Mechanically Including UAPA Offences Against Accused Causes 'Deep Trauma': P&H High Court Issues Guidelines To Check Misuse Of UAPA

Taking note of the stringent bail provisions under the Unlawful Activities (Prevention) Act (UAPA), the Punjab & Haryana High Court has issued directions to the Punjab Police to check misuse of the application of the Act. 

While deciding a bail application in an attempt to murder case, wherein the Investigating Officer (IO) added UAPA to the FIR, a division bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma said that the "non-application" of mind by the police before adding the offence under the Act needs to be curbed.

Considering the gravity of the matter, the Court issued the following directions:

(i) The Police Commissioner shall monitor the investigation on a day-to-day basis in the FIR, in which the Investigating Officer (IO) is collecting evidence to add an offence under UAPA.

(ii) After close scrutiny and day-to-day monitoring of the investigation, there should be an "application of mind" to the incriminatory material collected against the prospective accused of UAPA, ensuring that the inclusion of offences under the Act is necessary.

(iii) In case there is dereliction of duty on the part of Police, the Director General of Police, Punjab, shall ensure appropriate action against the erring officer in accordance with law.

These guidelines were issued while the Court was hearing a bail application of accused persons booked in an attempt to murder case under Sections 307, 341, 323, 427, 506, 148, 149, 34 and, under Sections 25, 27, 54, 59 of the Arms Act. Section 13 of the UAPA was also added later in Ludhiana, Punjab in 2022.

It was alleged that a group of men were drinking liquor in front of the complainant's house. When the complainant asked them to stop creating a nuisance, a fight ensued. During the altercation, the accused persons fired upon the complainant and his relatives, resulting in firearm injuries.

The Court noted that the IO had added Section 13 of UAPA in the FIR, however in the charge sheet filed before the trial Court it was deleted.

Perusing the reply filed by the Commissioner of Police (CP), Ludhiana, the Court noted that the offence under Section 13 of the UAPA Act, was added in the FIR on the ground, that during investigations, it was found that the accused persons had formed a gang and used to engage in fights with the public, causing "panic and fear in the society."

However, in the same reply, it was stated that provisions of Section 13 of the UAPA Act were not applicable in the present case.

In a previous proceeding, the Court summoned the CP, Ludhiana to explain whether the offence under UAPA had been added or not.

The counsel appearing for the State submitted that the offence under UAPA had been added but the same was later deleted and the addition was done on "misinterpretation" of the statute done by the Police.

Hearing this, Justice Thakur remarked that "it is complete non-application of mind" and shows some hidden ulterior motive of the police.

"Despite knowing the stringency of the policy, gross misinterpretation have been done, you need to be careful while dealing with UAPA...It cannot be used as a tool for harassment...this is complete extortionate policing and not fair policing, you need to be thorough with your work," added the Court.

The Court also said that the implication of excluding the provisions of UAPA from the chargesheet is that it makes the case of the petitioner easier for the bail.

The counsel for the State argued that the accused persons do not deserve bail because they are habitual offenders.

However, stating that "the repeated indulgences of the present bail applicants in crime, does not yet preclude this Court, from enlarging them on regular bail, as the imposition of the hereafter onerous conditions upon them," the Court allowed the bail application.

While disposing of the plea, the Court directed to transmit the copy of the order forthwith to the  Director General of Police, Punjab, to ensure strict compliance with the guidelines.

Appearance: Jasdeep Singh Kailey, Advocate for  J.S.Dadwal, Advocate for the petitioner(s) (in both the cases).

 Monika Jalota, Sr. DAG, Punjab.

 Vivek Sharma, Advocate for the complainant. (in CRM-M-55313-2022).

Citation: 2023 LiveLaw (PH) 255

Title: Pramodh v. State of Punjab 

Click here to read/download the order