S.43D(2)(b) UAPA | Slow Progress In Initial 90 Days Bars Extension Of Investigation Period, Accused Entitled To Default Bail: Uttarakhand HC

The Uttarakhand High Court on Wednesday (January 8) granted default bail to two UAPA accused, for their alleged involvement in the violence and resistance during a demolition drive in Banbhoolpura, Nainital.

The Court noted that failure of the investigative agency to record substantial progress in the initial 90 days of investigation (in a UAPA case) wouldn't entitle the investigating agency to seek an extension of accused custody beyond 90 days, and the accused would be entitled to seek a default bail under Section 167(2) of Cr.P.C.

“The right to life and liberty is one of the integral parts of the Constitution of India and it is the most sacred Fundamental Right. The custody of people in the name of various enactments and without adhering to the promptness of the investigation, it (the enactments) cannot allow the appellants to remain under incarceration.”, the court said.

The accused were implicated for various offenses under the IPC, UAPA, Prevention of Damage to Public Property Act, and Arms Act for their alleged involvement in disrupting the demolition exercise of one Madarsa and one Mosque (allegedly encroachments on public land) carried out in Nainital's Banbhoolpura locality.

The appellants were arrested and detained during the investigation. The trial court extended the investigation and detention period beyond 90 days under Section 43D(2)(b) of the UAPA, rejecting their default bail plea.

The Appellant contended that they were not put to notice of the extension application and were not given the opportunity to file an objection; there were no specific reasons available to the prosecution for the detention of the accused beyond the said period of 90 days and the trial court recorded no satisfaction for extending the period and detention of accused by 28 days i.e., beyond the period of 90 days as envisaged under the provisions of 43D of the U.A.P.A. Act, 1967.

Opposing the Appellant's stand, the prosecution argued that the investigation's progress and specific reasons for the delay justified the extension 43D of the U.A.P.A. Act, 1967.

Setting aside the trial court's decision, the Division Bench, comprising Justices Manoj Kumar Tiwari and Pankaj Purohit, criticized the manner in which the investigation was conducted during the accused's initial 90-day period of custody.

The Court did not notice promptitude in the investigation; rather, it was sluggish, and for such a sluggish investigation, the appellants cannot be made to suffer.

The Court said that the application seeking an extension of investigation duration beyond 90 days requires the Public Prosecutor to indicate the progress of the investigation and specific reasons for the detention of the accused beyond said period of 90 days, and only then the Court can order the custody to be extended up to 180 days.

“We found that though the ingredients may be available for the invocation of provision of Section 43D(2)(b), but in order to appreciate the said provision in true sense, indepth look is required to find out as to how the investigation proceeded within a period of 90 days. It cannot be the intention of the law that the Investigating Officer kept silent and did not proceed with the investigation with promptitude and it is only on the expiry of period of 90 days he suddenly awakes from his slumber to move an application that further time is needed to complete the investigation. Such kind of interpretation which deprives citizen of this country of his valuable right to life and liberty, cannot be made.”, the court observed.

“The proviso to Section 43D(2)(b) of the U.A.P.A. Act, 1967 is exception to 90 days period and it can only be resorted to when it is not possible to complete the investigation within the period of 90 days. This is discretion of the Court and if the Court is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for detention of the accused beyond said period of 90 days it can order to extend the period up to 180 days.”, the court added.

Presence:-

Mr. Prashant Bhusan assisted by Mr. Piyush Garg and Mr. Jai Krishan Pandey, KR Shiyas, Ria Yadav Advocates for the appellants.

Mr. J.S. Virk, learned D.A.G with Mr. Rakesh Kumar Joshi, learned B.H. for the State.

Case Title: Javed Siddiqui and another Versus State of Uttarakhand and another, Criminal Appeal No. 495 of 2024

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