Accused Not Entitled To Copy Of Public Prosecutor's Report At Time Of Extension Of Remand Under UAPA: Delhi High Court

The Delhi High Court on Friday held that the report of Public Prosecutor is not required to be provided to the accused at the stage of grant of extension of remand for continued investigation under section 43D(2) of UAPA.

A division bench of Justice Mukta Gupta and Justice Anish Dayal however said that when the accused is produced to inform him about the extension of period of investigation based on Public Prosecutor’s report, “the accused cannot be a silent spectator” and the Special Court would be required to take into consideration, submissions on behalf of the accused, while examining the report regarding progress of investigation and the reasons for seeking further detention.

“The Special Court would also be required to satisfy itself, from the investigation carried out that there is sufficient material to form a reasonable belief that prima facie an offence under UAPA is made out, though no reasons in this regard will be required to be reflected in the order as the same would entail disclosure of the investigation carried out,” it said.

As per Section 43D(2), in cases where it is not possible to complete the investigation within a period of 90 days, the Court may extend the period of detention of the accused upto 180 days. The court may do so on being satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the period of 90 days, as per the provision.

The bench said that the Designated Courts should always carefully consider the material available on record and apply their mind to ascertain whether on the material collected by the investigating agency, provisions of UAPA are even prima facie attracted or not.

“This is all the more essential for the reason that in case the provision of UAPA itself is prima facie not attracted, the Designated Court has no jurisdiction to either grant the remand or extend the remand as contemplated under Section 43D(2)(b) of UAPA,” it said.

The bench also enumerated three essential ingredients to form part of the Public Prosecutor’s report, based on which the Special Court would arrive at the satisfaction to extend the period of remand. The elements are:

- Reasons evidencing the personal satisfaction of the Public Prosecutor as regards the progress of investigation made based on the investigation carried out.

- Reasons indicating why the investigation could not be completed within the period of 90 days; and,

- Further investigation required to be carried out for which, extended period of time is necessary.

Whether report of the Public Prosecutor is required to be furnished to accused?

Observing that a Public Prosecutor is required to carry out the said function fairly, impartially, objectively and within the framework of the provisions of the law, the court said that the Public Prosecutor has, at all times, to ensure that the accused is tried fairly.

“He should consider the legitimate interest and possible concern of the witnesses and victims. He is supposed to refuse evidence reasonably believed to have been obtained through recourse to unlawful methods,” it said.

It added that if the Public Prosecutor finds that the investigation has not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation, he may refuse to submit any report to the court to seek extension of time.

“Issue No.I is thus answered in the negative and it is held that the report of the Public Prosecutor cannot be furnished to the accused at the time of extension of remand for a further period of 90 days under proviso to sub- Section 2(b) of Section 43D of UAPA,” it said.

Necessary requirements to extend the period of remand

The court observed that before an order is passed by the Special Court while exercising the power under proviso to section 43D(2)(b) of UAPA, it has to satisfy itself that all the above four ingredients are complied with.

It added that the Public Prosecutor’s report must indicate the progress of investigation carried out, that there was no unnecessary, deliberate or avoidable delay and what further investigation is required to be carried out by the State to file a proper charge sheet.

Whether the period of remand should be extended in one go?

The court said that a bare reading of the provision of section 167 Cr.P.C. and section 43D(2)(b) of UAPA uses the word “in whole”, thus, even if there is no bar to grant an extension for a further period of 90 days in one go, while granting the extension of time, it is incumbent on the Special Court to see as to how much further time is reasonably required to complete the investigation.

“If on the facts of a given case, further investigation can be completed within a period of 30 days or 45 days, the Special Court will not grant an extension of 90 days, but for the said 30 or 45 days, subject to the right of the prosecution to seek further extension if so necessary as per the provision,” the court said.

The bench said that whenever extension is granted by the Special Court upto the total of further period of 90 days, the same has to be based on the fresh report of the Public Prosecutor.

“Such an approach will strike an equitable balance between the right of accused from not suffering meaningless continued detention without investigation and the right of the investigating agency to conclude the investigation fairly, covering all facets,” it said.

About the Appeals

One of the pleas moved by Zeeshan Qamar argued that the proviso to Section 43D (2)(b) of UAPA establishes the threshold of impossibility to complete investigation within a period of ninety days.

The plea challenged the trial court's order of granting an extension under Section 43D(2)(b) of the UAPA in his case. Qamar was arrested from his residence in Uttar Pradesh in September last year in an FIR related to existence of an alleged terror module.

Another plea was moved by Mohd. Manan Dar, a Kashmir based freelance photojournalist, against a trial court order which granted an extension of 90 days under Section 43D(2) of the UAPA for completion of investigation.

It also sought consequential directions for Dar's release on default bail under Section 167(1) of CrPC for the reason that the investigating agency failed to file a charge sheet within 90 days of his arrest.

The court dismissed the appeals. However, the bench granted default bail to appellants Mushab Anwar and Rahees Rasheed under section 167(2) Cr.P.C.

“We place on record our appreciation for the assistance rendered by Mr.S.V. Raju, Mr.Vikramjit Banerjee, learned ASGs, Mr.Gautam Narayan, Mr.Akshai Malik, Special Public Prosecutors, Ms.Shahrukh Alam, Mr.Jawahar Raja, Mr.Ashok Aggarwal, Md.Irshad Hanif and Ms.Tara Narula, Advocates,” the court said.

The appellants were represented by Advocates Shahrukh Alam and Ahmad Ibrahim, Tara Narula, Tamanna Pankaj, Priya Vats, Jawahar Raja, Varsha Sharma and Archit Krishna.

Title: MOHD. MANAN DAR v. NATIONAL INVESTIGATION AGENCY and other connected matters

Citation: 2023 LiveLaw (Del) 178

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