Blind Leading The Blind? Madras High Court Says Trained Judicial Officers Ignorant Of Procedure, Orders Academy To Conduct Refresher Course

The Madras High Court recently directed the Tamil Nadu State Judicial Academy to conduct a "refresher course" for judicial officers focusing on special enactments like Unlawful Activities Prevention Act (UAPA), Prevention of Children from Sexual Offences (POCSO) Act, SC/ST Act and NDPS Act.

The direction came from a bench of Justice P.N. Prakash and Justice N. Anand Venkatesh after it observed that the lower courts had failed miserably to follow proper procedure while dealing with the bail plea of a man accused under various provisions of IPC and UAPA.

".... we deem it appropriate to direct the Tamil Nadu State Judicial Academy to conduct a refresher course to the judicial officers, by focusing on the special enactments like UAP Act, POCSO Act, SC/ST Act, NDPS Act, etc. and make them aware of the procedure to be followed at the time of remand, extension of remand, extension of remand period from 90 days to 180 days, provided under certain enactments, taking cognizance of the final report etc."

The court was hearing a criminal appeal filed by one Mir Anas Ali challenging the cancellation of statutory bail by the Magistrate Court, Ambur. Ali was arrested on July 30 and was remanded to judicial custody from time to time. His initial bail application was dismissed by Principal District and Sessions Judge, Vellore on September 01 on merits.

When Ali again sought for bail, the court released him without following any requirements of Section 43D of the UAP Act. Later, on objection by the prosecution, this bail was cancelled and Ali continued to be in incarceration. 

After expiry of 90 days, Ali again moved an application for statutory bail on November 11. However, instead of considering the same, the sessions court transferred the same to the Magistrate Court.

The magistrate court then considered the petition for statutory bail filed by the appellant and the petition for extension of remand period filed by the prosecution together and allowed the petition filed by the prosecution even though it was filed after the one by the appellant.

"Now, the prosecution got scent on this and therefore, the Public Prosecutor and the Investigating Officer filed a petition under Section 43D(1)(2)(b) of the UAP Act, for extension of the period of remand from 90 days to 180 days, on the ground that the investigating agency is unable to complete the investigation. This petition under Section 43(D)(1)(2)(b) of the UAP Act was filed in the Magistrate Court on 15.11.2022," the bench noted.

The court noted that since the appellant was charged under the UAPA, only a special court would have the jurisdiction. As per a full bench decision of the Madras High Court in Jaffar Sathiq v. State, till the Special Courts are constituted by the State, the Court of Session alone will have the jurisdiction to entertain bail applications.

It added that while the first remand can be made by a Magistrate, even if he has no jurisdiction to try the case, but once the Magistrate becomes aware of the fact that he has no jurisdiction to try the case or to commit it for trial, the further extension of judicial custody as provided under Section 43D(2)(a) of the UAPA, should be done only by the Special Court or the Courts of Session, since it is only these Courts which will have the jurisdiction to try offences under the UAPA

"The appellant was arrested and remanded to judicial custody by the Magistrate on 30.07.2022. Today, Mr. T. Thangarajan, Special Sub-Inspector of Police, Ambur Town Police Station, who was present before this Court at the time of hearing, informed us that the extension of remand was every time done only by the Magistrate. This procedure that was adopted by the Police was the starting point for the entire confusion," it said.

The court also noted that it was a settled position of law that when a statutory bail petition is filed on the expiry of 90 days, an indefeasible right accrues on the accused for release on bail. 

"This indefeasible right cannot be defeated/frustrated by the prosecution, by filing a petition seeking extension of the remand period from 90 days to 180 days. Such a petition filed subsequently cannot be entertained by the Court and the time cannot be extended, by dismissing the statutory bail petition filed by the accused," it added.

The court further said that allowing the petition filed by the prosecution seeking extension of the remand period from 90 days to 180 days and dismissing the statutory bail petition filed under Section 167(2) Cr.P.C., was completely contrary to the settled position of law.

Can the blind lead the blind?

The court in the order said it is reminded of the famous parable - "“Can the blind lead the blind? Will they not fall into a pit?”.

Taking cue from the above parable, the first blind person in this case is the learned Sessions Judge, who was guiding the learned Magistrate, who was also blind, due to ignorance of the legal position and ultimately, both of them fell in a pit, leading to illegal and non est orders passed by the learned Magistrate.

The court also noted that Ali was charged for offences under the UAP Act. However, instead of the investigation to the Q branch considering it's seriousness, the case was still being investigated by the jurisdictional police. 

"We are constrained to use harsh words in this order, since the nature of allegations as could be seen from the orders, is very serious and it involves the safety and security of this State and Nation. It is quite unfortunate that the specialised agency did not take over the investigation and the respondent police were proceeding further in a mechanical fashion. To add insult to injury, even the trained Judicial officers were ignorant as to the procedure to be adopted in a case involving offences under the UAP Act," said the court.

Though a submission was made by the prosecution to send the matter to the appropriate court for fresh consideration, the court noted that the ignorance of the Sessions Court should not be put against the appellant. The court thus granted statutory bail to the appellant with certain conditions.

Case Title: Mir Anas Ali v State

Citation: 2022 LiveLaw (Mad) 525

Case No: CRL.A.No.1232 of 2022