Madras HC rebukes state for denying default bail to man accused under UAPA over Facebook post

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Read Judgement: Union of India represented by the Inspector of Police v. Vivekanandan @ Vivek @ Raja @ Balan @Anandan @ Rajamouli 

LE Staff

Chennai, July 6, 2021: The Madras High Court has upheld the decision to grant default bail to a man accused under the UAPA over a Facebook post. The High Court also criticised the state for its cavalier approach in seeking extension of remand to defeat the accused’s right to default bail.

The accused, Vivek, was arrested on UAPA charges and for offence under section 505(1)(b) of IPC for an allegedly offensive Facebook post. His case was initially before the Judicial Magistrate Madurai II. 

In UAPA cases, the investigating authority is given a 90-day period to complete investigation. Later, the accused is entitled to default bail under section 167 (2) of the CrPC 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 u/s 43D (2) of the UAPA.

In the present case, although 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) and Section 10 of the NIA Act. Later, on March 15, 2021, the Public Prosecutor representing the Thallukulam police moved the Principal Sessions Court, Madurai seeking an extension of remand u/s 43(D)(2), UAPA, which came to be returned. Pursuant thereto, two petitions were filed by the State 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 Madurai, which was returned citing the transfer of the case to the NIA. Consequently, 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. Later, on April 20, 2021, the NIA moved the Special Court for police custody over Vivek.

Owing to this, Vivek filed another application u/s 167(2), CrPC seeking default bail before the Special Court, pointing out that the 90-day period for investigation had expired on March 15 itself. The Judicial Magistrate, however, refused to pass any order on the ground that the case stood transferred to the NIA. 

At the Madras High Court, a Division Bench of Justice PN Prakash and Justice R Pongiappan said, “The State should have ensured that although the accused 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 u/s 43(D)(2) of the UAPA by combining two crime numbers”.

Criticizing the approach of the lower courts, the High Court 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).

On the one hand, it was noted that the default bail plea moved by the accused was not entertained by a Magistrate, citing the transfer of the case to the NIA. 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 HC observed. 

Thus, the High Court upheld the default bail. 

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