Unlawful Activities (Prevention) Act, 1967 – s.43D(2)(b), proviso – Claim of respondents/detenues for default bail based on the plea of non-fulfilment of requirement of proviso to s.43D(2)(b) – In the instant case, application for extension of period for investigation was filed by IO – On the same day itself, another application was filed under s.43D of the Act, for extension of period for further investigation and filing of charge-sheet in the said crime enumerating grounds in detail and signed by the Public Prosecutor – Request made in the application was granted – Aggrieved, respondents challenged the said order before High Court – High Court held that the Public Prosecutor did not apply his mind and thus mandatory requirement of the proviso to s.43D(2)(b) was not fulfilled – On appeal, held: The first document, purporting to be the application of the IO, contained the reasons for extended period of investigation but the second document detailed out the grounds in extenso and cannot be said to be a mere reproduction of what was stated in the first document – The second document talked about the development and progress in the investigation – A perusal of the grounds showed that the allegation was that all the respondents were active members of the banned organisation and in the course of investigation, the seized electronic records were sent to FSL, Mumbai, for its report, which was still awaited – The data was stated to be voluminous and further investigation was also required into the funding of the accused persons – The criminal conspiracy was stated to be spread over a number of cities, which needed further investigation – Further, the telephonic interconnection between the respondents and other ‘absconding and underground accused persons’ was also set out as grounds for seeking the extension – The material set out in this document met with the requirements of the proviso, insofar as the reasons for seeking extension for the period of investigation were concerned – It cannot, thus, be said that there was complete absence of application of mind by the Public Prosecutor – Since there was, as per the comparison of the two documents, an application of mind by the Public Prosecutor as well as an endorsement by him, the infirmities in the form would not entitle the respondents to benefit of a default bail when in substance there was an application of mind – Order of High Court is set aside.
Allowing the appeal, the Court
HELD: 1. Whether the necessary ingredients of the proviso to Section 43D(2)(b) of the said Act were set out in the application submitted:
A perusal of the proviso to Section 43D(2)(b) of the said Act shows that there are certain requirements that need to be fulfilled, for its proper application. These are as under: It has not been possible to complete the investigation within the period of
90 days. A report to be submitted by the Public Prosecutor. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days. Satisfaction of the Court in respect of the report of the Public Prosecutor. The document which purports to be the report of the Public Prosecutor is, in the case in the form of an application under Section 43D of the said Act. A perusal of the contents of the document shows that the development and progress in the investigation have been set out. The developments leading to the incident have also been so set forth. A perusal of the grounds shows that the allegation is that all the respondents are active members of the banned organisation, CPI (Maoist). In the course of investigation, documents, pen drives, CD, DVD, etc. were seized and the electronic records were sent to FSL, Mumbai, for its report, which was still awaited. The data was stated to be voluminous and further investigation was also required in to the funding of the accused persons. The criminal conspiracy was stated to be spread over a number of cities, which needed further investigation, and financial details of the respondents were still being ascertained. Further, investigation into the telephonic interconnection between the respondents and other ‘absconding and underground accused persons’ and also into the attempt to train young students were also set out as grounds for seeking the extension. It was also set out that, upon completion of the investigation, permission under Section 45 of the said Act is sought for sanction of prosecution for filing the charge-sheet. [Paras 15-16] [318-G-H; 319-A-E]
2. Analysis of the document purporting to be the report of the Public Prosecutor:
Initially, on 30.8.2018, an application was submitted by the IO through the Public Prosecutor, setting out the reasons for seeking extension of ninety (90) days, to complete the investigation under the said Act. The submission for the appellant is that on the issue being visited in greater depth on the same day, by the Public Prosecutor, a second document was filed, which is, in fact, the report of the Public Prosecutor, in terms of the provisions of Section 43D of the said Act. A closer look at this document does indicate that the State of Maharashtra is represented through the Assistant Commissioner of Police but according to the learned senior counsel it is only a description of there presentation. The document also purports to be an “application” under Section 43D of the said Act for extension of a period of ninety (90) days for further investigation and the word “application” is again repeated before the recital of facts. The fact that the Public Prosecutor had duly appended her signatures at the end of the application, and the very fact that there were changes in the second application, from the earlier application would show, as contended, that there has been application of mind of the Public Prosecutor, which is the real sine qua non of the report to be made by the Public Prosecutor. [Paras 19, 22] [320-A-D; 322-F-G]
Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors. (1994) 4 SCC 602 : [1994] 1 Suppl. SCR
360 ; Sanjay Kumar Kedia alias Sanjay Kedia v. Intelligence Officer, Narcotics Control Bureau & Anr. (2009) 17 SCC 631 : [2010] 1 SCR 555
– relied on.
3. The first document, purporting to be the application of the IO, contained the reasons for such extended period of investigation but the second document details out the grounds in extenso and cannot be said to be only a mere reproduction of what is stated in the first document. It cannot, thus, be said that there has been complete absence of application of mind by the public prosecutor. There is merit in the contention for the appellant/State that the question is more of substance than form. The second document in the form of an application has been filed on the same day. It is not as if the first document, which is an application of the IO was withdrawn to file the second document, which purports to be the report of the public prosecutor. It is on the analysis of the first document that the second document has been filed, albeit both containing the endorsement of the public prosecutor. There are averments in the second application referring to the progress of the investigation and the rejoinder elucidates that the public prosecutor had the benefit of scrutinising these papers. There are additional and expanded grounds set out in the second document. The public prosecutor has the option to agree or disagree with the reasons given by the IO for seeking extension of time but in the facts of this case, the second document in the form of an application shows scrutiny of the first document and thereafter details grounds and expanded reasons for the requirement of further time to complete the investigation. [Para 36, 37, 39] [327-B-E; 328-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.