Delhi HC Reserves Order On Sharjeel Imam's Plea Against Trial Court Extending Time For Probe Under UAPA

The Delhi High Court on Thursday reserved judgement in former JNU student Sharjeel Imam's plea seeking bail in a case related to the alleged seditious and inflammatory speeches delivered by him during the protests which took place against the Citizenship (Amendment) Act, 2019, and the National Register of Citizens (NRC).

An FIR had been filed against Imam under Sections 153A, 124A and 505 of the Indian Penal Code, and pursuant to the same, Imam had been arrested on January 28th. Subsequently, provisions of the Unlawful Activities (Prevention) Act, 1967, had been invoked against him. On the 88th day of his custody, an application to extend time for probe was filed under Section 43D of the UAPA,  thereby depriving him of the right to access statutory bail which is granted after 90 days of custody as per Section 167(2) of the Code of Criminal Procedure.

In light of the above, Imam's plea for default bail under Section 167 of CrPC was rejected by the trial court and time was given to the Delhi Police to investigate under provisions of Unlawful Activities (Prevention) Act, 1967.

The instant petition before the Delhi High Court has been filed on behalf of Imam to set aside the Order of the trial court which had allowed the Delhi Police three more months, beyond the normal statutory 90 days, to conduct an investigation for commission of offences under UAPA.

At the previous hearings, notice had been issued by a Single Judge Bench of Justice V. Kameswar Rao, and time had been granted to the Delhi Police to file an additional status report.

In today's hearing, Senior Advocate Rebecca John, appearing on behalf of Imam, submitted to the Court that there was no notice issued by the Court regarding the extension of the probe time beyond 90 days under provisions UAPA. She had instead received a WhatsApp message on the 24th of April from the Investigation Officer with respect to the extension being sought under UAPA.

John invoked various cases, such as Hitendra Vishnu Thakur v. State of Maharashtra (1994), Sanjay Kumar Kedia v. GNCTD (1996) and Mohd. Maroof & Ors. v. State (2015) to underline the importance of how the essential requirements under Section 43D(2) of UAPA had been foregone as neither notice had been issued at the level of the Court, nor any compelling reasons had been provided by the Public Prosecutor for the extension of the probe time. Additionally, the defendant had also not been produced before the Court, thereby depriving him of the ability to contest the allegations.

She stated that the notice issued by the IO could not, by any stretch of imagination, be termed as notice issued by the Court. Additionally, Section 43D does not envisage any private communication between the IO and the Counsel of the accused.

"Notice is supposed to be issued by the Court. I got the information by the IO on WhatsApp at 11 AM. Court is supposed to look at the report of the Public Prosecutor. When the IO messaged, that report was not in existence. IO's communication to me on 24th April was meaningless because no report was present. The Court then noted that I had REFUSED to come."

John argued that the message was, therefore, "premature, meaningless and missed a lot of statutory steps" and had put her in a situation wherein, despite having information about the matter, she was not able to appear.

John further emphasized on the responsibilities of the Public Prosecutor to apply his/her mind in an independent manner before endorsing the report of the Investigation Officer. She submitted that the PP's report was a cut, copy, paste job which had relied entirely upon what had been said by the IO; it could not be treated as an independent examination as even the grammatical and typographical errors had been replicated.

"Courts have attached great value to independent application of mind of PP. Just because IO wants extension, it is not incumbent upon the PP to endorse the report. The PP is an important part of the State Government. He is not a part of the investigative agency, but an independent statutory authority. He may or may not agree with the IO; he is not a post office."

John further submitted to the Court that no compelling reasons had been provided on behalf of the PP in the status report. It was contended by her that investigation could not be stopped solely on the basis of the COVID-19 pandemic and that the pandemic could not be used to deny liberty.

"Why does it take you the 88th day to say that you need to investigate this? Where is the compelling reason? It does not behoove the PP to say that on 25th April, you had to investigate. Just because you have the right under Section 43D to ask extension, it does not mean you are entitled to get it. Can it be assumed that the PP did not ask the IO why this was being moved on the 88th day?"

John further referred to the 23rd March order of the Supreme Court in the Suo Moto Writ Petition with regard to Contagion of COVID-19 Virus in Prisons which had directed that the requirement of all undertrial prisoners before the Courts in ongoing matters to be stopped. It also gave the High-Powered Committee which was to be constituted at the State-level to determine which class of prisoners could be released on parole or on interim bail for a specified period.

