S.43D UAPA: Karnataka High Court Denies Default Bail To Man Allegedly Having Links With ISIS, Upholds Extension Of Judicial Custody To 180 Days

A single judge bench of Justice M Nagaprasanna while rejecting the plea filed by Zuhab Hameed Shakeel Manna @ Zohib Manna said, "I do not find any error or reason rendered by the Investigating Officer as put forth by the SPP to be contrary to Section 43D(2) of the Act."

Case Background:

The petitioner is charged under Sections 120B and 125 of the Indian Penal Code and Sections 17, 18 and 18B of the Unlawful Activities (Prevention) Act, 1967. He claims to be working in Saudi Arabia and staying there along with his family earning his livelihood.

The petitioner was taken into custody in Saudi Arabia on 05-10-2020 about 13 months prior to his deportation to India, on the request of the National Investigating Agency. The family of the petitioner was completely evacuated from Saudi Arabia and then deported to India on 14-11-2021.

On his arrival, a case was registered for the aforesaid offences. The allegation against the petitioner was that he had affiliation with banned terrorist organizations and had entered into criminal conspiracy to radicalize and motivate gullible Muslim youths to join Islamic State in Iraq and Syria ('ISIS'). Further, he used to travel to raise funds and facilitated travel of ISIS to the conflict zone – Syria.

The petitioner is in judicial custody. After 90 days of the petitioner being in judicial custody, a report is submitted by the Investigating Officer to the Special Public Prosecutor ('SPP' for short) for extension of the custody of the petitioner from 90 days to 180 days. On filing of the report, the petitioner filed his objections for extension on the ground that there was no warrant to extend judicial custody of the petitioner as no charge sheet is filed within 90 days as is required in law and also filed an application seeking his release on grant of bail under sub-section (2) of Section 167 of the Cr.P.C.

The Special Court by its order dated 14-02-2022 extended judicial custody of the petitioner from 90 days to 180 days and consequently, rejected the application filed by the petitioner for grant of default bail as obtained under Section 167(2) of the Cr.P.C. Following which he approached the high court.

Petitioners submissions:

Advocate P.Usman, for the petitioner said the order of extension of judicial custody bears no application of mind as is required under Section 43 of the Act, as the custody is extended mechanically without the SPP applying his mind on the report given by the Investigating Officer. He would submit that on account of non-application of mind, the very order of extension is vitiated and the petitioner is entitled to be considered for a default bail under Section 167(2) of the Cr.P.C.

Court findings:

The bench referred to the report submitted by the Special Public prosecutor seeking extension of investigation period and judicial custody of the accused. It said, "It is the case of the Investigating Officer that during the custodial interrogation larger conspiracy is brought out and the petitioner would be needed for further interrogation for unearthing such a larger conspiracy. Based upon this, an application is filed seeking extension of judicial custody from 90 days to 180 days as obtaining under Section 43D(2)(b) of the Act."

Further it noted, "The Court, hearing the application for extension of judicial custody, passed a detailed order allowing the application and extended the custody of the petitioner from 90 days to 180 days." It added, "Consequently, the application filed by the petitioner for grant of default bail came to be rejected by a separate order dated 24.02.2022 again giving detailed reasons."

Following which it held, "The contention of the learned counsel for the petitioner that the orders suffer from want of application of mind is unacceptable. The order extracted (supra) contains detailed reasons assigned by the SPP while filing an application extracting the contents of the report of the Investigating Officer. Therefore, it is not a case where the report or the opinion of the Investigating Officer or the SPP suffers from want of application of mind."

The court also dismissed the contention of the petitioner that Section 43D(2) which states that if it not possible to complete the investigation within 90 days, the Court may, if it is satisfied that the report of the Public Prosecutor indicating the progress of investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the judicial custody from 90 days to 180 day.

The bench observed, "The emphasis of the submission of the learned counsel is on the phrase "if it is not possible to complete."

The counsel had argued that the said phrase has to be interpreted to demonstrate as to why the investigating officer could not complete the investigation within 90 days.

However, the Court said,

"This submission is to be noted only to be rejected, as the report and the application of the SPP clearly cull out and narrate as to the progress of investigation and the necessity of continuance of judicial custody of the petitioner for further interrogation. I do not find any error or reason rendered by the Investigating Officer as put forth by the SPP to be contrary to Section 43D(2) of the Act."

The court concluded by saying, "In the light of the afore-quoted statute, the judgments of the Apex Court interpreting Section 43D(2)(b) of the Act, the report of the Investigating Officer, the application of the SPP and the order of extension of judicial custody, what would unmistakably emerge is that, the report of the Investigating Officer is in consonance with the provisions of the Act, so is the application filed by the SPP."

Case Title: Zuhab Hameed Shakeel Manna @ Zohib Manna v. The National Investigation Agency

Case No: Writ Petition No.5913 OF 2022

Citation: 2022 LiveLaw (Kar) 121

Date of Order: 1ST DAY OF APRIL, 2022

Appearance: Advocate Usman P for petitioner

Click Here To Read/Download Order