Uttarakhand High Court
Javed Siddiqui And Another … vs State Of Uttarakhand And Another on 8 January, 2025
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
Judgment reserved on:-03.01.2025
Judgment delivered on:-08.01.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 495 of 2024
Javed Siddiqui and another ...Appellants
Versus
State of Uttarakhand and another ......Respondents
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Presence:-
Mr. Prashant Bhusan and Mr. D.S. Patni, learned Senior Advocates assisted by
Mr. Piyush Garg and Mr. Jai Krishan Pandey, Advocate for the appellants.
Mr. J.S. Virk, learned D.A.G with Mr. Rakesh Kumar Joshi, learned B.H. for the
State.
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Coram :Hon'ble Manoj Kumar Tiwari, J.
Hon’ble Pankaj Purohit, J.
Per: Hon’ble Pankaj Purohit, J.
This criminal appeal has been filed under Section 21(4) of
National Investigation Agency Act, 2008 against the orders dated
10.05.2024, 06.06.2024 and 01.07.2024, passed by learned Ist
Additional Sessions Judge, Haldwani, District Nainital in FIR No.21
of 2024, registered at Police Station Banbhoolpura, District Haldwani
under Sections 147, 148, 149, 307, 395, 323, 332, 341, 342, 353, 427,
436, 120-B IPC r/w Sections 3 & 4 of the Prevention of Damage to
Public Property Act, 1984, r/w Section 7 Criminal Law Amendment
Act, 1932, r/w 3/25, 4/25, 7/25 of Arms Act, r/w Section 15 & 16 of
UAPA, whereby the learned trial court has extended the time period of
investigation and detention beyond 90 days and order dated
03.06.2024, whereby the learned trial court has rejected the bail
application filed by the appellants for release on default bail.
2. Facts of the case giving rise to the present proceedings are
that an FIR No.21 of 2024 dated 08.02.2024 was lodged in Police
Station Banbhoolpura, District Nainital. As per the aforesaid FIR, on
08.02.2024 officials from Nagar Nigam, Tehsil and Police went to a
place in Banbhoolpura locality to demolish two structures allegedly
encroachments on public land – one Madarsa and one Mosque, which
was already sealed and fenced. When officials reached the spot they
faced resistance from the local public, who formed a mob and started
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pelting stones at the officials and petrol bombs were also thrown in the
process. During this process Police officials also rushed to the Police
Station Banbhoolpura after receiving of reports that some persons
attempted to set the police station on fire; petrol bombs were thrown on
the Police vehicle and the service pistols and cartridges of Police
officials S.O. Mukhani were also snatched. The appellants were arrested
during investigation.
3. Under the provisions of CrPC under Section 167(2)(a)(i)
the maximum period of detention of under trial is 90 days. According to
the provisions of Section 167 CrPC if the investigation of a case as given
in the provision of Section 167(2)(a)(i) is not completed within 90 days,
the accused persons shall be entitled to get default bail under the said
provisions of CrPC. The period of 90 days was going to expire on
10.05.2024. In respect of the appellants, the offences under Section
15/16 of The Unlawful Activities (Prevention) Act, 1967 (hereinafter
referred to as “U.A.P.A. Act, 1967”) were already there. By virtue of the
provisions of the U.A.P.A. Act, 1967, the provisions of Section 43D are
invoked, 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 43D(2)(b).
4. After invoking the provisions of the U.A.P.A. Act, 1967 an
application is moved by the prosecution in the court of learned Ist
Additional Sessions Judge, Haldwani on 10.05.2024 FIR No.21 of 2024
explaining therein the progress of investigation so far. It is also
contended in the said application that further investigation is yet to be
concluded.
5. On the application dated 10.05.2024 submitted by the
Police under Section 43D(2)(b) of the U.A.P.A. Act, 1967 a report was
submitted by the A.D.G.C. District Nainital to the learned Ist Additional
Sessions Judge, Haldwani.
6. The learned Ist Additional Sessions Judge, Haldwani after
hearing both the parties allowed the application for extension of period
of investigation and detention for a further period of 28 days in FIR
No.21 of 2024 Police Station Banbhoolpura vide order dated 10.05.2024
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invoking the provisions of Section 43D(2)(b) of the U.A.P.A. Act.
7. Since the period of completion of investigation and
detention was extended beyond 90 days by learned Ist Additional
Sessions Judge, Haldwani, default bail application moved by the
appellants stands rejected vide impugned order dated 03.06.2024.
Feeling aggrieved by aforesaid impugned orders the appellants have
preferred the present appeal.
8. The main ground of challenge of the impugned orders by
the appellants is that the appellants were not heard by learned Ist
Additional Sessions Judge, Haldwani before passing the impugned order
dated 10.05.2024 whereby the period of investigation and detention of
the appellants was extended and sufficient and meaningful opportunity
to the appellants to contest the application for extension was not
provided; the appellants were not put to notice of the extension
application and were not given opportunity to file an objection; there
were no specific reasons available to the prosecution for detention of the
accused beyond the said period of 90 days and no satisfaction was
recorded by the learned Ist Additional Sessions Judge, Haldwani for
extending the period and detention of accused by 28 days i.e., beyond
the period of 90 days as envisaged under the provisions of 43D of the
U.A.P.A. Act, 1967.
