Section 43D UAPA: Accused not heard, report of the prosecution doesn’t ‘need to be shared’ under the law

In this recent judgment by the Madras High Court, two SriLankan nationals are denied bail along with their right to be heard

Section 43D UAPA

On September 28, 2022, the Madras High Court rejected bail to two Srilankan nationals who were charged with attempting to siphon off money from a Mumbai bank account of a deceased widow in order to support the LTTE. The National Investigation Agency (NIA) had already turned in its final report, therefore the bail was rejected by the justices PN Prakash and Teeka Raman on the basis that the right to default bail was irrevocably extinguished.

Background of the case: The appellants and a few other individuals had made an attempt to steal money from the SB account of one Hamida Laljee, whose death left the account’s balance of almost forty crore rupees unattended. The Liberation Tigers of Tamil Eelam (LTTE), a designated terrorist organization under the UAPA, learned of this and made the decision to covertly siphon off the aforementioned funds for their group. One Umakanthan @ Idhayan @ Charles @ Iniyan, a key LTTE operative stationed in Europe was closely monitoring the said savings bank account and through him one Letchumanan Mary Franciska (Mary) came to India. After obtaining documents like a pan card, adhaar card and passport, she along with the appellants attempted to create fake Power of Attorney in an attempt to obtain the funds. However, before they could execute the plan, the team was intercepted and thus this case was registered against them.

Charges Filed against them were under Section 12(1)(b), 12(1-A)(a) of the Passport Act, 1967 r/w 420, 465, 468, 471 IPC r/w 14(a) of Foreigners (Amendment) Act, 2004. Section 18, 39 and 40 of the UAPA were added later. Pursuant to which the case records were transferred from the Court of the Judicial Magistrate to the Court of Principal District and Session, Chengalpattu, which is the designated court for trial under the UAPA cases.

According to Section 167 of the CrPC, the ninety-day remand period was set to end on December 31, 2021. The remand period was prolonged by 90 days after a report was submitted by the Special Public Prosecutor asking for its extension. The petitioners have challenged this decision of extension by coming before the High Court. Although the NIA had submitted its final report on March 29, 2022, the application contesting the ruling was not submitted until April 4, 2022.

Judgment of the Madras Court:

In the case of T.Keeniston Fernando v. State, the appellant’s main argument was that they were never heard nor given notice before the impugned decision was made when they appeared before the High Court. The court, however, rejected this claim, pointing out that it was not required by law. The court further noted that relevant materials are presented to the court regarding the course of the inquiry when a request for remand is submitted together with a report pursuant to Section 43D of the UAP Act. Sharing these details with the accused was not permitted.

The court stated in the order: “When a requisition for remand under Section 167 of Cr.P.C. with a report is filed by the Special Public Prosecutor under the proviso to sub-section (2) of Section 43D of UAP Act for extending the period of remand, materials have to be placed before the court to show progress of the investigation and reasons for the remand / extension of remand. For this, several material particulars and trajectory of the investigation would be disclosed including the names of some suspects whom the investigation agency would have to nab. If the copies of these documents are furnished to the accused, then, it would be easy for those who are in the radar to just escape from the clutches of law.”

The judgment of the Court can be read here.

The court then considered the two questions, viz.,

(1) Whether notice to the accused means, ‘hearing’ the accused; and

(2) Whether the indefeasible right to default bail is extinguished after the charge sheet is filed.

To determine the abovementioned, the court relied on the judgment in the famed Sanjay Dutt V State through CBI Bombay, SLP (crl.)  1834-35 of 1994, wherein the Apex Court had ruled unambiguously that notice to the accused did not equate or amount to a written notice. A notification would be sufficient if it just informed the accused that the issue of extending the deadline for finishing the inquiry is being considered. The court had also held that “indefeasible right” of the accused to be enlarged on bail is enforceable by the accused only from the time of default bail until the filing of the challan and it does not survive or remain enforceable on the challan being filed. With this, the court dismissed the appeal and concluded the matter. The said judgment brings up the question whether the said provision under the UAPA violates the rights guaranteed to an accused by the Constitution of India?

Previous Jurisprudence of Section 43D of the UAPA

The UAPA provides police and state authorities a long window to investigate and prosecute the arrested individual, which defeats the purpose of a speedy and fair trial. While 90 days are provided for completion of the investigation, a person can be detained for upto 180 days without even filing a chargesheet. The extension of detention must be based on the discovery of certain evidence that presents a connection between the detainee and the act committed and not on the mere indication of the progress of the investigation.

While the present case is a serious one related to ‘funding of a terror outfit’, other cases where UAPA has been applied are varied. Even there, courts — both the lower and higher ones — continue denying bail to individuals citing ‘process of investigation’ as a reason. This recent judgment by the Madras High Court furthers this arbitrary process of granting bail and makes it more cumbersome for the accused to defend their case. As the burden of proof is on the accused, denial by the court to disclose the case report submitted by the prosecution to the accused will result in bail becoming a distant dream.

