Justices PN Prakash and R Pongiappan found that since the investigating agencies had not acted with due diligence, they were not entitled to seek the benefit of the Supreme Court ruling in Rambeer Shokeen vs. State (NCT of Delhi) either. “In this case, we find that there was absolutely no diligence at all”, the Bench remarked.

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Madras High Court upholds default bail for man accused under UAPA over Facebook post; pulls up State for cavalier approach
“The State had acted in a cavalier manner for extinguishing the statutory right of a prisoner to be released on default bail under Section 167(2) CrPC”, the Court found.
Madras High Court upholds default bail for man accused under UAPA over Facebook post; pulls up State for cavalier approach
Madras High Court
Meera Emmanuel
Published on :
05 Jul, 2021 , 6:21 pm
The Madras High Court recently upheld the decision to grant default bail to a man accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) over a Facebook post, while also criticising the State for its cavalier approach in seeking an extension of remand to defeat his right to default bail (Union of India v. Vivekanandan @ Vivek @ Raja @ Balan).

A Bench of Justices PN Prakash and R Pongiappan found that since the investigating agencies had not acted with due diligence, they were not entitled to seek the benefit of the Supreme Court ruling in Rambeer Shokeen vs. State (NCT of Delhi) either.

“In this case, we find that there was absolutely no diligence at all”, the Bench remarked.

In the Rambeer Shakeen case, the Court had ruled that if a plea for extension of remand is pending, no right for statutory or default bail (bail granted because the investigating agency failed to complete an investigation within time) would accrue in favor of the accused unless such remand extension plea is rejected.

In UAPA cases, the investigating authority is given a 90-day period to complete investigation. The accused is entitled to default bail under Section 167 (2) of the Code of Criminal Procedure if the investigation is not completed within this time. However, the investigating agency can seek a further time to probe the case up to 180 days by seeking remand extension under Section 43D (2) of the UAPA.

In this case, however, the Court pointed out that the police had sought the extension of remand on the 90th day, in relation to which it also filed a defective report that combined two cases filed against the accused.

As such, the remand plea could only be taken up a day later (after the 90-day period), as the court concerned directed the investigating agency to file separate reports for each case. In this backdrop, the High Court opined that the prosecution cannot now rely on the Rambeer Shakeen case to deprive the accused of statutory bail.

“The State should have ensured that Vivek (A.1) was being produced before the Principal District and Sessions Court, Madurai, for remand. Unfortunately, they did not do that. However, the Public Prosecutor had approached the Principal District and Sessions Court, Madurai, with a manifestly defective report under Section 43(D)(2) of the UAP Act by combining two crime numbers. This shows how the State had acted in a cavalier manner for extinguishing the statutory right of a prisoner to be released on default bail under Section 167(2) CrPC,” the Court said.
The High Court has also criticised the approach by the lower courts involved in the matter.

On the one hand, it was noted that the default bail plea moved by the accused was not entertained by a Magistrate on March 17, 2021, citing the transfer of the case to the NIA on March 12.

On the other hand, a Principal Sessions Judge allowed a remand extension application on March 19, ignoring that it was not a Court designated as a Special NIA Court, the High Court noted.

The matter concerned one, Vivek, who was arrested in December last year on UAPA charges and for offence under Section 505(1)(b) (public mischief) of the Indian Penal Code (IPC) for an allegedly offensive Facebook post. Two cases were registered against him in connection with which the State arrested him.

Case background
The cases against Vivek were initially before the Judicial Magistrate No.II, Madurai II, which remanded him from time to time.

The last day of the 90-day period for the investigation fell on March 15, 2021. Three days earlier, on March 12, the case was transferred for investigation to the National Investigating Agency (NIA), which re-registered the case against the accused on March 14 in line with the applicable procedure.

All the same, the Inspector of Police proceeded with the investigation in terms of Section 6(7) (till the NIA takes up the investigation of a case, the police is duty-bound to continue investigation) and Section 10 of the NIA Act.

On March 15, 2021, the Public Prosecutor representing the Thallukulam police moved the Principal Sessions Court, Madurai (trial court under UAPA) seeking an extension of remand under Section 43(D)(2), UAPA.

Notably, the Public Prosecutor filed a common petition for extending the remand period in relation to both cases against Vivek. The Principal District Judge returned the plea on the ground that individual reports should be filed for each case. Pursuant to that, two petitions were filed on March 16 by the State, i.e. a day after the 90-day period for investigation expired.

Meanwhile, Vivek moved a petition for default bail under Section 167 (2), CrPC before the Judicial Magistrate No.II, Madurai on March 17. The Judicial Magistrate returned this petition citing the transfer of the case to the NIA.

On March 19, 2021, the Principal Sessions Court, Madurai allowed the plea by the police to extend the remand period from 90 to 180 days.

On April 8, 2021, the case was transferred from the Judicial Magistrate No.II, Madurai to a Special Court in Poonamallee, Chennai. The remand proceedings were also transferred to this Special Court for bomb blast cases.

On April 20, 2021, the NIA moved the Special Court for police custody over Vivek.

On April 26, 2021, Vivek filed another application under Section 167 (2), CrPC seeking default bail, this time before the Special Court. He pointed out that the 90-day period for investigation had expired on March 15 itself.

Whereas he filed a bail application on March 17, the Judicial Magistrate at Madurai did not pass any orders, again on the ground that the case stood transferred to the NIA, “thereby depriving him of his indefeasible right to be released on bail.”

On May 5, the Special Court passed two orders, one dismissing the NIA’s plea for police custody and another granting Vivek bail.

Both orders were challenged before the Madras High Court, which has now declined to interfere with the Special Court’s findings. Accordingly, the appeal moved by the NIA was dismissed.

Special Public Prosecutor for NIA cases, R Karthikeyan appeared for the NIA (appellant). Advocate R Sankarasubbu appeared for the respondent, Vivek.

[Read Judgment]