9. Heard learned counsel for the parties.
10. It is contended by learned Senior Advocate appearing for
the appellants that a right of liberty of citizen which flows from Article
21 of the Constitution of India cannot be allowed to be curtailed, the
manner the same has been done in this case.
11. It is submitted by learned Senior Advocate for the
appellants that looking into the entire investigation conducted by the
Investigating Agency for a period of 90 days, it transpires that sufficient
time has been taken by the Investigating Officer but progress of the
investigation is not such which could be termed as the investigation with
“the utmost promptitude” “without unnecessary, deliberate or avoidable
delay.”
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12. It is argued by learned Senior Advocate that it is shocking
that identification of the culprits was sought to be done in extended time.
Thus, the previous detention of the accused/appellants was unwarranted
and thus to continue their detention at the sweet will of the Police cannot
be permitted.
13. It is also submitted by learned Senior Advocate for the
appellants that the remand of 90 days is a rule and to get the period of
detention beyond 90 days upto 180 days is an exception, the extension
can only be done on “specific reasons”.
14. Learned Senior Advocate for the appellants relied upon the
judgment of Hon’ble Apex Court in the case of Jigar @ Jimmy
Pravinchandra Adatiya Vs. State of Gujarat reported in (2023) 6 SCC
484 to submit that mandatory notice and mandatory presence of the
accused is there in the Court while the application of extension is
considered by the Court. He submitted that non-production of accused
on the date on which the Special Court consider the request for grant of
extension of time and failure of the Special Court to procure the presence
of the accused at the time of consideration of the reports submitted by
Public Prosecutor for grant of extension of time to complete the
investigation and failure to give notice to the accused on the report
submitted by the Public Prosecutor are in violation of the mandate of law
laid down by the Constitution Bench of the Hon’ble Supreme Court in
the case of Sanjay Dutt Vs. State reported in (1994) 5 SCC 410.
15. Learned Senior Advocate for the appellants further relied
upon the judgments of Hon’ble Apex Court in the case of Uday
Mohanlal Acharya vs. State of Maharstra; reported in (2001) 5 SCC 453
and Hitendra Vishnu Thakur vs. State of Maharashtra; reported in (1994)
4 SCC 602.
16. Learned Senior Advocate also contended that to get a
default bail under Sub-section 2 of Section 167 of CrPC is not merely a
statutory right but a fundamental right guaranteed to an accused and the
same cannot be trifled with.
17. He further pointed out with eloquence relying upon para
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no.13 of the Jigar @ Jimmy Pravinchandra Adatiya (supra) case to
submit that it has been held by the Hon’ble Apex Court in the case of M.
Ravindran Vs. Directorate of Revenue Intelligence reported in (2021) 2
SCC 485 that Sub-section 2 of Section 167 CrPC is integrally linked to
the constitutional commitment under Article 21 of the Constitution of
India promising protection of life and personal liberty against unlawful
and arbitrary detention, therefore the provision of Sub-section 2 of
Section 167 of CrPC should be interpreted in such a manner that serves
this object.
18. It is further submitted by learned Senior Advocate
appearing for the appellants that since the period of investigation was
extended by the learned Ist Additional Sessions Judge in violation of the
law laid down by the Constitution Bench in Sanjay Dutt‘s case (supra),
therefore the said order is completely illegal as it infringes the right of
appellants to get default bail which is held to be a fundamental right
guaranteed by Article 21 of the Constitution of India.
19. Per contra, learned Deputy Advocate General supported the
impugned orders passed by learned Ist Additional Sessions Judge,
Haldwani. He strenuously submitted that the application moved by
Investigating Officer and the report of the public prosecutor both
contained the reasons for extension of the period of investigation and
detention.
20. Learned Deputy Advocate General submitted that the report
is exhaustive which contained the progress of the investigation during 90
days and what has now been left to be investigated and therefore both
the applications as well as the report of the Public Prosecutor is within
the conformity of the requirements for extension of the period of
investigation and detention. On this ground, it is submitted that there is
no illegality committed by learned Ist Additional Sessions Judge while
passing the impugned orders. He further relied upon the judgment of
Hon’ble Supreme Court in the case of State of Maharashtra Vs.
Surendra Pundlik Gadling and others reported in AIR (2019) SC 975 and
State of NCT of Delhi vs. Raj Kumar @ Lovepreet @ Lovely, 2024 1
SCC (Cri) 808.
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21. Para nos.15, 35 and 38 of the State of Maharashtra Vs.
Surendra Pundlik Gadling judgment have been pressed to support his
submissions.
