Uttaranchal High Court: In the present case, various appeals were filed under Section 21(4) of the National Investigation Agency Act, 2008 against order dated 11-05-2024, passed by the Ist Additional Sessions Judge, Haldwani (‘the Sessions Judge’), whereby the Sessions Judge, extended the period of investigation and detention of appellants beyond 90 days and the order dated 24-05-2024, passed by the Sessions Judge, whereby bail applications of appellants for release on default bail were rejected.
The Division Bench of Manoj Kumar Tiwari and Pankaj Purohit*, JJ., stated that the way in which investigation proceeded revealed the carelessness on the Investigating Officer’s part as to how slow the investigation proceeded with, moreover in a situation where appellants were languishing in judicial custody. The Court held that the Sessions Judge erred in passing the impugned orders and thus allowed the appeal, set aside the impugned orders, and directed that appellants were to be released on bail.
Background
A FIR dated 08-02-2024 was lodged in Police Station Banbhoolpura, Nainital under Sections 1471, 1482, 1493, 3074, 3325, 3536, 3957, 4278, and 4359 of the Penal Code, 1860 (‘IPC’); Section 25 of Arms Act, 1959; Sections 3 and 4 of Uttarakhand Prevention of Damage to Public Property Act, 2003 (‘the 2003 Act’) and Section 7 of Criminal Law Amendment Act, 1932 against unknown persons. Another FIR was also registered on 09-02-2024 under Sections 147, 148, 149, 120-B10, 307, 332, 353, 427, and 435 of IPC and Sections 3 and 4 of the 2003 Act against unknown people.
As per the said FIR, officials from Nagar Nigam and Police went to a place in Banbhoolpura locality to demolish two structures, i.e., one Madrasa and one Mosque, alleged encroachments on public land. When officials reached the spot they faced resistance from local public, who formed a mob and started pelting stones at officials and petrol bombs were also thrown in the process. During this process, officials rushed to Police Station Banbhoolpura after receiving reports that some persons attempted to set the police station on fire; service pistols and cartridges of officials were also snatched.
Appellants were arrested and the detention period of 90 days as per Section 167(2)(a)(i) was going to expire on 12-05-2024 and 13-05-2024 respectively. On 09-05-2024, the offence under Section 15/16 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA Act’) were added, which gave right to the prosecution to get the period of detention extended to a period of maximum of 180 days under the proviso to Section 43-D(2)(b). On the application dated 10-05-2024 submitted by the police under Section 43-D(2)(b), the Sessions Judge vide order dated 11-05-2024, allowed the application for extension of the period of investigation and detention for further 28 days. Since the period of completion of investigation and detention was extended beyond 90 days by the Sessions Judge, default bail application moved by appellants was rejected vide impugned order dated 24-05-2024. Thus, being aggrieved by the said orders, appellants filed the present appeal.
Appellants challenged the impugned orders stating that they were not heard by the Sessions Judge, before passing the impugned order dated 11-05-2024 whereby the period of investigation and detention of appellants was extended and sufficient and meaningful opportunity to appellants to contest the application for extension was not provided. Further, there were no specific reasons available to the prosecution for detention of appellants beyond the said period of 90 days and no satisfaction was recorded by the Sessions Judge, for extending the period and detention of accused by 28 days, i.e., beyond the period of 90 days.
Analysis, Law, and Decision
The Court noted that appellants were in judicial custody since the date of their arrest, i.e., 13-02-2024 and 16-02-2024 and a considerable period of 90 days had expired, during which period no substantial progress was made in the investigation. The Court stated that the way in which investigation proceeded revealed the carelessness on the part of the Investigating Officer as to how slow the investigation proceeded with, that too in such a situation where appellants were languishing in judicial custody. The Court also noted that in three months’ time, statements of only 8 official witnesses and 4 public witnesses were recorded and in the first month only 2 public witnesses and 1 official witness were examined.
The Court also took note of the fact that the arms recovered on 13-02-2024 were sent to the FSL only on 01-04-2024 after the inordinate and unexplained delay of 45 days and the articles seized on 16-04-2024 were sent only on 18-05-2024 after the period of 90 days was over.
The Court opined that the right to life and liberty was one of the integral part of the Constitution and it was the most sacred fundamental right and the custody of people in the name of various enactments and without adhering to the promptness of the investigation, could not allow appellant to remain under incarceration.
The Court stated that the proviso to Section 43-D(2)(b) of the UAPA Act was exception to 90 days period, and it could only be resorted to when it was not possible to complete the Investigation within 90 days and this was the discretion of the Court and if it was satisfied with the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for detention of the accused beyond said period of 90 days, it could order to extend the period up to 180 days.
The Court referred to the record of the lower Court and the case diary and stated that it did not notice any promptitude in the investigation, rather the investigation was sluggish and for such a sluggish investigation, appellants could not be made to suffer.
The Court opined that it could not be the intention of the law that the Investigating Officer kept silent and did not proceed with the investigation with promptitude and it was only on the expiry of period of 90 days he suddenly awakes from his slumber to move an application that further time was needed to complete the investigation, as such kind of interpretation which deprived the citizen of this country of his valuable right to life and liberty, could not be made.
The Court held that the impugned orders could not be sustained, and the Sessions Judge erred in passing the impugned orders. The Court allowed the appeal, set aside the impugned orders, and directed that appellants were to be released on bail.
[Mujjamil v. State of Uttarakhand, 2024 SCC OnLine Utt 2575, decided on 28-08-2024]
*Judgment authored by: Justice Pankaj Purohit
Advocates who appeared in this case :
For the Appellants: Nitya Ramakrishnan, Senior Advocate assisted by C.K. Sharma, Nitin Tewari, Vijay Kumar Pandey, Manish Kumar Pandey, Shahid Nadeem, Mujahid Ahmad, Stuti Rai and Ram Yadav, Counsels
For the Respondents: J.S. Virk, Deputy Advocate General with R.K. Joshi, Brief Holder
Buy Penal Code, 1860 HERE
1. Corresponding Section 191(2) of the Nyaya Sanhita, 2023 (‘BNS 2023’)
2. Section 191(3) of the BNS 2023
3. Section 190 of the BNS 2023
4. Section 109 of the BNS 2023
5. Section 121(1) of the BNS 2023
6. Section 132 of the BNS 2023
7. Section 310(2) of the BNS 2023
8. Sections 324(4) and 324(5) of the BNS 2023
