A division bench of the High Court of Judicature at Madras in a common order for Crl.A.No. 393 of 2022 (T. Keeniston and Fernando K.Bhaskaran v. State by the deputy Superintendent of Police and UOI) and Crl.A.No. 479 of 2022 (K. Bhaskaran v. UOI) held that it is not mandatory to provide a copy of the remand extension application or application for police custody of investigation agency under proviso to Section 43D(2) of the Unlawful Assembly (Prevention) Act,1967 (hereinafter referred to as “UAPA”).
Facts of the Case
One deceased Hamida had a bank account with money to the tune of approximately Rs. 40 Crores which came under the notice of The Liberation Tigers of Tamil Eelam (“LTTE”), a proscribed terrorist organization under UAPA.
The members of LTTE planned to siphon off the money according to which one of the accused was monitoring the said account from Europe, another managed to obtain documents like Aadhar, PAN, Passport etc. Similarly, there were others who together managed to play some part to withdraw the said money. Fake Power of Attorneys were also created to withdraw money from Hamida’s account. However, before the plan could be successful, one accused named Mary was intercepted at the Chennai airport and was handed over to the State police following which a case was registered and preliminary enquiry by the State police commenced. As per Section 167 of the Code of Criminal Procedure,1898, the 90 days remand period was to be expired on 31.12.2021. Consequently, a report was filed under first proviso to 43D(2) of UAPA to extend remand period as it was anticipated that investigation cannot be completed within 90 days. An extension of 90 days was granted by the Court.
Meanwhile, considering the seriousness of the case, the Government of India passed an order for transferring the investigation of the case to NIA (National Investigation Agency). This agency filed FIR before the Special Court for NIA cases on 19.01.2022. and a final report was filed by it on 29.03.2022.
Pursuant to this, the present Appeal was filed to challenge the order passed for extending the remand period by 90 days.
Contention of the Appellants ;
The Appellants contended that the order of extending remand period was passed without hearing the accused which is mandatory and that no report in terms of proviso to section 43D (2) was filed by the Special Public Prosecutor. It was also contended that the copy of the report should have been served to the Accused.
Observation of the Court and Judgement ;
The Court observed that the Report was filed by the Special Public Prosecutor as per proviso to Section 43D (2). It also noted that it is not required by law to serve a copy of the remand extension application or application for police custody of investigation agency. The thought behind this is that when request for extension of remand period under 167, Code of Criminal Procedure,1898 along with proviso to section 43D (2) of the UAPA is filed, reasons must be given and, in this process, certain investigation details are disclosed which can include names of suspects that are yet to be examined by the agency. In case copy is supplied to the accused and names of suspects are disclosed to him, there are high chances of escape and evade by those suspects.
In the present case, the Court finally concluded that the indefeasible right to bail has not accrued in favor of the accused, however even if assumed that it had accrued, the right is extinguished as final report was filed on 29.03.2022 and filing for default bail was done on 04.04.2022, as a result the final report was filed prior to the default bail application.
Hence, both the appeals were dismissed.
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(With input from news agency language)
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