UAPA| Terrorism Cases Not To Be Taken Lightly: Supreme Court Sets Aside Default Bail

A Division Bench of Justices Vikram Nath and Rajesh Bindal observed that the conditions/reasons given under Section 43D(2)(b) of UAPA (which grants discretionary power to a court to extend time for investigation upto 180 days on application by Public Prosecutor) stood satisfied in the case. As such, reliance of the High Court on a judgment under Terrorist and Disruptive Activities (Prevention) Act (“TADA”) to grant default bail to the respondent, as opposed to the specific provision and judgments under UAPA, was misplaced.

The factual matrix of the case was such that an FIR was registered against the respondent Lovepreet, accused of being a Khalistanti sympathiser, under Sections 13/18/20 of the UAPA, Sections 201/120-B of IPC, and Sections 25/54/59 of the Arms Act. Upon arrest, he was sent to judicial custody. Before expiry of the 90-day period since arrest, the Investigation Officer preferred an application for extension of time for investigation. The same was allowed.

Since the investigation could not be completed despite the extension, the Public Prosecutor moved another application for extension of time as per Section 43D(2)(b) of UAPA. The said application was allowed by the Trial Court and the time was extended. Subsequently, the investigation was completed and a police report filed before expiry of the extended period.

However, before filing of the same, and before expiry of the extended period of investigation, the respondent applied for default bail. The same was rejected by the Trial Court. The matter went to the High Court, where he was granted default bail. Against the High Court order, Delhi police came before the Supreme Court.

At the outset, the Supreme Court Bench noted that in the operative portion of its order extending the time for investigation, the Trial Court had observed that the extension had been sought on the ground of obtaining mandatory sanction which was pending before GNCTD.

It was held that the High Court incorrectly came to a finding that sanction had been received prior to the date of making of an extension application, and that for that reason, the application had no valid basis.

“The Public Prosecutor in the application had clearly mentioned that the sanction under section 45(1) of UAPA had been obtained from Government of India, Ministry of Home Affairs and was attached with the case file. However, the sanction under section 45(2) of UAPA was awaited from GNCT Delhi and that the sanction under section 39 of the Arms Act was to be obtained after the results from the FSL was received.”

In course of the analysis, the Bench discussed Section 43D(2)(b) of UAPA, under which a court may extend the time for investigation upto a maximum of 180 days, subject to a satisfaction based on the Public Prosecutor's report as to the progress of the investigation and specific reasons for further detention of the accused.

It was concluded that the requirements of the provision were satisfied, as the Public Prosecutor had given details of the progress of the investigation and reasons for detention of the respondent in the extension letter.

“The Public Prosecutor had mentioned in the request that major investigation of the case had been completed and the draft chargesheet had been prepared. However, for want of remaining sanctions and FSL report some more time was required for completing the investigation.”

The court further noted that amongst the reasons provided for seeking extension of detention, it was mentioned that during investigation, one Gurtej Singh, who had links with Pakistan-based terrorists and had been planning to go to Pakistan for weapons training along with his associate/respondent and others, had been arrested.

It was added that the High Court failed to take into consideration the decision in State of Maharashtra v. Surendra Pundlik Gadling and others, which dealt with UAPA.

The High Court's reliance on Hitendra Vishnu Thakur and others v. The State of Maharashtra and others was held to be misplaced. On this aspect, the Bench said,

“Reliance placed upon the said judgment in the case of Hitendra Vishnu Thakur (supra) by the Delhi High Court was misplaced. It was a case relating to TADA, whereas the present case related to UAPA. The provisions under UAPA section 43D(2)(b) are different and give other reasons also for extension of time for investigation.”

Before parting, it remarked that the alleged offence involved terrorist activities, which not only have pan-India effect, but also impact enemy States. Thus, the matter should not have been taken lightly.

Setting aside the order of the High Court, the court directed that the respondent be taken into custody forthwith, if not already in custody.

Case Title: State of NCT of Delhi v. Raj Kumar @ Lovepreet @ Lovely, SLP(CRL.) No.2503/2021

Citation : 2024 LiveLaw (SC) 10