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[UAPA] Accused Has Right To Oppose Police Plea For Extension Of Time For Completion Of Investigation Beyond 90 Days But Cannot Be Provided Copy Of The Application:Delhi HC [Read Order]

Monisha Purwar
11 Sep 2020 9:34 AM GMT
[UAPA] Accused Has Right To Oppose Police Plea For Extension Of Time For Completion Of Investigation Beyond 90 Days But Cannot Be Provided Copy Of The Application:Delhi HC [Read Order]
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The Delhi High Court ruled that an accused has a right to be heard to oppose an application for extension of time for completion of investigation accruing out of the proviso to Section 167 of the Cr.P.C. as modified by Section 43(D)(2) of the Unlawful Activities (Prevention) Act, 1967 for investigations under UAPA. The petitioner was an accused charged under the UAPA in relation to...

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The Delhi High Court ruled that an accused has a right to be heard to oppose an application for extension of time for completion of investigation accruing out of the proviso to Section 167 of the Cr.P.C. as modified by Section 43(D)(2) of the Unlawful Activities (Prevention) Act, 1967 for investigations under UAPA.

The petitioner was an accused charged under the UAPA in relation to the Delhi riots. His claim was that the Additional Sessions Judge had denied his right to oppose the application for extension of time of the investigation against him under UAPA as well as wrongfully denied to him copies of the application/ report of the Public Prosecutor seeking such extension.

Section 167 of the Cr.P.C. proscribes the Magistrate from extending the time for completion of investigation beyond 90 days where the investigation relates to an offense punishable with death, imprisonment for life or imprisonment for a term more than 10 years and in case of other offences, the time limit beyond which extension of time for investigation cannot be provided is 60 days. But as per Section 43(D)(2) of the UAPA which modifies Section 167 Cr.PC. for application to UAPA investigations, such detention can be extended to a period of 180 days beyond this time-limit of 90 days provided the Court is 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.

The Bench comprising of Justice Vibhu Bhakru decided the questions raised before it with regard to the rights of the petitioner to oppose such extension and to obtain copy of the report of the Public Prosecutor as follows:

A. The accused has a right to be heard to oppose an application seeking extension of time beyond 90 days for completion of investigation in UAPA cases

The Court upheld the ruling of the Supreme Court in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra (1994) stating that

"a court is proscribed from extending the judicial custody beyond the period specified without a notice to the accused. The purpose of the notice is to afford him an opportunity to oppose the grant of extension beyond the period of ninety days on all legitimate and legal grounds as available to him."

The Court further noted the decision of the Supreme Court in Sanjay Dutt v. State through C.B.I. Bombay II (1994) to conclude that the requirement of notice shall suffice if the accused is in the Court when the extension of time for investigation is being considered and that a "written notice" to the accused regarding the same is not essential.

The Court also reiterated the ruling in Sanjay Dutt that

"the indefeasible right of an accused to be released on bail where the time for completion of the investigation has expired is only enforceable prior to filing of the challan and does not survive or remain enforceable on the challan being filed if the said right is not availed of."

B. The accused/petitioner is not entitled to a copy of the application or the report furnished by the public prosecutor.

With respect to the second question of furnishing of the report of the Public Prosecutor to the accused, the Court ruled that

"the rights of the accused in this regard have to be necessarily curtailed by the necessity to conceal such reasons from the accused and not make it public. This is because, at this stage, the investigation is incomplete and disclosing the manner in which investigation has proceeded and is proposed to be conducted, may frustrate such investigative efforts. Thus, in order to ensure the efficacy and secrecy of investigation, it is necessary to conceal the public prosecutor's report on the progress of investigations and also the reasons why it has remained incomplete. The report may include disclosure of the enquiries yet to be made and the steps proposed to be taken to coalesce the evidence. Disclosure of such information may provide an opportunity for tampering with evidence, which is yet to be collected."

It thus concluded that the accused must oppose the application for extension of time for investigation on "all legitimate and legal grounds available to him". It stated that the Court is required to consider the said contentions of the accused as well as the report submitted by the public prosecutor in support of the application for extension of time. For deciding the same, the Court referred to its ruling in Syed Shahid Yusuf v. National Investigation Agency (2018) where the Court had held that

"at the stage of extension of time for completion of investigation or extension of the period of detention in terms of the proviso to section 167 Cr. PC, the Appellant cannot ask to see the reports of the PP. Those reports, like the case diary maintained under section 174 Cr PC, are to satisfy the Court about the progress of investigation and the justification for seeking extension of time to complete the investigation."

The Court said that this curtailment is unavoidable so as to ensure that the investigation is not hampered or frustrated in any manner.

CASE DETAILS

Case Name: Khalid v. State (Govt. of NCT of Delhi)

Case Reference: CRL.M.C. 1697/2020

Click Here To Download Order

[Read Order]



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