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Explained | UAPA, Extension Of Period Of Investigation Beyond 90 Days & Court's Duty

Sofi Ahsan
28 Feb 2023 4:03 AM GMT
Explained | UAPA, Extension Of Period Of Investigation Beyond 90 Days & Courts Duty

Unlawful Activities (Prevention) Act, 1967 is a stringent law that makes it almost impossible for an accused under it to get bail. As a result, undertrials continue to languish in jail for years, sometimes even without charges having been framed by the court.

The Act has been repeatedly invoked against activists and protestors in recent years. But special provisions on bail aren’t the only thing that make the law stringent or what some may call draconian.

While in criminal cases, the investigating agencies usually get 60 to 90 days to complete the investigations, this time period under the UAPA can be extended by further 90 days in case the probe is not completed within the initial 90 days - the probe agency can have 180 days in total to probe the allegations against the accused.

Delhi High High Court recently considered the question whether the further period of 90 days should be granted to the agencies in one go or does the Special Court have a discretion to decide the time period during which the investigation can be completed by the agency after the initial 90-day period.

Section 43D

In case “it is not possible” for the investigating agency to complete the probe within the 90 days period, the court can grant additional 90 days to the agency for completion of the probe if it is satisfied with the report of the public prosecutor. The report has to indicate the progress of the investigation and the reasons for the extension.

Advocate Shahrukh Alam had argued before the court that the phrase “not possible” has to be interpreted as “impossible” as prosecution must establish a higher threshold to obtain the extension of the period of investigation.

Countering the argument, the NIA argued that there are various situations where procuring electronic evidence takes a longer time "due to data crunching and follow up and therefore, it is not a case of impossibility but a case that it could not be completed within the time initially allotted.”

The court said the words “not possible” cannot be raised to the level of “impossibility”.

“Offences relating to terrorism are hatched in secrecy with multiple accused involved, entailing unearthing of serious technological evidence, hence it may take longer time for the investigating agency to collect relevant and admissible evidence to prove the same,” said the court.

The data in respect of the cases being probed by the National Investigating Agency revealed that courts in most cases granted the further period of 90 days in go for completion of the investigation.

Public Prosecutor’s Role

The division bench of Justice Mukta Gupta and Justice Anish Dayal in the ruling said the investigating agency’s request for extension of remand has to be scrutinised first by the public prosecutor and then by the Special Court.

Relying on Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors, the court said the public prosecutor is expected to independently apply his mind to the request of the agency before submitting a report to the Court for extension of time.

“Public Prosecutor is not merely a post office or a forwarding agency of the investigating officer and in case, he finds that extension of time is being sought without any progress in investigation in a proper manner with unnecessary, deliberate or avoidable delays, he may refuse to endorse the request of the investigating agency,” it said.

The court said independent application of mind has to be borne out from the Public Prosecutor‟s report. It said the essential requirements in the Public Prosecutor’s report are: the progress of investigation; that the investigation was carried out with utmost promptitude without any unnecessary, deliberate or avoidable delay and a continued investigation is essential for filing a meaningful charge sheet for which the detention of the accused is essential.

Can Period Of Remand Be Extended In One Go?

The argument before the court was that even if the investigating agency can complete the probe in a further period of less than 90 days, they have the leisure of completing the same in 90 days. The court said it finds merit in the submission.

It observed that though there is no bar to grant an extension for a further period of 90 days in one go, 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,” said the court.

It added that such a course will also ensure that the investigating agency does not procrastinate, be tardy and take it leisurely for the next few days and file the charge sheet at the end nearing the 90th day.

The division bench said an onerous duty is cast on the Special Court to not only ensure that the essential requirement of the provision to Section 43D(2)(b) of UAPA is adhered to but also unwarranted and unnecessary delay in filing the charge sheet and the continued detention of the accused does not take place by extension of time.

The court further said that whenever a report of the Public Prosecutor is presented seeking extension of time for investigation beyond 90 days, the Special Court will have to apply its mind to find out the reasonable time required to complete the investigation.

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