[UAPA] Investigating Agency Cannot Seek Extension Of Time For Filing Chargesheet Citing Lack Of Sanction: Bombay High Court

"Under Section 45 of the UAPA, sanction is required for taking cognizance. In view of Section 196 of Criminal Procedure Code (CrPC) and Section 45 of the UAPA, the embargo is on taking cognizance and not on filing a chargesheet. Thus, for the appropriate authority to apply its mind to grant sanction, chargesheet is necessary, as without a chargesheet, the appropriate authority will not be able to apply its mind to the grant of sanction," the judges held.

The bench said that extension of time (to file chargesheet) can be asked only to complete the investigation.

"Sub-section 2 of Section 167 of CrPC provides for an outer limit of 60 days or 90 days as the case may be, for completing the investigation and there is no provision for an extension of the said period. However, under the special statutes, considering the seriousness and ramifications, exceptions are carved out. Thus, under special statutes enabling provision for extension of time to complete investigation is provided only because of the lengthy investigations," the bench noted.

Under the UAPA, the bench pointed out, the enabling provision for extension of time to complete the investigation is Section 43-D, which provides for an extension upto a maximum period of 180 days to complete the investigation, provided the Court is satisfied with the report of the Public Prosecutor, indicating the progress of the investigation and the specific reasons for the detention of the accused.

In the instant case before it, the bench noted that the Public Prosecutor's report seeking extension of time indicated that the investigation is complete and ample evidence is available for filing the chargesheet.

"Thus, an extension of time is prayed, for filing the chargesheet not on the ground that the investigation is not completed but on the ground that the proposal for obtaining sanction from the appropriate government was pending and the sanction was not likely to be received before the expiry of the extended time. Thus, an extension of time is prayed only for obtaining sanction as, admittedly, the investigation was complete. Thus, once the investigation is complete, there is no question of granting an extension of time to file a chargesheet by exercising powers under Section 43-D of the UPAA, as there is no question of seeking an extension of time on the ground that the application for grant of sanction under Section 45 of UAPA is pending; the reason being, that sanction is required for taking cognizance and not for filing chargesheet," the judges underscored.

As regards the contention that the sanction in the instant petition was to be obtained from the competent authority, the bench clarified that sanction is required for taking cognizance.

"In view of section 196 of CrPC and Section 45 of the UAPA, the embargo is on taking cognizance and not on filing a chargesheet. Thus, for the appropriate authority to apply its mind for grant of sanction, the chargesheet is necessary. Without a chargesheet, the appropriate authority will not be able to apply its mind for the grant of sanction. Thus, in the present case, in view of the embargo on the court taking cognizance without sanction from the appropriate authority, a chargesheet is necessary for the appropriate authority to apply its mind for deciding the proposal for grant of sanction submitted by the prosecution. Thus, for filing a chargesheet, sanction is not required," the bench opined.

Background:

The ruling came upon an appeal filed by Momin Moiuddin Gulam Hasan, alias Moin Mistri and Asif Aminul Hussain Khan Adhikari, both of whom were arrested by the Maharashtra Anti-Terrorism Squad (ATS) on September 22, 2022. They were primarily booked for being PFI members.

The accused pointed out that the ATS had initially sought extension to file their chargesheet after 90 days of them being remanded to judicial custody. The duo contended that the ATS had sought extension for retrieving data from seized gadgets and for obtaining prosecution sanction from the designated authority.

On the first such application for extension of time to file chargesheet, the special court granted 30 more days to the ATS. Subsequently, the prosecution was given 15 additional days to file chargesheet as they were yet to receive a prosecution sanction.

Citing this, the accused then sought default bail before the special court, which however, rejected their application by an order passed on January 18, 2023. Thereafter, the accused petitioned the High Court.

Case title: Momin Moiuddin Gulam Hasan vs. State of Maharashtra

Advocates Hassnain Kazi, Shraddha Vahval, Zeeshan Khan, Hafizuddin Kazi, Raeed Kazi, Saifan Shaikh and Athar Qureshi appeared for the Petitioner.

Senior Advocate Ashok P. Mundargi was the Amicus Curiae.

Public Prosecutor Hiten Venegavkar along with Additional Public Prosecutor PP Shinde represented the State.