Supreme Court of India
THE STATE OF WEST BENGALversusJAYEETA DAS
- Citation
- 2024 INSC 313
- Decided
- 18 April 2024
- Disposal
- Appeal(s) allowed
Holding
In the absence of a Special Court designated under Section 22 of the NIA Act, the Sessions Court has jurisdiction to add and try UAPA offences, but the magistrate’s extension of remand beyond 90 days is illegal.
Summary
The State of West Bengal appealed against a Calcutta High Court order that quashed the addition of Unlawful Activities (Prevention) Act (UAPA) offences to an IPC case and set aside extensions of remand. The investigation, conducted by the State police, led the Chief Judge of the City Sessions Court to permit inclusion of UAPA sections 16, 18, 18B, 20, 38 and 39 and to allow remand up to 180 days. The High Court held that only a Special Court constituted under the National Investigation Agency (NIA) Act could try UAPA offences and that the magistrate could not extend remand beyond 90 days. The Supreme Court examined Section 22 of the NIA Act and found that, until a Special Court is designated, the Sessions Court of the division exercises the same jurisdiction and powers, making the addition of UAPA charges valid. However, it held that the Chief Metropolitan Magistrate’s extension of remand beyond 90 days violated the proviso to Section 43D of UAPA. Consequently, the Supreme Court set aside the High Court judgment and allowed the appeal, restoring the Sessions Court’s jurisdiction while declaring the extended remand illegal.
Issues considered
- Whether a Sessions Court can entertain an application to add UAPA offences and exercise jurisdiction in the absence of a Special Court designated under Section 22 of the NIA Act.
- Whether the Chief Metropolitan Magistrate could lawfully extend the remand of the accused beyond 90 days after UAPA offences were added.
- Whether the High Court was correct in holding that only a Special Court has exclusive jurisdiction to try UAPA offences.
Legislation cited
- Code of Criminal Procedure, 1973s. 167(2), s. 482
- National Investigation Agency Act, 2008s. 11, s. 22(1), s. 22(3)
- Unlawful Activities (Prevention) Act, 1967s. 16, s. 18, s. 18B, s. 20, s. 2(1)(d), s. 38, s. 39, s. 43D(2)
Subjects
OffencesAddition of offencesJurisdictionRemandExtension of remand
Judgment
[2024] 4 S.C.R. 640 : 2024 INSC 313
The State of West Bengal
v.
Jayeeta Das
(Criminal Appeal No. 2128 of 2024)
18 April 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
Whether the order dated 07.04.2022, whereby the Chief Judge
cum City Sessions Court permitted the addition of the offences
under Unlawful Activities (Prevention) Act, 1967 to the case suffer
from any illegality or infirmity; whether the extension of remand by
the Chief Metropolitan Magistrate beyond the period of 90 days
was illegal.
Headnotes
Unlawful Activities (Prevention) Act, 1967 – National
Investigation Agency Act, 2008 – FIR registered u/ss. 121A,
122, 123, 124A, 120B of IPC – I.O. filed an application for
addition of charges u/ss. 16, 18, 18B, 20, 38 and 39 of UAPA
– CMM forwarded the matter to Chief Judge, City Sessions
Court – The Chief Judge by order dated 07.04.2022 permitted
addition of offences under the provisions of UAPA – Legality:
Held: A bare perusal of sub-section (3) of Section 22 of NIA Act
would make it clear that until a Special Court is constituted by
the State Government under sub-Section (1) of Section 22, in
case of registration of any offence punishable under UAPA, the
Court of Sessions of the division, in which the offence has been
committed, would have the jurisdiction as conferred by the Act
on a Special Court and a fortiori, it would have all the powers
to follow the procedure provided under Chapter IV of the NIA
Act – Admittedly, the present case involves investigation by the
State police, and therefore, the provisions of Section 22 would be
applicable insofar as the issue of jurisdiction of the Court to try the
offences is concerned – Further, it is not in dispute that the State
of West Bengal had not exercised the power conferred upon it by
Section 22 of the NIA Act for constituting a Special Court for trial
of offences set out in the Schedule to the NIA Act and hence, the
Sessions Court within whose jurisdiction, the offence took place
* Author
[2024] 4 S.C.R. 641
The State of West Bengal v. Jayeeta Das
which would be the Chief Judge cum City Sessions Court in the
case at hand, had the power and jurisdiction to deal with the case
by virtue of the sub-section (3) of Section 22 of the NIA Act –
Hence, the order dated 07.04.2022, whereby the Chief Judge cum
City Sessions Court permitted the addition of the offences under
UAPA to the case does not suffer from any illegality or infirmity.
