"IO's Request Can't Substitute Public Prosecutor's Report To Extend Detention Period Under UAPA Beyond 90 Days": J&K&L High Court

The Bench of Justice Dhiraj Singh Thakur and Justice Vinod Chatterji Koul stressed the importance of scrutiny of detention under UAPA by a Public Prosecutor so as not to leave a detenu in the hands of I.O.

What does Section 43D (2)(b) of UAPA say?

It may be noted that Section 43D(2)(b) of the ULA(P) Act states that if the police agency is not able to complete investigation of a case under UAPA within a period of 90 days, then the detention could be extended by the Court for a further period of 180 days provided that 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 said period of ninety days.

In other words, the section simply makes the report by a public prosecutor, a determining factor for extending the detention of an accused beyond the period of 90 days.

The matter in brief

Appellants were arrested in connection with a case under Section 120-B RPC, 17, 18, 38, 39 and 40 ULA(P) Act. They preferred applications before the Trial Court for grant of bail. The Trial Court by the order impugned dismissed the applications.

They moved the High Court averring that since the police agency couldn't complete investigation of their case within a period of 90 days, thus, after the expiry of this period, they got an indefeasible right of being released on bail.

Importantly, they averred that there was no formal request from the public prosecutor to extend the period of detention and that the Trial Court extended their detention beyond the period of ninety days on the applications of Investigating Officer (I.O.).

They submitted that there had been no application, as was required in law, to be filed by Public Prosecutor under and in terms of provisions of Section 43D(2)(b) of ULA(P) Act and therefore, they argued that they were entitled to default bail.

They submitted that there was no report of the public prosecutor indicating the progress of the investigation and specific reasons for the detention of accused beyond the period of ninety days.

Court's observations

Noting that the Trial Court had misdirected itself while passing the impugned order, the Court stressed that the status of the prosecutor is not a part of the investigating agency as it is an independent statutory authority

Therefore, the impugned Order dated 25^th May 2019, passed by the court of Special Judge designated under NIA Act, Srinagar, was set-aside and the appellants were held entitled to bail subject to their furnishing personal bond in the amount of Rs.1,00,000/- each with two sureties each of the like amount to the satisfaction of the Presiding Officer.

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