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Ashadullah Biswas Vs. State of West Bengal - (High Court of Calcutta) (24 Jan 2018)

Submission of valid report of Public Prosecutor indicating progress of investigation and disclosing specific reasons for extension of period of detention is sine-qua-non for such extension



Challenge in instant application under Section 482 of the Code of Criminal Procedure, 1973 (Cr. PC) is the order passed by learned Chief Judicial Magistrate, in connection with case registered under Section 489B/489C of the Indian Penal Code, 1860 (IPC) corresponding to case 4062 of 2016 with added Section 15(1)(4)(iii)/16 of Unlawful Activities Prevention Act, 1967 (UAPA Act) whereby and where under learned Chief Judicial Magistrate has rejected the prayer for statutory bail of the Petitioner. Petitioner contended that, the investigating agency acted in material illegality in filing such successive applications before the learned Chief Judicial Magistrate, only in order to keep the Petitioner behind the bar to feed fat their grudge against the Petitioner who is a reputed businessman of the locality.

The order of learned Chief Judicial Magistrate palpably appears to be illegal for non compliance with the mandatory provision of Section 43-D(b) of the UAPA Act. The statutory period of detention of the present Petitioner expired on 22nd March, 2017 but the learned Chief Judicial Magistrate rejected the bail prayer without assigning any reason. It is well settled principle of law that, the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge sheet. Sanction is an enabling provision of prosecution which is totally separate from the concept of investigation, which is concluded by filing of the charge sheet.

The UAPA Act has been enacted with the object of dealing with terrorist activities and prevention of some unlawful activities of individuals and the associations. Rule 3 of the said Act has provided a specific time limit to submit its recommendation to the concerned government within 7 days by an independent authority scrutinizing and evaluating the materials collected during investigation, which culminated in filing of charge sheet. This special act provides a special procedure for according sanction. A specific authority has been assigned with the task of according such sanction, which is neither associated with the prosecution nor has had any connection with the investigating authority. The sanction in a UAPA Act is a sine-qua-non for submission of charge sheet under UAPA Act. Therefore, the alleged report in final form in the form of charge sheet filed by the investigating authority before learned Chief Judicial Magistrate cannot be accepted to be a charge sheet or report in final form for want of necessary sanction from the appropriate authority in terms of UAPA Act.

Learned Chief Judicial Magistrate did not comply with the provision of Section 43-D(b) of the UAPA Act while extending the period of detention from 90 days to 180 days. From the scheme of UAPA Act, it is clear that submission of a valid report of the Public Prosecutor not only indicating progress of investigation but also disclosing specific reasons for extension of period of detention is a sine-qua-non for extension of the period of detention under Section 167 (2) of the CrPC from three months to six months. The order impugned does not reveal any reasons for rejection of bail prayer of the Petitioner. The order also does not reveal as to what happened to that charge sheet said to have been filed by the Investigating Officer without any sanction as stipulated under UAPA Act. Unfortunately, learned Chief Judicial Magistrate did not even apply his mind with regard to the contents of that report in final form in terms of UAPA Act and has failed to take cognizance of the fact that the statutory detention of the petitioner was over on the date of his filing such application.

In the decision reported in Sayed Mohd. Ahmed Kazmi v. State, GNCTD and Ors, it was observed by the Apex Court that, further detention of the accused would be deemed to be illegal for not having appropriate report of the Public Prosecutor for extension of the period of detention and subsequent filing of such report cannot legalize the further detention of the accused giving retrospective effect to such report. It has also been observed in Uday Mohanlal Acharya v. State of Maharashtra that, unjustified denial for right to statutory bail to an accused would not result in extinguishment in such right by subsequent filing of police report. Accordingly, the order impugned passed by learned Chief Judicial Magistrate is set aside and the Petitioner is directed to be released on statutory bail upon furnishing bond.

Relevant : Sayed Mohd. Ahmed Kazmi v. State, GNCTD and OrsMANU/SC/0900/2012: AIR 2012 SC 660, Uday Mohanlal Acharya v. State of MaharashtraMANU/SC/0222/2001: (2001) 5 SCC 453


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