22. It is submitted by learned Deputy Advocate General for the
State that the investigation could not have been completed within 90
days, thus a report is submitted by the Public Prosecutor wherein the
progress of investigation and specific reasons for extension of period
beyond 90 days have been given; satisfaction of the Court is there on
record and nothing else was needed to justify the impugned orders
passed by learned Ist Additional Sessions Judge, Haldwani.
23. It is submitted by learned State counsel that when the
ingredients of Section 43D(2)(b) of the U.A.P.A. Act, 1967 are fulfilled,
no fault can be found with the impugned orders passed by learned Ist
learned Additional Sessions Judge, Haldwani.
24. Having heard learned counsel for the parties in great detail
and having gone through the record of the case, in particular the Lower
Court Record, it is noticed that the appellants are in judicial custody
since the date of their arrest and a considerable period of 90 days has
expired, during which period it is noticed that no substantial progress has
been made in the investigation.
25. The manner in which investigation proceeded clearly
reveals the carelessness on the part of the Investigating Officer as to how
slow the investigation proceeded with, that too in such a situation where
the appellants were languishing in judicial custody.
26. In three months time statements of only 8 official witnesses
and four public witnesses were recorded. The height of sluggish
investigation is that in the first month only two public witnesses and one
official witness were examined.
27. The manner in which the investigation proceeded also
speaks volumes when we see that the arms recovered on 13.02.2024
were sent to the FSL only on 01.04.2024 after inordinate and
unexplained delay of 45 days and further the articles seized on
16.04.2024 were sent only on 18.05.2024 after the period of 90 days was
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over. Moreover the reason which has been cited by the Investigating
Officer does not impress us that for the investigation yet to be completed
the custody of appellant was at all required. It is quite surprising that one
of the reasons cited for investigation is shown as “the prosecution
sanctioned awaited.”
28. The right to life and liberty is one of the integral part of the
Constitution of India and it is the most sacred Fundamental Right. The
custody of people in the name of various enactments and without
adhering to the promptness of the investigation, it (the enactments)
cannot allow the appellants to remain under incarceration.
29. In order to appreciate the submissions made by learned
Senior Advocate appearing for the appellants that special reasons needed
to be recorded, provisions of Section 43D(2)(b) of the U.A.P.A. Act,
1967 are quoted herein below:-
“43D. Modified application of certain provisions of the
Code.–(1)………………….
(2)………………….
(b) after the proviso, the following provisos shall be inserted,
namely:–
“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: Provided also that if the police
officer making the investigation under this Act, requests, for
the purposes of investigation, for police custody from judicial
custody of any person in judicial custody, he shall file an
affidavit stating the reasons for doing so and shall also explain
the delay, if any, for requesting such police custody.”
30. The proviso to Section 43D(2)(b) of the U.A.P.A. Act, 1967
is exception to 90 days period and it can only be resorted to when it is
not possible to complete the investigation within the period of 90 days.
This is discretion of the Court and if the Court is 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 can order to extend the period up to 180 days.
31. As stated earlier from perusal of the Lower Court Record
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and the case diary, we did not notice promptitude in the investigation
rather the investigation was sluggish and for such a sluggish
investigation the appellants cannot be made to suffer.
32. So far as the argument advanced by learned Deputy
Advocate General for the State is concerned, we have given a thoughtful
consideration to the submissions made by him and have perused the case
laws cited by him. We found that though the ingredients may be
available for the invocation of provision of Section 43D(2)(b), but in
order to appreciate the said provision in true sense, indepth look is
required to find out as to how the investigation proceeded within a
period of 90 days. It cannot be the intention of the law that the
Investigating Officer kept silent and did not proceed with the
investigation with promptitude and it is only on the expiry of period of
90 days he suddenly awakes from his slumber to move an application
that further time is needed to complete the investigation. Such kind of
interpretation which deprives citizen of this country of his valuable right
to life and liberty, cannot be made.
33. In the case of Pundlik (supra) relied upon by learned State
counsel, it was found that the accused were active members of a banned
organization i.e, CPI (Maoist) and were having direct nexus of unlawful
activities of said organization. But here in the case in hand, so far it has
not been turned out in investigation that the appellants are member of
any banned or unlawful organization.
34. Thus, from the upshot of the aforesaid discussion, there is
no manner of doubt in our mind that the impugned orders cannot sustain.
The learned Ist Additional Sessions Judge erred in passing the impugned
orders.
35. Accordingly, the appeal is allowed. Orders dated
10.05.2024, 06.06.2024 and 01.07.2024, passed by learned Ist Additional
Sessions Judge, Haldwani, District Nainital in FIR No.21 of 2024 are
accordingly, set-aside qua the appellants. Both the appellants herein are
directed to be released on bail on each of them executing personal bond
and furnishing two reliable sureties, by each one of them, each of the
like amount to the satisfaction of the Court concerned.
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36. Pending application, if any, stands disposed of accordingly.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
08.01.2025
AK
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