6 Dec 2022 10:56 AM GMT
The Calcutta High Court recently held that once offences under UAPA are added to a case/FIR, a Magistrate is denuded of his power to remand the accused in terms of Section 167 of the Code of Criminal Procedure (as amended under UAPA) beyond a period of 30 days.The bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta held thus as it concluded that a Magistrate neither has the power...
The Calcutta High Court recently held that once offences under UAPA are added to a case/FIR, a Magistrate is denuded of his power to remand the accused in terms of Section 167 of the Code of Criminal Procedure (as amended under UAPA) beyond a period of 30 days.
The bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta held thus as it concluded that a Magistrate neither has the power to try, nor commit cases involving UAPA, and therefore, once the addition of offences under UAPA is made to the FIR, the same would denude the Magistrate of the power to remand an accused beyond thirty days.
Further, the Court also ruled that after the expiry of the said 30 days, the remand power can be exercised by the court which is empowered to take cognizance and try the offence, i.e. the Special Court and in its absence, the Court of Sessions.
In its order, the Court essentially held as follows:
(i) Once offences under UAPA are added to a case, Magistrate is denuded of his power to remand in terms of Section 167 of the Code of Criminal Procedure (as amended in UAPA) beyond a period of 30 days;
(ii) Thereafter, the accused must be produced before the Special Court constituted under Section 11 or 22 of the NIA Act (as the case may be) for the purposes of remand as well as the extension of the period of remand in terms of proviso to Section 43D(2) of the UAPA;
(iii) In the absence of a Special Court constituted as aforesaid, Court of Sessions shall exercise all powers and jurisdiction of the Special Court in terms of Section 22(3) of the NIA Act including the power to remand as well as the power to extend the period of remand in terms of proviso to Section 43D(2) of the Act.
The case in brief
Essentially, the Court was hearing a regular bail plea filed by an accused/petitioner who was arrested on April 3, 2022. Later on, certain UAPA Offences were added against the petitioner. The petitioner continued to be remanded vide orders of the Magistrate from time to time.
Now, Upon expiry of 90 days, on September 9, 2022, the petitioner wrote a letter from jail praying for statutory bail to the Magistrate and on September 19, a formal prayer in this regard was also made by him. However, on September 20, 2022, the prosecution filed an application before the Sessions Judge for an extension of the remand in terms of the proviso to Section 43D(2) of the UAPA. The Sessions Judge, on September 22, extended the period of detention of the petitioner behind the back of the petitioner.
Since the petitioner's prayer for statutory bail was turned down, the petitioner approached the High Court.
High Court's observations
Hearing his matter, the Court, at the outset, opined that the petitioner had prima facie made out a case for statutory bail and therefore, the HC released him on interim bail on November 17.
Thereafter, the Court examined and analyzed the NIA Act and the UAPA, to conclude that only a special court constituted by the Central Government or the State Government, as the case may be, under the NIA Act has exclusive jurisdiction to try and take cognizance of offences under UAPA and also extend the period of detention pending investigation in terms of proviso to sub-section (2) of Section 43D of the UAPA.
However, the Court did add that in case the investigation is conducted by a state agency and no special court is notified under sub-section (1) of Section 22 of the NIA Act, then as per sub-section (3) of section 22 of the NIA Act, the Court of Sessions becomes empowered to take cognizance and try scheduled offences and also, remand the accused as well as extend the period of remand in terms of proviso to Section 43D(2) of the Act, until the Special Court is notified.
Against this backdrop, the Court concluded that as per Section 167 of the CrPC r/w section 43D (2), a Magistrate is not empowered to remand an accused beyond thirty days as he does not have the power to try or commit the case and such power lies only with the special court or in its absence, the sessions court.
Now, adverting to the facts of the case, the Court noted that in the instant case, the Magistrate could not have remanded the accused beyond 30 days after the offences under UAPA were added. However, the Court further opined since it was a case of statutory, therefore, a hyper-technical approach was not required to be taken.
Consequently, the Court held that even though the petitioner had made an application for statutory bail before the court of Magistrate, which was remanding him, though incorrectly, and such application had been made before the prayer for extension of further remand in terms of sub-section (2) of Section 43D of UAPA, the accused was entitled to statutory bail.
Accordingly, the Court confirmed the interim bail granted to the petitioner vide order dated 17th November 2022 on the same terms and conditions.
Case title - Pratik Bhowmik v. State of West Bengal [C. R. M. (DB) 3590 of 2022]
Case Citation: 2022 LiveLaw (Cal) 353
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