Calling the order of the lower court granting extension of time to the Pune police to file a charge sheet against Surendra Gadling as ‘illegal’, Justice Mridula Bhatkar of the Bombay High Court quashed the Pune court order. Today’s order paves the way for Gadling and other activists to be released on bail. However the Judge stayed her own order from becoming operational till November 1, following a request from the Maharashtra government, thus giving time to the state to appeal.
Essentially, the Bombay high court allowed a petition filed by Surendra Gadling and four other activists. In effect, now, the trial court must grant bail to all first five arrested activists. Justice Mridula Bhatkar held that the Pune court order granting the police an additional 90 days to file the charge sheet and consequently extending the custody of Gadling and others was “illegal”.
Under the UAPA, bail is a matter of right after ninety days if the charge sheet has not been filed. To But, if there is a delay on a valid ground, the public prosecutor in the case is permitted to file a report before the trial court explaining the reasons for the delay, and seek more time.
The Act mandates that if the trial court is satisfied with the report, it can extend the time for filing the charge sheet up to 180 days if the prosecuting agency applies their mind and lays down reasoned grounds for the delay before the court.
In the present case, it was alleged that the ‘reports’ that were considered by the lower court in Pune for grant of extension included an application and a written submission made by the Assistant Commissioner of Police (ACP), and the Investigating Officer. The public prosecutor was present in the court but he did not argue before the Court.
She noted that the law mandated that the prosecutor assist the courts in all cases, unless something specific was required of the IOs, or other parties in any case. “The lower court committed an illegality in permitting the IO and the ACP to argue, the Judge has held.
The Order of the Bombay HC may be read here.
Gadling had argued before the high court that these reports cannot be considered same as the public prosecutor’s report.
Advocate General Ashutosh Kumbhakoni, however, argued that the ‘report’ mentioned under the Act must not be taken too “literally and that the ACP and IO’s arguments should be considered a prosecutor’s report. He further argued that police reports in the present case also bore the signature of the public prosecutor concerned and therefore, must be considered a valid document for granting the extension. On the previous hearing on Tuesday, Justice Bhatkar had questioned why the lower court had permitted the IO and the ACP to argue independently when the prosecutor was present in court.
She noted that the law mandated that the prosecutor assist the courts in all cases, unless something specific was required of the IOs, or other parties in any case. “The lower court committed an illegality in permitting the IO and the ACP to argue independently,” she had said.
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