Srinagar, July 29, 2021 (PPI-OT): While setting aside Special NIA Court order rejecting bail plea of two persons under Unlawful Activities Prevention Act (UAPA), the High Court of Indian illegally occupied Jammu and Kashmir (IIOJK) has ruled that status of the prosecutor is not a part of the investigating agency as it is an independent statutory authority.

A division bench of Justices Dhiraj Singh Thakur and Vinod Chatterji Koul said this while observing that “request of the Investigating Officer (IO) for extension of time “is not a substitute for report of public prosecutor under the provisions of Section 43D (2)(b) of UAPA,”.

The Court allowed two clubbed appeals against the Composite order dated 25 May 2019 whereby the Special Judge NIA Court, Srinagar (trial court) had rejected the bail pleas of two accused Showkat Ahmad Sofi and Nayeem Ahmad Khan.

Khan and Sofi had challenged the rejection order of the trial court in separate pleas before the High Court through senior advocate Z a Qureshi and advocate Shafqat Nazir. Khan and Sofi had been arrested in connection with case (FIR 85/2018) registered at police station Pantha Chowk, Srinagar under relevant sections of RPC (now replaced by IPC) as also sections of UAPA.

The counsel for the appellants submitted before the court that police agency has to complete investigation of the case within a period of 90 days and after its expiry, the accused has an indefeasible right of being released on bail. “There was no formal request from public prosecutor to extend the period of detention,” they said.

The Trial Court, they contended, extended the detention of appellants beyond the period of 90 days in terms of orders dated 28 February, 7 March, 27 March and 10 April in 2019. They argued that the trial court passed the orders on the applications of the IO and there had been no application, as was required in law, to be filed by public prosecutor under Section 43D (2) (b) of UAPA. “Therefore, appellants are entitled to default bail,” they argued.

On behalf of his appellant, Advocate Shafqat Nazir stated that there was no report of public prosecutor indicating progress of investigation and specific reasons for detention of accused beyond the period of 90 days. “It was incumbent upon Trial Court to release appellants on bail in default of investigation being completed within the statutory period of ninety days”, he argued.

After hearing the parties, the Court while citing UAPA, said: “The provisions of Section 43D (2) (b) envisage that if it is not possible to complete the investigation within a period of ninety days, the Public Prosecutor is required to approach the Court with a report in which he should give the progress of investigation and specific reasons for detention of the accused beyond the period of ninety days. And if the Court is satisfied with the report of the Public Prosecutor, it may extend the period of ninety days up to one hundred and eighty days”.

The bench said that when the present case was examined in the context of provisions of Section 43D (2) (b) of UAPA, the trial court has misdirected itself while passing impugned order”. Citing Supreme Court Judgments, the Court held that the status of the prosecutor is not a part of the investigating agency as it is an independent statutory authority.

The Court said the Supreme Court has laid down the law on the importance of scrutiny by a Public Prosecutor so as not to leave a detent in the hands of IO alone. “Public Prosecutor has an option to agree or disagree with the reasons given by IO for seeking extension of time”, it said.

The Court said the apex court on the issue of grant of default bail has held that on expiry of period of 90 or 60 days, as the case may be, an indefeasible right accrues in favour of accused for being released on bail on account of default by investigating agency in completion of investigation within the period prescribed and accused is entitled to be released on bail.

“In the present case, the Trial Court in effect has not at all dealt with right of appellants to grant of default bail, even when application(s) were filed by them,” the court said, adding it was also not denied that the Charge Sheet has been filed beyond the period of ninety days. “Therefore, in those circumstances, notwithstanding the subsequent filing of charge sheet, appellants could not have been deprived of their right to the benefit of default bail”.

The Court held the appellants entitled to bail in the FIR pending trial in the court of Special Judge NIA here, subject to their furnishing personal bond in the amount of Rs 1, 00,000 each with two sureties each of the like amount to the satisfaction of the Presiding Officer and other conditions.

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