UAPA - Extension Of Detention Under Section 43D(2) Not Vitiated For Not Serving Prosecutor's Report On Accused : Bombay High Court

The Bombay High Court has held that when seeking extension of detention under Section 43(D) of the UAPA, the fulfilment of the mandatory requirements is required in substance and not strictly in form. Justice Manish Pitale noted that substance would take precedence over form while deciding whether the mandatory requirements under the said provisions have been satisfied.

The applicant-accused was assailing two orders of the Sessions Judge- first, extending detention beyond ninety days under Section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967; and second, rejecting the default bail of the applicant under Section 167(2) of the Cr.P.C.

Under UAPA, the maximum period of filling the charge sheet is 180 days as Section 167(2) of CrPC is to be read together with Section 43D(2)(b) of UAPA. Accordingly, this proviso confers power upon the Court to extend the period up to 180 days.

The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days. Every person so released on bail be deemed to be so removed. However, Section 43D(2) modifies.

Factual Matrix

The applicant-accused, along with one other, was arrested for offences under Sections 17, 18 and 21 of the UAPA. When ninety days of detention expired, the prosecutor moved a joint application for both accused, seeking extension under Section 43-D of the UAPA read with Section 167 of Cr.P.C. The said application was allowed by the Court for a further period of ninety days. As a result of this order, the applicant's default bail application under Section 167(2) stood rejected.

Advocate S. V. Sirpurkar, appearing for the applicant, argued that the impugned order violates the mandatory requirement of Section 43-D(2)(b) of the UAPA. The argument arises as a formal report indicating satisfaction of the public prosecutor, indicating the progress of the investigation and specific reasons for further detention of the accused, was not on record. It was further argued that: (a) a copy of the report of the public prosecutor was not served on the accused, denying them a fair opportunity to contest; (b) the application was allowed mechanically; and (c) a joint application is defective, as separate applications ought to have been filed enumerating independent grounds while seeking extension of detention of each of the accused.

As a consequent relief, if the impugned order is vitiated, the applicant is entitled to default bail under Section 167(2) Cr. P.C

Advocate Sagar Ashirgade, the Additional Public Prosecutor for the State, argued that the impugned orders duly follow the mandatory requirements of the law as the public prosecutor submitted a report recording satisfaction as per the requirements of the proviso to section 43-D(2)(b) of the UAPA.

The APP justifies joint application for the two accused persons because the allegations against them were identical. It was argued that the applicant was not entitled to a copy of the public prosecutor's report because the investigation was still underway.

Findings

a. Mandatory Requirement Under Section 43D(D)(2)(b):

The High Court held that the mandatory requirement of the public prosecutor's report stating reasons for extension of detention is satisfied in substance in the present case. The High Court relied on the case of State of Maharashtra v. Surendra Pundlik Gadling (2019) and others, where the Supreme Court held that the Court is required to emphasize substance over form. Therefore, even where a separate report is absent technically, the prayer for extension of detention can be granted if there is sufficient material to show that the public prosecutor had indeed scrutinized the material on record, stated the progress of the investigation and the reasons for seeking extension of detention of the accused. The Court noted,

"It is found that the public prosecutor had submitted a report as per proviso to section 43-D(2)(b) of the UAPA. In this report, the public prosecutor not only stated the progress of investigation till the date of submitting the report, but he also stated the reasons for extension of detention."

The Court also relied on the case of Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (1994), wherein it was held that the purpose of provisos to Section 43-D(2)(b) of the UAPA is to ensure that the public prosecutor applies his mind to the reasons put forth by the Investigating Officer while seeking extension of detention of the accused persons. The substance of the report/application for an extension of detention takes precedence over the form of a report/application, the Court had held.

B. Furnishing A Report of Public Prosecutor Not Mandatory If Investigation Is Under Process:

On the argument of furnishing a copy of the report on the accused, the Court noted that said requirement of furnishing could not be read into the proviso of Section 43D(2)(b) of the UAPA when the investigation is under process. The requirement of the proviso reads that the report of the public prosecutor must indicate the progress of the investigation and the specific reasons for further detention and satisfaction of the Court. It was held,

"Insofar as the contention raised on behalf of the applicant that the order stood vitiated because report of the public prosecutor was not furnished to the accused, suffice it to say that such a requirement cannot be read into proviso to section 43-D(2)(b) of the UAPA, for the reason that investigation was still under progress. The mandatory requirement of the said proviso is that there should be a report of the public prosecutor indicating the progress of investigation and the specific reasons for further detention of the accused and satisfaction of the Court with such a report."

"It is crucial that the stage when the public prosecutor moves such an application, the investigation is still under progress, and it is for the Court to be satisfied with the report submitted by the public prosecutor. Thus, the requirement of service of a copy of the report to the accused cannot be read into the said proviso to Section 43-D(2)(b) of the UAPA."

C. Joint Application For Extension of Detention is Justified When The Charges Are Identical:

The Court noted that the APP is justified in submitting that a joint application can be made when the progress of the investigation had demonstrated the role of the said two accused persons and reasons for seeking detention as identical. It noted that the applicant could not succeed in the present case only because a separate application for seeking extension of detention of the other accused person was not moved.

Title: Sanjay Gangaram Avathare v. The State of Maharashtra

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