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Madras High Court Upholds Default Bail Of Accused Under UAPA, Admonishes State For Lackadaisical Approach
Aaratrika Bhaumik
6 July 2021 9:40 AM GMT
The Madras High Court last week upheld the decision of a lower Court, granting default bail to a man accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) over an allegedly offensive Facebook post. A Bench comprising Justices PN Prakash and R Pongiappan also admonished the investigating agencies for their lackadaisical approach in handling the case. The Court opined...
The Madras High Court last week upheld the decision of a lower Court, granting default bail to a man accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) over an allegedly offensive Facebook post.
A Bench comprising Justices PN Prakash and R Pongiappan also admonished the investigating agencies for their lackadaisical approach in handling the case. The Court opined "in this case, we find that there was absolutely no diligence at all" and accordingly refused to interfere with the impugned bail order.
Background
The Respondent was booked by the Madurai Police under UAPA and Section 505(1)(b) (public mischief) of IPC for allegedly uploading an offensive Facebook post. His remand was extended from time to time by a Judicial Magistrate and he was to become eligible for default bail under Section 167 CrPC on March 15, 2021.
However, on March 12, the case was transferred for investigation to the National Investigating Agency (NIA), which re-registered the case against the accused on March 14 in accordance with the applicable procedure.
In the meantime, the Inspector of Police proceeded with the investigation under Section 6 (7) and Section 10 of the NIA Act. (Until the NIA takes over the investigation of a case, the police is under an obligation to continue the investigation under the NIA Act.)
An application for extension of remand under Section 43(D)(2)(b) could be presented before the Principal District Judge (designated court under UAPA) on March 16 and finally, on March 19, 2021, the Court extended remand period from 90 to 180 days.
Meanwhile, the accused moved a petition for default bail before the Judicial Magistrate on March 17, who returned the petition citing that the matter has been transferred to the NIA.
On April 8, the case was from the file of Judicial Magistrate was transferred to a Special Court in Poonamallee, Chennai. Following this, the accused filed a plea before the Special Court seeking default bail on April 26. He brought to the notice of the Court that the prescribed 90-day period for investigation had expired on March 15 itself.
He also emphasised on the fact that despite filing a bail application before the Judicial Magistrate at Madurai as early as on March 17, the Magistrate continued to remand him from time to time but refrained from passing any orders citing that the case had already been transferred to the NIA.
Finally, on May 5, the Special Court granted bail to the Respondent and also dismissed the police custody application filed by the NIA. Both the orders came to be challenged in the present appeal.
Observations:
The Court observed that the NIA could not take the benefit of the law laid down by the Supreme Court in Rambeer Shokeen vs. State (NCT of Delhi) since the application under Section 43(D)(2) of the UAPA Act was filed only on 16.03.2021, which is after the expiry of the 90th day.
In the Rambeer Shakeen case, the Apex Court had ruled that Section 43(D)(2) of the UAP Act will come to the aid of a diligent police officer and Public Prosecutor who approach the jurisdictional Special Court with the request for extension of the remand period by filing the report "in time".
The Court noted that in the instant case the State had acted in a cavalier manner by causing delay and thereby extinguishing the statutory right of a prisoner to be released on default bail under Section 167(2) Cr.P.C. Further, it was pointed out by the Court that the police had sought the extension of remand on the 90th day by filing a defective report that combined two cases filed against the accused.
"The State should have ensured that Vivek was being produced before the Principal District and Sessions Court, Madurai, for remand. Unfortunately, they did not do that. However, the Public Prosecutor had approached the Principal District and Sessions Court, Madurai, with a manifestly defective report under Section 43(D)(2) of the UAP Act by combining two crime numbers. This shows how the State had acted in a cavalier manner for extinguishing the statutory right of a prisoner to be released on default bail under Section 167(2) CrPC.", the Court observed.
Further, the Court also criticized the manner in which the lower courts acted in this case. The Principal Sessions Judge allowed a remand extension application on March 19, ignoring that it was not a Court designated as a Special NIA Court, the High Court noted.
"The Public Prosecutor presented his report only on 16.03.2021 and that too before the Principal District and Sessions Court, Madurai, when the case had already been transferred to the NIA as early as 12.03.2021. Vivek (A.1) became entitled to default bail on 15.03.2021 as the charge sheet was not filed by then. Since Vivek (A.1) was being produced before the Judicial Magistrate No.II, Madurai, he naturally filed the default bail application on 17.03.2021 there. The Judicial Magistrate No.II, Madurai did not pass any orders on the default bail application that was filed by Vivek on 17.03.2021 on the ground that the NIA has taken over the investigation of the case. Strangely, the Principal Sessions Judge, Madurai, passed an order on 19.03.2021 extending the remand period to 180 days, ignoring the fact that his Court was not the designated Special Court under the NIA Act", the order read.
Accordingly, the High Court upheld the bail granted to the respondent by the Special Court and refused to entertain an application for police custody.
Case Title: Union of India v. Vivekanandan @ Vivek
