S.43D UAPA | Application For Extension Of Remand Ought Not To Be Heard Without Production Of Accused: Madras High Court Grants Default Bail
While setting aside an order of extension of remand passed under Section 43D of the Unlawful Activities [Prevention] Act, 1967 (UAPA), the Madras High Court has held that trial court should not consider such applications in absence of production of the accused person. The bench of Justice M Sundar and Justice R Sakthivel relied on the ruling of the Supreme Court in Sanjay Dutt’s case...
While setting aside an order of extension of remand passed under Section 43D of the Unlawful Activities [Prevention] Act, 1967 (UAPA), the Madras High Court has held that trial court should not consider such applications in absence of production of the accused person.
The bench of Justice M Sundar and Justice R Sakthivel relied on the ruling of the Supreme Court in Sanjay Dutt’s case which was reiterated in Judgebir Singh v NIA wherein it was held that the accused need not demonstrate prejudice if not produced when an extension petition was taken up.
“The application of prosecution for extension of time ought not to have been taken up without production of accused before said trial court either in person or through electronic video linkage. This is in the light of the declaration of law by a Constitution Bench in Sanjay Dutt case and further elucidation in Jigar alias Jimmy Pravinchandra Adatiya that in such cases, mere non production of accused before court when extension application of prosecution was taken up will suffice and it is not necessary to show prejudice. To be noted, both Sanjay Dutt and Jigar alias Jimmy Pravinchandra Adatiya have been reiterated by Hon'ble Supreme Court in Judgebir Singh,” the court said.
The court was hearing a plea filed by one Mohammed Hasan Kuthous and two others who were arrested by the National Investigation Agency for making certain posts in the social media which promoted enmity between different groups on the grounds of religion. It was alleged that the accused persons had posted something to the effect that one religion was being subjected to wailing, helplessness and that such wailing and helplessness should be perpetrated on other religions also.
Based on the above, FIR was registered against the three for alleged offences under Section 153-A, 120-B, 505(1)(c), 505(2) of IPC for promoting enmity, criminal conspiracy and statements conducing public mischief. FIR was also registered under Section 13(1)(b) UAPA for inciting unlawful activity. The accused persons were arrested on the same day and remanded to judicial custody on the next day. The accused had approached the high court challenging the order of the trial court allowing extension of remand and rejecting bail.
On behalf of the accused, it was submitted that the reasons given in the report by the Public Prosecutor seeking detention beyond 90 days were not good enough for acceding the application. It was also submitted that detention could not be authorised without production of the accused.
On the other hand, the Public Prosecutor informed the court that the reasons specified for continued detention were good enough. Relying upon the decision of the Supreme Court in Qamar Ghani Usmani Vs. The State of Gujarat, the Prosecutor submitted that the accused was given notice and that when the accused did not exercise his right to grant statutory bail before the charge sheet was filed he could only seek regular bail.
The court however relied on the decision of Judgebir which was rendered after Qamar Ghani wherein the Apex court had remarked that if the accused had filed the bail application while the extension application was pending, the court would have had no option but to release them on statutory bail.
The court also noted that the Supreme Court in Judgebir case had reiterated the law laid down in Sanjay Dutt case wherein it was held that the requirement of notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. However, production of the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is necessary.
The court also noted that the trial court had rejected the bail primarily on the ground that the extension application was filed before 90 days had lapsed and the default bail plea was filed on the 91st day. The court noted that this reason had to be interfered with since the default bail plea became exercisable only on the 91st day.
The court also noted that though the prosecution had given specific reasons for seeking an extension of remand, it had filed the charge sheet just after two days. Thus, the court agreed with the submission of the accused that the application for extension of remand was made only with an intention of prolonging incarceration.
“Therefore, the argument of learned senior counsel for appellants that this extension prayer has been made only with the intention of prolonging the incarceration of appellants comes across as an argument that deserves to be sustained. To be noted, this is only a buttressing finding and it is not part of core finding or core dispositive reasoning leading to conclusion. Therefore, captioned criminal appeals deserve to be allowed,” the court noted.
Thus, finding that both the orders of the trial court had to be interfered with, the court granted default bail to the accused.
Case Title: Mohammed Hasan Kuthous v State
Citation: 2023 LiveLaw (Mad) 253