ASG Aman Lekhi, appearing on behalf of the Delhi Police, submitted to the Court that at the outset that there was no infirmity in the report and that the arguments advanced by the Petitioner were misconceived in both facts and law.

Lekhi informed the Court that the sanction period had been encompassed by the national lockdown which had been imposed in the country in wake of the COVID-19 pandemic. He informed the Court that in order to conduct an investigation, one needs to "proceed to the spot, examine witnesses, and conduct seizures".

"The handicap imposed on the Investigative Agency due to the COVID-19 pandemic is not of their creation. This is exactly what has been mentioned in the Application. How can it be said that it is not a reason or a proper ground? How would they have conducted the investigation? And this report is not resting on COVID alone. The PP has to see if what the IO is saying is credible and then forward it. In these circumstances, the logical conclusion of facts is that there is a need for extension."

With regard to John's submission on non-application of mind on behalf of the PP, Lekhi averred that it was the PP's duty to rely on the report of the IO and he cannot change the facts. He further submitted to the Court that the cases which had been cited by John had required discretion to be exercised on behalf of the PP and the facts were different.

"Any difference in the PP's report and the IO's report would vitiate the report. Therefore, there is nothing wrong with the PP reproducing the IO's report."

In response to John's contention that notice issued by the Court was an essential requirement, Lekhi submitted that this was merely a tactic as the notice had been issued to a Counsel who had been on Vakalatnama since February 2020. He stated that there was no bar and that requirement was not cause, but time.

"There is no law. When you apply a law, you apply a law sensibly. Intimation was provided on WhatsApp and apart from that, every facility had been offered. Law has not been breached by the Prosecution, but the law is being manipulated by the Defence. To come before the Court and create this brouhaha is unbecoming."

Lekhi additionally asserted that the reliance placed by John on cases such as Hitendra Thakur, Sanjay Kumar Kedia and Mohd. Maroof was conceived as there existed a 1994 Constitution Bench case in the name of Sanjay Dutt v. State Through CBI which had not been referred to in any of the cases John had mentioned.

"Argument that notice should be given is wrong. At the stage of investigation, accused has limited say. It's not an irregularity which vitiates the proceedings. Mere absence/lack of production of person cannot be said to grant bail."

To Justice Rao's question regarding the sufficiency of the presence of the accused, mentioned in the Sanjay Dutt case, Lekhi said that it was not necessary.

"The accused needs to be informed. He does not need to be served with reasons. He does not have a right to contest. What remains if the Order extending the period is justified? The test which needs to be applied is whether there is cause to extend. The test is need for detention, apart from extension. The former has been explicitly stated."

Lekhi also elaborated on the Defence Counsel's reluctance to respond to the notice of the IO by stating that they could have appeared before the Court and said that they had no instructions. By not appearing, they had relinquished the right to object to the Court's observation that the Counsel had refused to appear.

Moreover, Lekhi posited that the extension itself had not been appealed against and therefore, could not be prejudiced.

"There needs to be a report of the IO. And the report should indicate the progress of the investigation. If need for detention is established, would his appearance matter? Their understanding of notice itself is problematic. Their understanding of 'compelling reason' is also not determinative."

Regarding the sole para wherein the PP had stated that he had perused the case files, Lekhi informed the Court that the PP was merely verifying whether the IO's application was adequate or not.

"That one para is enough to show the application of mind. My Learned Friend has just glossed over the case file aspect. That is enough to discern whether the PP had applied his mind. In matters like this, it is the substance and not the form that matters."

John, in her Rejoinder, objected to Lekhi's assertion that the accused did not have the right to contest.

"Why is the accused being produced if he has no right to contest? This is a criminal proceeding. Is he going to be a part of the furniture in the courtroom? Nowhere has the Supreme Court said that they have no right to contest."

John highlighted the inalienable rights of the accused which could not be overruled, and could not be said to be inferior to the rights of the victim. She further noted that she took serious objection to the method of communication on behalf of the IO and stated that the Trial Court had believed a false statement.

She concluded her Rejoinder by stating that the matter was not a Civil Writ Petition, but a petition under section 482 of the Code of Criminal Procedure.

"The Supreme Court has held that COVID-19 is not a ground; that the lockdown has not prevented anyone from filing of a charge sheet. Nothing, nothing is more important than the rights of the accused. The rights are mine; they are supposed to follow the procedure. My client has every right that the accused have under the Constitution."

The Single Judge Bench of Justice V. Kameswar Rao has accordingly reserved the judgement in the instant matter. Both the parties have been directed to file a 5-page note on their submissions by Sunday evening.