Supreme Court Upholds Extension of Detention in UAPA Case: State of Maharashtra vs. Surendra Gadling (2019)

Introduction

Date of the Judgment: 13 February 2019

Citation: (2019) INSC 124

Judges: Ranjan Gogoi, CJI, L. Nageswara Rao, J., Sanjay Kishan Kaul, J.

Can the detention of an accused be extended beyond 90 days under the Unlawful Activities (Prevention) Act, 1967 (UAPA) based on a report from the Public Prosecutor that is essentially an application by the Investigating Officer? The Supreme Court of India addressed this question in a recent case, focusing on the procedural requirements for extending detention under UAPA. The court examined whether the Public Prosecutor had independently applied their mind before submitting the report for extending the detention period.

Case Background

On 8th January 2018, an FIR was lodged by Tushar Ramesh Damgude at Vishrambaug Police Station, Pune, concerning an incident that occurred at Shaniwarwada, Pune on 31st December 2017. The FIR alleged that members of the ‘Kabir Kala Manch’ organized a meeting called ‘Elgar Parishad’ under the banner ‘Bhima Koregaon Shouryadin Prerna Abhiyan’. It was alleged that active members of CPI (Maoist) raised inflammatory slogans and engaged in activities to incite terrorist acts and promote enmity between groups, leading to violent riots on 1st January 2018, at Bhima Koregaon.

During the investigation, the police claimed that the accused were active members of the banned organization, CPI (Maoist), and that the event on 31st December 2017, was organized under their guidance through a frontal organization called ‘Kabir Kala Manch’. Search and seizure operations led to the discovery of Naxalite literature, pamphlets, letters, and electronic devices in the possession of the accused. Some of the accused were also alleged to be financiers of the illegal activity. It was further alleged that students from an educational institution were taken to a forest area to meet underground Naxalites for indoctrination and training.

The police alleged that the entire endeavor was an attempt to incite minority groups against the Union of India and the State of Maharashtra, aimed at disrupting public order and threatening the nation’s sovereignty and integrity. Consequently, charges under Section 120B of the Indian Penal Code, 1860, along with Sections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of the UAPA were added to the charges.

After initial police custody, the judicial custody of the respondents was sought for 90 days for completion of the investigation, which ended on 3rd September 2018. An extension of custody for another 90 days was sought under the proviso to Section 43D(2)(b) of the UAPA.

Timeline:

Course of Proceedings

The Special Judge and Additional Sessions Judge extended the investigation period to 180 days on 2nd September 2018, after perusing the case diary and noting the collection of voluminous electronic data and the involvement of the respondents. The Bombay High Court, however, in its order dated 24th October 2018, favored the respondents’ plea, stating that the Public Prosecutor had not applied his mind to the application for extension, thus not meeting the mandatory requirements of Section 43D(2)(b) of the UAPA. The State of Maharashtra then appealed to the Supreme Court, which stayed the High Court’s order on 29th October 2018.

Legal Framework

The core legal provision at the heart of this case is Section 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967. This section modifies the application of Section 167 of the Code of Criminal Procedure, 1973, in cases involving offenses under the UAPA. Specifically, it states:

“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:”

This provision allows for the extension of the detention period beyond 90 days, up to a maximum of 180 days, provided that the court is satisfied with a report from the Public Prosecutor. This report must indicate the progress of the investigation and specify reasons for the continued detention of the accused.

Arguments

The arguments presented before the Supreme Court centered on whether the application for extension of detention met the requirements of Section 43D(2)(b) of the UAPA.

Arguments on behalf of the State of Maharashtra:

• Sub-argument 1: The State argued that the respondents’ refusal to make submissions before the trial court should have barred them from filing a writ petition.
  

  The State contended that the trial court’s order sheet showed that the respondents and their counsel refused to make submissions, and therefore, the High Court should not have entertained their writ petition.

• Sub-argument 2: The State contended that the second document submitted on 30.08.2018 was indeed a report of the Public Prosecutor.
  

  The State argued that although the document was titled as an “application” under Section 43D of the UAPA, it was in substance a report of the Public Prosecutor. The State argued that the Public Prosecutor had applied her mind and that was evident from the fact that the second document contained changes from the earlier application submitted by the Investigating Officer (IO). The State contended that the Public Prosecutor’s signature on the document indicated her endorsement of the contents.

• Sub-argument 3: The State argued that the reasons for seeking extension of time were valid.
  

  The State argued that the detailed grounds provided in the application/report, such as the need to analyze electronic data, investigate funding, and trace connections between the accused, were sufficient reasons for seeking an extension of the investigation period.

• Sub-argument 4: The State argued that the matter should be looked at from the perspective of substance rather than form.
  

  The State argued that due to the limited time available, the application was moved urgently, and the court should consider the substance of the report rather than technicalities.

Arguments on behalf of the Respondents:

• Sub-argument 1: The respondents argued that they were not given sufficient opportunity to present their case before the trial court.
  

  The respondents argued that the matter was listed on the very next day after the application was submitted before the Special Court, and they were not given sufficient time to prepare their case. They also stated that their lawyers were not initially available because it was a Saturday.