There is a lack of uniformity between the decisions given by the high courts and the lower courts when it comes to UAPA.

While in the present case the accused were not even given the opportunity to be heard, the High Court of Delhi in Khalid V. State (Govt. of NCT of Delhi), CRL.M.C. 1697/2020 had held that an accused under the Unlawful Activities (Prevention) Act, 1967 has the right to be heard against an application for extension of time for completion of investigation accruing out of the proviso to Section 167 of the Cr.P.C as modified by Section 43(d)(2) of UAPA.

In the said case(Khalid supra) , the court had held that “It is apparent from the above that a court is proscribed from extending the judicial custody beyond the period specified without a notice to the accused. The purpose of the notice is to afford him an opportunity to oppose the grant of extension beyond the period of ninety days on all legitimate and legal grounds as available to him.”

The above passage was also referred to by the Division Bench of the Delhi high court in Syed Maqbool v. NIA: (2014) 8 HCC (Del)107. In that case, the Division Bench of this Court had, after noting the aforesaid passage, observed that the said decision did not assist the appellants (in that case) in any manner, because notice was served upon the appellants and the learned Designated Court had extended time after arguments were heard.” It was further expounded that “the question whether an accused has a right to be heard to oppose an application seeking extension of his custody and extension of time for completion of the investigation, is answered in the affirmative.”

The judgment of the said case can be read here.

Meanwhile, the Karnataka High Court granted default bail under section Section 167(2) of the Criminal Procedure Code (CrPC) to 115 accused in the case related violence that took place within the limits of the DJ Halli and KG Halli police station, on August 11, 2020. In the said case, the court had observed that “The fundamental right of an individual recognized under Article 21 of the Constitution of India cannot be defeated other than in accordance with law. Since the order passed by the trial court on the application filed by the prosecution seeking extension of time for completion of the investigation is already held to be bad in law, the statutory right that has accrued to the petitioners/accused immediately after the completion of the first 90 days of period which right has been availed of by them by filing an application under Section 167(2) of the Code, seeking statutory bail and also offering surety cannot be denied to the petitioners/accused.”

The order can be read here.

The entire burden to prove innocence rests on the accused under UAPA. In the case, Sanjay Gangaram Avathare v. The State of Maharashtra, the Bombay High Court had also gone into the question whether non deliverance of the prosecution’s report, demanding extension of remand, to the accused will formulate a ground for bail. The Court had then noted that said requirement of furnishing could not be read into the proviso of Section 43D(2)(b) of the UAPA when the investigation is under process. The requirement of the proviso reads that the report of the public prosecutor must indicate the progress of the investigation and the specific reasons for further detention and satisfaction of the Court. 

It was held by the court that “Insofar as the contention raised on behalf of the applicant that the order stood vitiated because report of the public prosecutor was not furnished to the accused, suffice it to say that such a requirement cannot be read into proviso to section 43-D(2)(b) of the UAPA, for the reason that investigation was still under 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 the public prosecutor moves such an application, the investigation is still under progress, and it is for the Court to be satisfied with the report submitted by the public prosecutor. Thus, the requirement of service of a copy of the report to the accused cannot be read into the said proviso to Section 43-D(2)(b) of the UAPA.”

The order of the court can be read here.

As can be deduced through these judgments, the courts are making it increasingly difficult for the accused to get bail under the UAPA. Consistent efforts are being made, especially by the lower courts and the high courts, to ‘seal cover the information’ and through this, selectively conceal the case being made against the accused. While in some cases, the Delhi High Court and even the Supreme Court have enabled bail, viz Asif Tanha v/s NCT, DevanganaKalita& Natasha Narwal v/s NCT, both in 2021, this judgment of the High Court will, again,have a chilling effect on bail being granted by courts to the accused individuals.

Sections like 43 D may be arguably essential in the battle against terrorism, but safeguards against the wrongdoing of investigating authorities are also crucial to protect people’s right to life. Therefore, in order to grant or deny bail under UAPA, the burden of proof on the prosecution must be high enough to match the seriousness of the charge and the scope of the court’s discretion must be broad enough to take into account factors that have been carefully, elaborately, and scientifically determined. When evaluating whether to grant bail requests under UAPA, consideration should be given to the consequences of UAPA and the accused’s risk assessment.

In this new India, when a rapacious state is aiming to dominate the narrative and even control every democratic institution, an independent and effective judiciary is the final line of defense against executive abuse. India’s democratic credentials are rapidly deteriorating due to an increasing tendency of administrations using harsh anti-terror legislation to arbitrarily muzzle dissident voices and the judiciary’s apathy to these egregious abuses of freedom.

India, and the judiciary in particular, has to step up to ensure fair, free and speedy trails for the accused as well as regulate the misuse that is becoming the norm when it comes to these anti-terror laws.




HRD Profile : DevanganaKalita 
HRD Profile: Natasha Narwal 

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