenses, including those covered by the UAPA.

Respondent’s Contentions

The respondent strongly and passionately argued that the position adopted by the High Court in overturning the ruling dated April 7, 2022 is the Only reasonable and lawful perspective given the current facts and circumstances. However, on the aspect of the grant of default bail to the accused, learned counsel candidly conceded that no prayer was ever made on behalf of the accused either in the Sessions Court or the High Court seeking default bail. The plank contention advanced on behalf of the respondent was that the proceedings before the Chief Judge and the Chief Metropolitan Magistrate are vitiated because both the Courts did not have the jurisdiction to proceed under the provisions of NIA Act and UAPA in light of the fact that Special Court had.

Court Analysis and Judgement

Chief Judge/City Sessions Court was authorized to make the ruling on April 7, 2022. Considering the definition of the “Court” given by UAPA Section 2(1)(d), the jurisdictional magistrate would likewise have the authority to handle the accused’s remand, but only for a maximum of 90 days unless the Sessions Court or the Special Court specifically issued an order allowing remand beyond that time frame. Accordingly, to the degree that the distinguished Chief Metropolitan Magistrate Prolonged the accused’s remand for more than ninety days, the proceedings were flagrantly unlawful. Although the charge sheet was filed after the ninety days and, in fact, even after the one hundred and eighty days, the accused never requested default bail on the grounds that the charge sheet was not filed within the extended period allowed by Section 43D of the UAPA. Therefore, in these circumstances, the Court’s only remaining academic concern would be the impact of any evidence that was gathered during this time of so called illegal remand, following the expiration of ninety days from the date of the accused’s original remand and the accused’s right to pursue any other available legal remedy in opposition to such illegal remand. These kinds of questions would need to be brought up in the right channels, that is, before the trial court at the right time. The contested ruling, dated May 11, 2023, issued by an experienced Calcutta High Court single judge, cannot be upheld in light of the foregoing explanation, and it Is thus overturned and set Appeal is allowed.“

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Judgement Analysis Written by – K. Immey Grace

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