• Sub-argument 2: The respondents argued that the document submitted was not a valid report by the Public Prosecutor.
  

  The respondents argued that the document submitted was essentially an application by the IO and the Public Prosecutor had merely endorsed it by signing it. They contended that the Public Prosecutor had not independently applied her mind to the matter.

• Sub-argument 3: The respondents argued that the trial court also treated the document as an application by the IO.
  

  The respondents pointed to the order passed by the trial court, which they claimed indicated that the court also treated the document as an application by the IO.

• Sub-argument 4: The respondents argued that the reasons provided by the IO for an extension in the period of investigation did not appear to be genuine.
  

  The respondents argued that the reasons provided by the IO for seeking an extension were not valid and that there were no “compelling reasons” disclosed for extension of time beyond 180 days.

The respondents relied heavily on the judgment in Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors. [(1994) 4 SCC 602], arguing that the Public Prosecutor’s report must demonstrate an independent application of mind and not merely be a reproduction of the IO’s application. They also cited Sanjay Kumar Kedia alias Sanjay Kedia v. Intelligence Officer, Narcotics Control Bureau & Anr. [(2009) 17 SCC 631], to argue that “compelling reasons” are required for extension of time beyond 180 days.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether the application presented on 30.8.2018, under the proviso to Section 43D(2)(b) of the said Act, conforms to the norms laid down by that provision, as enunciated in the judgments of this Court.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases

Legal Provisions

Judgment

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Substance over Form: The Court emphasized that the key issue was whether the Public Prosecutor had applied their mind to the matter, rather than the specific form of the document.
• Application of Mind: The Court noted that the Public Prosecutor had scrutinized the initial application of the IO and provided additional grounds for extension in the second document, thus demonstrating an application of mind.
• Detailed Grounds: The Court found that the detailed grounds provided in the application/report, such as the need to analyze electronic data, investigate funding, and trace connections between the accused, were sufficient reasons for seeking an extension of the investigation period.
• Distinction from Precedents: The Court distinguished the facts of the present case from those in Hitendra Vishnu Thakur, where the Public Prosecutor had merely identified the IO’s affidavit.

The Supreme Court, while acknowledging the procedural lapses in the application, emphasized that the Public Prosecutor had indeed applied her mind to the matter. The Court noted that the second document, though titled as an application, contained additional grounds for extension, which were not a mere reproduction of the IO’s application. The Court also highlighted the fact that the Public Prosecutor had signed the document, indicating her endorsement of the contents.

The court stated that “There is merit in the contention of the learned senior counsel for the appellant/State that the question is more of substance than form, an aspect even emphasised in Hitendra Vishnu Thakur case, which has been relied upon by learned counsel for both the parties.”

The Court also observed that, “Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, 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 should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.”

The Court further clarified that, “The detailed grounds certainly fall within the category of “compelling reasons” as enunciated in Sanjay Kedia case.”

The Court did not find any alternative interpretations that would warrant a different conclusion. The Court held that the respondents were not entitled to default bail.

The majority opinion was delivered by Justice Sanjay Kishan Kaul, with Chief Justice Ranjan Gogoi and Justice L. Nageswara Rao concurring.

Key Takeaways

• Substance Over Form: The Supreme Court emphasized that in matters of extending detention under UAPA, the substance of the Public Prosecutor’s report is more important than its form.
• Independent Application of Mind: The Public Prosecutor must demonstrate an independent application of mind to the matter, rather than merely endorsing the IO’s application.
• Detailed Reasons: The report must contain detailed reasons for the extension of detention, including the progress of the investigation and specific reasons for continued detention.
• “Compelling Reasons”: The reasons provided for extension must be compelling, particularly for extensions beyond 180 days.
• Right to Seek Regular Bail: The Court clarified that its decision would not affect the right of the respondents to seek regular bail from the trial court, which would be decided on its own merits.

Directions

The Supreme Court set aside the impugned order of the Bombay High Court, holding that the respondents were not entitled to default bail. The Court clarified that the respondents were free to seek regular bail from the trial court, which would be decided on its own merits.

Development of Law

The ratio decidendi of this case is that while the form of the Public Prosecutor’s report is important, the key factor is whether the Public Prosecutor has independently applied their mind to the matter and provided detailed reasons for the extension of detention. This judgment reinforces the principle that the Public Prosecutor is not a mere forwarding agency of the IO, but an independent authority who must scrutinize the investigation and provide their own assessment. This case clarifies the application of the principles laid down in Hitendra Vishnu Thakur in the context of UAPA.

Conclusion

The Supreme Court allowed the appeal of the State of Maharashtra, setting aside the Bombay High Court’s order. The Court held that the Public Prosecutor had applied his mind to the matter and the application for extension of detention was valid, despite some procedural irregularities. The Court emphasized that the substance of the report was more important than its form. This judgment clarifies the requirements for extending detention under Section 43D(2)(b) of the UAPA and underscores the importance of the Public Prosecutor’s independent assessment.