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An important order delivered by a Division Bench of the High Court of Jammu and Kashmir and Ladakh, has held that the request of an Investigating Officer (IO) for time extension for detaining an accused beyond the stipulated period of 90 days, cannot be a substitute for the report of the public prosecutor under section 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967.
Section 43D(2)(b) provides that if the investigation agency has not been able to complete the investigation in the case within the prescribed period of 90 days, the public prosecutor appearing for the agency has to mandatorily file a report before the court. Further, if the court is satisfied by such a report, the progress of the investigation and the specific reasons provided by the prosecutor for detaining the accused, it shall extend the period of custody to 180 days.
In the present case before the High Court, the appellants, Showkat Ahmad and Nayeem Ahmad Khan, have had their detention period extended thrice by the trial court, Srinagar, beyond the period of ninety days. They contended before the High Court that there is no report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of ninety days. It was argued that the trial court did not provide any specific reason to extend their detention.
Showkat and Nayeem have been booked under sections 17 (punishment for raising funds for a terrorist act), 18 (punishment for conspiracy), 38 (offence relating to membership of a terrorist organisation), 39 (offence relating to support to a terrorist organisation) and 40 (offence of raising funds for terrorist act) of UAPA.
Court’s observations
After being denied bail by the trial court, the appellants approached the High Court, averring that since the police agency couldn’t complete its investigation within a period of 90 days, they should be released on bail.
On the outset, the Division Bench of Justices Dhiraj Singh Thakur and Vinod Chatterji Koul, noted that the trial court had misdirected itself by not granting bail to them. “It is pertinent to mention here that the status of the prosecutor is not a part of the investigating agency as it is an independent statutory authority,” read the order.
The Bench referred to two cases of State of Maharashtra v. Surendra Pundlik Gadling (2019) and Hitendra Vishnu Thakur and others v. State of Maharashtra and others (1994), where the Supreme Court has ruled that the public prosecutor has the option to agree or disagree with the reasons given by the Investigating Officer (IO) for seeking extension of time, and that the request of an IO for extension of time is not a substitute for the report of the public prosecutor.
Citing these cases, the High Court Bench reiterated, “It comes to fore that emphasis has been laid by the Supreme Court on the importance of scrutiny by a Public Prosecutor so as not to leave a detenu in the hands of I.O. alone, inasmuch as Public Prosecutor has an option to agree or disagree with the reasons given by I.O. for seeking extension of time. Besides, request of I.O. for extension of time is not a substitute for the report of a public prosecutor under the provisions of Section 43D (2)(b) of ULA(P) Act.”
Noting that the trial court did not deal with the rights of the appellants to grant of default bail, the High Court set aside its order and granted bail to Showkat and Nayeem.
The order may be read here:
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