Once UAPA Is Invoked, Special Court Alone Can Extend Custody Beyond 90 Days: Karnataka HC Directs Release Of Terror Accused On Default Bail

Justice K.Natarajan in his order dated July 23, noted:

"Once the Police invoke the UA(P) Act against the accused, automatically the file has to be transferred to the Special Court established under the NIA Act. Therefore, I am of the view that the learned JMFC has no power to extend the detention or custody for more than 90 days or 180 days, as per Section 43D(2) of UA(P) Act."

The Court further said:

"In view of the offence under the UA(P) Act invoked by the Police, the Magistrate shall have to refer or commit the matter to the Special Court but cannot extend the time limit more than 90 days in one case."

With this view, the single judge bench granted bail to petitioner Mohammed Shariq and Sadath Hussain who were arrested by the Mangalore East Police Station, and charged under section under Section 153A, 34 of IPC, Sections 3 and 5 of the Karnataka Open Place (Prevention of Disfigurement) Act and Sections 13 and 39 of the UA(P) Act. It was alleged that the accused had written graffiti on the wall of Ventura Apartment, Mangaluru, in November 2020, in support of a banned terrorist outfit. They were also accused in a case registered in regards to the writing made on the wall of the Out-Post Police Station situated in the premises of District Court, Mangaluru.

Submissions Before Court:

Advocate Mohammed Sultan Beary a/w Advocate Suman Hegde appearing for the petitioners argued that the petitioners had been falsely implicated in the case.

Further, it was submitted that though the alleged offences are non-bailable, the same is not punishable either with death or imprisonment of life. Subsequent to the registering of the case under Section 153A of IPC, the Police added Sections 13 and 39 of UA(P) Act and in spite of the completion of 180 days, the charge-sheet was yet to be filed.

It was contended that,

"Even though the Magistrate having no power, he had extended the time under UA(P) Act which is illegal. Once, the Police invoked UA(P) Act, the Special Court only has the power to extend the time for filing the charge-sheet. As per Section 43D(2) of UA(P) Act, though the Special Court has power to extend time, the Magistrate had illegally extended time for filing the charge-sheet. Thereby, the accused is entitled for default bail under Section 167(2) of Cr.P.C."

The prosecution opposed the bail application saying that "Accused No.1 is the main accused who had interacted with the banned organisation and had written on the compound wall of the apartment on 26.11.2020."

It was argued thus,

"Both the petitioners are influenced by the terrorist activities of Lashkar-E-Taiba ISIS and Mujahideen organisations and indulged in Islamization. Petitioner No.1 has got a destructive mindset with an intention to cause a threat to the National Security through his activity of Islamisation and jihad. Both the petitioners actively propagated and indulged with the banned organisation. The accused are not entitled for bail in view of Sections 43D(5) and 46 of the UA(P) Act."

Court's Findings:

Firstly, the court noted that :

"Looking to the facts of the case, it is very serious offence giving an open challenge to the patriotism of the nation and waging war against the State by giving threat to different sects of people of the Country. Giving warning to call Lashkar-E-Taiba and banned organisation reveals that there is a prima facie connection with the petitioners in the terrorist group. Petitioners have already deleted the whatsapp messages and there is material to show that they are having connection with terrorist groups."

It then went on to add the following:

"On bare reading of the proviso to Section 43D(5) of the UAPA, it clearly defines that the accused shall not be entitled to be released on bail only if there are reasonable grounds for believing that the accusation against such a person is prima facie true. It shows this is a reverse burden on the accused to show that the accusation is false. Once the investigation is pending and by looking to the writings in both the places, it is nothing but warning and also danger to the integrity of the nation and also insulting the feelings and patriotism of the citizens of this nation. Therefore, on merits, the petitioners are not entitled for bail."

The court looked into the issue of the Magistrate having no power to extend the period of 90 days for filing the charge-sheet as per Section 43D(2) of UA(P)Act and whether the accused were entitled to default bail under section 167 of the Criminal Procedure Code.

Although the Special Public Prosecutor had contended that as per Section 2(d) of the UA(P) Act, the offences punishable under UA(P) Act were also triable by the regular criminal court having jurisdiction, the court observed as follows:

"Merely the Police invoked the provisions of UA(P) Act until the Government writes a letter to the Central Government for taking up the investigation by the NIA and in turn, and until the Central Government by its order authorizes the NIA to investigate the offences, the NIA Act will not be applicable and the Special Court established under the NIA Act need not try the case even though the Scheduled offences are under the NIA Act. Therefore, the contention of learned counsel is not acceptable and the offences punishable under the UA(P) Act shall be tried only by the Special Court."

The court was informed by the prosecution that, "There is no notification issued by the State Government for establishing the Special Court for the offences under the UA(P) Act. But the Special Court is established for the offences investigated by the NIA Act. Therefore, even though the Scheduled offences under the UA(P) Act shall be investigated in NIA and until it is referred to the NIA to investigate the matter, the Special Court will not take cognizance."

Relying on the judgement of the Supreme Court in the case of National Investigation Agency vs. Zahoor Ahmad Shah Watali reported in (2019) 5 SCC 1, the prosecution had added:

Counsel for petitioner relied upon the judgment of the Division Bench of the Court in Crl.A.No.97/2018 dated 8.7.2019 in which the court held that 'The Special Court would have the jurisdiction to try the offences provided they are scheduled offences to the NIA. The Agency that conducts the investigation does not determine the jurisdiction of the Special Court. The jurisdiction of the Special Court is determined by the nature of the offences and not as to who conducts the investigation.'

To this, the court replied saying:

"The UA(P) Act was brought in the year 1967 whereas the NIA Act was enacted in the year 2008. It is specifically mentioned under the Scheduled offences under the UA(P) Act that scheduled offences are to be investigated by NIA. Once the Police invoked the UA(P) Act against the accused, automatically the file has to be transferred to the Special Court, established under the NIA Act. Therefore, I am of the view that the learned JMFC has no power to extend the detention or custody for more than 90 days or 180 days as per Section 43D(2) of UA(P) Act."

It added,

"The accused has already moved an application for default bail before the Magistrate and in view of the establishment of a Special Court under the NIA Act, the scheduled offences shall be transferred to the Special Court and the Special Court alone has to extend the limitation of detention or judicial custody but not the Magistrate."

Accordingly, it held that "the petitioners are entitled for default bail under Section 167(2) of Cr.P.C., which is an indefeasible right accrued for the petitioners-accused. Therefore, they shall be released on bail."

The court also directed the jurisdictional Magistrate to release the petitioners-accused on the accused executing a personal bond for a sum of Rs.2,00,000, each with two sureties for the like sum to the satisfaction of the Magistrate.

Case Title: Mohammed Shariq And State Of Karnataka

Case No: Crl.P.No.2693/2021

Date Of Order: July 23, 2021.

Appearance:

Advocate Mohammed Sultan Beary, A/W Advocate Suman Hegde For Petitioner.

Special Public Prosecutor V.S. Hegde, A/W Advocate Thejesh P For Respondent.

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