S.43D UAPA | Report of Public Prosecutor Contains Details of Investigation, Need Not Be Shared With Accused: Madras High Court

The Madras High Court recently denied bail to two Srilankan nationals, who are accused of attempting to siphon off funds from the bank account of a deceased woman in Mumbai to fund LTTE.

The bench of Justice PN Prakash and Justice Teeka Raman denied bail after observing that the indefeasible right for default bail stood extinguished as the National Investigation Agency (NIA) had already submitted the final report.

The appellants along with some others had attempted to siphon off funds from the account of one Hamida Laljee, whose SB account had a balance of around forty crore rupees and was unattended after her demise. One Umakanthan @ Idhayan @ Charles @ Iniyan, a key LTTE operative stationed in Europe was closely monitoring the said savings bank account and through him one Letchumanan Mary Franciska came to India. After obtaining documents like pan card, adhaar card and passport, she along with the appellants attempted to create fake Power of Attorney in an attempt to obtain the funds. However, the team was intercepted and thus case was registered against them. 

The ninety-day remand period under Section 167 of CrPC was to expire on 31.12.2021. The Special Public Prosecutor filed a report for extension of the remand period and thus it was extended by 90 days. The petitioners had approached the High Court challenging this order of extension. However, the application challenging the order was filed only on 4th April 2022 after the NIA had filed its final report on 29th March 2022. 

The appellant's primary contention was that the impugned order was passed without hearing them nor were they put to notice. The court, however, did not agree with this contention observing that the law did not require so. Further the court observed that when requisition for remand is made along with a report under Section 43D of the UAP Act, relevant materials are placed before the court informing the trajectory of investigation. These informations could not be shared with the accused.

When a requestion for remand under Section 167 of Cr.P.C. with a report is filed by the Special Public Prosecutor under the proviso to subsection (2) of Section 43D of UAP Act for extending the period of remand, materials have to be placed before the court to show progress of the investigation and reasons for the remand / extension of remand. For this, several material particulars and trajectory of the investigation would be disclosed including the names of some suspects whom the investigation agency would have to nab. If the copies of these documents are furnished to the accused, then, it would be easy for those who are in the radar to just escape from the clutches of law. 

The court also noted that the position was clearly laid down by the Apex court in Sanjay Dutt v. State [(1994) 5 SCC 410] where the Apex Court had clearly held that notice to the accused does not mean a written notice. The accused being informed that the question of extension of the period for completing the investigation is being considered would suffice for a notice. The court had also held that "indefeasible right" of the accused to be enlarged on bail is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed.

The court thus, concluded that the appellant's indefeasible right to bail stood extinguished. Thus, the court dismissed the appeal as being devoid of merits.

Case Title: T.Keeniston Fernando v. State

Case No: Crl A Nos.393 & 479 of 2022 

Citation: 2022 LiveLaw (Mad) 426