The Nagpur Bench of Bombay High Court stressed that substance was more important than form, when meeting the mandatory requirements under section 43-D(2)(b) of Unlawful Activities Prevention Act (UAPA) for seeking extension of detention. The single-judge bench of Justice Manish Pitale found no error in the manner in which the Sessions Court decided upon the application seeking extension of detention, and held that a copy of the report of the public prosecutor is not required to be served upon the accused as the investigation is still in progress.
The applicant (accused), Sanjay Avathare challenged two orders passed by the Sessions court, Gadchiroli; one allowing extension of detention beyond 90 days and the other rejecting default bail application of the accused. The case against the accused was that he was caught carrying Rs. 1.2 crore in cash and he claimed that he was a Manager and that the cash was meant for distribution amongst labourers. Hence, an FIR was lodged under UAPA. Investigation revealed that the cash was meant for payment to Naxalites.
When the period of 90 days from detention was about to expire, an application for extending the detention of the accused was moved, under section 43D of UAPA. The applicant and another accused were put to notice in respect of the said application, and they were heard through their counsel. The Sessions Court allowed the application seeking extension of detention for another 90 days, hence, the application for default bail moved by the applicant was rejected.
The counsel for the applicant argued that the mandatory requirement of section 43-D(2)(b) was violated in as much as a proper report indicating satisfaction of the public prosecutor, indicating progress of the investigation and specific reasons for further detention of the accused, was not on record. Further, he contended that report of the public prosecutor was not served upon the accused and that the application was allowed in a mechanical manner. He stated that the applicant was not given a fair opportunity to contest the application for extension of detention.
He also argued that a joint application seeking extension of detention of the applicant and the other accused Lumaji Waghare was defective, as separate applications ought to have been filed enumerating independent grounds while seeking extension of detention of each of the accused. He also contended that the affidavit of the Investigating Officer was not on record supporting the application seeking extension of detention.
The APP for the state, Sagar Ashirgade submitted that the mandatory requirements of law were duly followed and that a report satisfying the requirements of proviso to section 43-D(2)(b) of UAPA. He submitted that a joint application was justified since allegations against both were identical. He also argued that the applicant was not entitled to the copy of the report of public prosecutor because the investigation was still under way.
The court’s observations
The court stated that it shall examine whether mandatory requirements under section 43-D(2)(b) of UAPA were followed, since, if they were not complied with, the applicant would certainly be entitled to consequential relief of default bail. The section states as follows:
“43-D. Modified application of certain provisions of the Code. —
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—
(b) after the proviso, the following provisos shall be inserted, namely:—
“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it 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, extend the said period up to one hundred and eighty days…”
The court cited Hitendra Vishnu Thakur and ors v. State of Maharashtra and ors, (1994) 4 SCC 602 whereby a similar provision under Terrorist Destructive Activities (Prevention) Act, 1987 came up for consideration before the Supreme Court. The court had held that the report of the public prosecutor is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements. “The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor,” the court held and if no such report is filed, the accused shall be granted default bail upon application.
Further, in State of Maharashtra v. Surendra Pundlik Gadling and others, (2019) 5 SCC 178 the Supreme Court had emphasised on “substance over form” when complying with mandatory requirements under section 43-D(2)(b) of UAPA. In this case, the Investigating Officer had submitted an application seeking extension of detention and after referring to such an application, the public prosecutor had in turn moved an application before the Court. The court held that “even if technically there was absence of a “report” of the public prosecutor, yet the prayer for extension of detention of the accused deserved to be granted because there was sufficient material to show that the public prosecutor had indeed scrutinized the material…” the court had thus, allowed extension of detention in this case.
Coming back to the present case, the court stated that the public prosecutor had submitted a report as per proviso to section 43-D(2)(b) of the UAPA stating the progress of investigation and the reasons for extension of detention. A reference was also made to the manner in which the Investigating Officer had proceeded in the matter. The court thus held that the mandatory requirement of a report of the public prosecutor stating reasons for extension of detention is very much satisfied.
The court pointed out that a detailed application was filed which was served upon the applicant and he was represented before the court during the hearing. The court reiterated the Supreme Court’s observations in the Hitendra Vishnu Thakur case that purpose of provisos added to section 43-D(2)(b) of the UAPA, is to ensure that the public prosecutor applies his mind to the reasons put forth by the Investigating Officer while seeking extension of detention.
The substance of the report and the application moved for extension of detention takes precedence over the form of such a report or application, the court held. The court perused the said application and found that it states in detail the progress of the investigation and the reasons for seeking extension of detention. Also, records showed that the public prosecutor had indeed submitted a report before the Sessions Court and that the same was considered by the court. The court thus concluded that the mandatory requirements of law were satisfied.
Copy of report not furnished to accused
The court refused to accept the contention of the applicant’s counsel that the order stood vitiated because the report of the public prosecutor was not furnished to the accused. The court held that such a requirement cannot be read into proviso to section 43-D(2)(b) of the UAPA, since the investigation is still in progress.
“The mandatory requirement of the said proviso is that there should be a report of the public prosecutor indicating the progress of investigation and the specific reasons for further detention of the accused and satisfaction of the Court with such a report. It is crucial that the stage when such an application is moved by the public prosecutor, the investigation is still under progress and it is for the Court to be satisfied with the report submitted by the public prosecutor. Thus, requirement of service of copy of the report to the accused cannot be read into the said proviso to section 43-D(2)(b) of the UAPA,” the court held.
The court further held that since the applicant was served upon the copy of the application and was represented by a counsel during the hearing of the application, no prejudice was caused to the accused persons in the facts and circumstances of the present case for opposing the prayer for extension of detention moved by the public prosecutor.
Joint application justified
The court also accepted the submission made by the APP regarding moving a joint application for extension of detention of both accused. The court concurred with the APP that the progress of the investigation had demonstrated the role of the said two accused persons being identical and the reasons for seeking the extension of their detention were also identical and hence there was no error in submitting joint application.
The court’s decision
The court concluded by stating that the Sessions Court had referred to the reasons put forth by the public prosecutor seeking extension of detention and also perused the case diary for ascertaining the progress of the investigation. Thus, the court found no reason to interfere with the court’s order granting extension of detention and the rejection of default bail to the applicant was only consequential. The court, thus dismissed the application for being without merit.
Recent case in J&K High Court
In a recent case, the Jammu and Kashmir High Court held that the request of an Investigating Officer for time extension for detention under UAPA, cannot be a substitute for the report of the public prosecutor. In this case, the public prosecutor had not filed any report which is contrary to the facts in the above case, where the report was indeed found to be on record before the Sessions court. Yet, the Nagpur bench of Bombay High Stressed upon “substance over form” when meeting the mandatory requirement of the prosecutor’s report.
The requirements under section 43-D(2)(b) of the UAPA mandating report by the prosecutor is to ensure that the prosecutor does not merely forward the Investigating Officer’s request for extension of time to complete investigation and indeed applies his mind. The prosecutor has an option to agree or disagree with the reasons given by I.O. for seeking extension of time and thus, the report of the public prosecutor has been given due significance in the legislation. Yet, the Supreme Court in the Surendra Gadling case has dissolved this proviso and given importance to “substance” over form, negating the intent of the legislation and its mandatory requirements.
The complete judgement may be read here:
Detention order of accused already in custody must justify preventive detention: MP High Court
NIA court failed to take humanitarian approach: Bom HC grants temporary bail to Surendra Gadling
PP must submit report giving specific reasons for detention under UAPA: J&K and Ladakh HC