Once UAPA Is Invoked, Special Court Alone Can Extend Custody Beyond 90 Days: Karnataka HC Directs Release Of Terror Accused On Default Bail

The Karnataka High Court recently held that once the police invoke Unlawful Activities (Prevention) Act, the Magistrate court has no power to extend custody beyond 90 days and only the Special Court constituted under the UAPA Act has the power to extend the detention beyond 90 days. Justice K.Natarajan in his order dated July 23, noted: "Once the Police invoke the UA(P) Act against the accused, automatically the file has to be transferred to the Special Court established under the NIA Act. Therefore, I am of the view that the learned JMFC has no power to extend the detention or custody for more than 90 days or 180 days, as per Section 43D(2) of UA(P) Act." The Court further said: "In view of the offence under the UA(P) Act invoked by the Police, the Magistrate shall have to refer or commit the matter to the Special Court but cannot extend the time limit more than 90 days in one case." With this view, the single judge bench granted bail to petitioner Mohammed Shariq and Sadath Hussain who were arrested by the Mangalore East Police Station, and charged under section under Section 153A, 34 of IPC, Sections 3 and 5 of the Karnataka Open Place (Prevention of Disfigurement) Act and Sections 13 and 39 of the UA(P) Act. It was alleged that the accused had written graffiti on the wall of Ventura Apartment, Mangaluru, in November 2020, in support of a banned terrorist outfit. They were also accused in a case registered in regards to the writing made on the wall of the Out-Post Police Station situated in the premises of District Court, Mangaluru. Submissions Before Court: Advocate Mohammed Sultan Beary a/w Advocate Suman Hegde appearing for the petitioners argued that the petitioners had been falsely implicated in the case. Further, it was submitted that though the alleged offences are non-bailable, the same is not punishable either with death or imprisonment of life. Subsequent to the registering of the case under Section 153A of IPC, the Police added Sections 13 and 39 of UA(P) Act and in spite of the completion of 180 days, the charge-sheet was yet to be filed. It was contended that, "Even though the Magistrate having no power, he had extended the time under UA(P) Act which is illegal. Once, the Police invoked UA(P) Act, the Special Court only has the power to extend the time for filing the charge-sheet. As per Section 43D(2) of UA(P) Act, though the Special Court has power to extend time, the Magistrate had illegally extended time for filing the charge-sheet. Thereby, the accused is entitled for default bail under Section 167(2) of Cr.P.C." The prosecution opposed the bail application saying that "Accused No.1 is the main accused who had interacted with the banned organisation and had written on the compound wall of the apartment on 26.11.2020." It was argued thus, "Both the petitioners are influenced by the terrorist activities of Lashkar-E-Taiba ISIS and Mujahideen organisations and indulged in Islamization. Petitioner No.1 has got a destructive mindset with an intention to cause a threat to the National Security through his activity of Islamisation and jihad. Both the petitioners actively propagated and indulged with the banned organisation. The accused are not entitled for bail in view of Sections 43D(5) and 46 of the UA(P) Act." Court's Findings: Firstly, the court noted that :"Looking to the facts of the case, it is very serious offence giving an open challenge to the patriotism of the nation and waging war against the State by giving threat to different sects of people of the Country. Giving warning to call Lashkar-E-Taiba and banned organisation reveals that there is a prima facie connection with the petitioners in the terrorist group. Petitioners have already deleted the whatsapp messages and there is material to show that they are having connection with terrorist groups." It then went on to add the following: "On bare reading of the proviso to Section 43D(5) of the UAPA, it clearly defines that the accused shall not be entitled to be released on bail only if there are reasonable grounds for believing that the accusation against such a person is prima facie true. It shows this is a reverse burden on the accused to show that the accusation is false. Once the investigation is pending and by looking to the writings in both the places, it is nothing but warning and also danger to the integrity of the nation and also insulting the feelings and patriotism of the citizens of this nation. Therefore, on merits, the petitioners are not entitled for bail." The court looked into the issue of the Magistrate having no power to extend the period of 90 days for filing the charge-sheet as per Section 43D(2) of UA(P)Act and whether the accused were entitled to default bail under section 167 of the Criminal Procedure Code. Although the Special Public Prosecutor had contended that as per Section 2(d) of the UA(P) Act, the...

Once UAPA Is Invoked, Special Court Alone Can Extend Custody Beyond 90 Days: Karnataka HC Directs Release Of Terror Accused On Default Bail

Mustafa Plumber

Tags