[Paras 24, 25, 29, 30]
Unlawful Activities (Prevention) Act, 1967 – Extension of
remand by Chief Metropolitan Magistrate beyond the period
of 90 days – Legality:
Held: Under the proviso to Section 43D(2), the Court has been
given the power to extend and authorise detention of the accused
beyond a period of 90 days as provided u/s. 167(2) CrPC – A plain
reading of Section 2(1)(d) of UAPA would clearly indicate that the
same admits to the jurisdiction of a normal criminal Court and also
includes a Special Court constituted under Section 11 or Section
22 of the NIA Act –In view of the definition of the ‘Court’ provided
under Section 2(1)(d) of UAPA, the jurisdictional Magistrate would
also be clothed with the jurisdiction to deal with the remand of the
accused albeit for a period of 90 days only because an express
order of the Sessions Court or the Special Court, as the case may
be, authorising remand beyond such period would be required
by virtue of Section 43D(2) of UAPA – Hence, to the extent the
Chief Metropolitan Magistrate extended the remand of the accused
beyond the period of 90 days, the proceedings were grossly illegal.
[Paras 33-36]
List of Acts
Unlawful Activities (Prevention) Act, 1967; National Investigation
Agency Act, 2008; Code of Criminal Procedure, 1973.
List of Keywords
Offences; Addition of offences; Jurisdiction; Remand; Extension
of remand.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2128
of 2024
From the Judgment and Order dated 11.05.2023 of the High Court at
Calcutta in CRR No. 3180 of 2022
642 [2024] 4 S.C.R.
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Appearances for Parties
Siddhartha Dave, Sr. Adv., Kunal Chatterji, Ms. Maitrayee Banerjee,
Rohit Bansal, Ms. Kshitij Singh, Sohhom Sau, Advs. for the Appellant.
R. Mahadevan, V. Balaji, C. Kannan, Nishant Sharma, Ms. Adviteeya,
Rakesh K. Sharma, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1. Leave granted.
2. Heard learned counsel for the parties and perused the material
available on record.
3. The State of West Bengal has approached this Court by way of this
appeal for assailing the legality and validity of the judgment dated
11th May, 2023 passed by the High Court of Calcutta in C.R.R. No.
3180 of 2022.
Brief Facts:-
4. Based on written complaint dated 1st January, 2022 filed by the SI
Raju Debnath, STF Police Station, Kolkata on 28th December, 2021
informing about recovery of an unclaimed black coloured bagpack
lying abandoned at Sahid Minar containing some written posters of
CPI(Maoist) and some incriminating articles about the activities of
CPI(Maoist), FIR No. 01 of 2022 came to be registered at STF Police
Station, Kolkata for the offences punishable under Sections 121A,
122, 123, 124A, 120B of the Indian Penal Code, 1860(hereinafter
being referred to as ‘IPC’).
5. The respondent herein was apprehended on 29th March, 2022 and
was produced before the learned Chief Metropolitan Magistrate,
Calcutta on 30th March, 2022. The Investigating Officer conducted
preliminary investigation and thereafter filed an application in the
Court of learned Chief Metropolitan Magistrate praying for addition
of offences punishable under Sections 16, 18, 18B, 20, 38 and 39
of the Unlawful Activities (Prevention) Act, 1967 (hereinafter being
referred to as ‘UAPA’).
[2024] 4 S.C.R. 643
The State of West Bengal v. Jayeeta Das
6. Learned Chief Metropolitan Magistrate, in turn, forwarded the matter to
learned Chief Judge, City Sessions Court, Calcutta(hereinafter being
referred to as the ‘Chief Judge’) for considering the said application,
vide order dated 5th April, 2022.
7. Learned Chief Judge, vide order dated 7th April, 2022 permitted
addition of offences under Sections 16, 18, 18B, 20, 38, 39 of
UAPA in the case and allowed the same to be investigated along
with the existing offences for which the FIR had been registered.
The Investigating Officer was directed to take the necessary steps
before the learned Chief Metropolitan Magistrate.
8. The respondent filed a petition under Section 482 of the Code of
Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’)
before the High Court of Calcutta on 25th August, 2022 with a prayer
to quash the order dated 7th April, 2022 passed by learned Chief
Judge, Calcutta and all subsequent orders passed by the learned
Chief Metropolitan Magistrate, Calcutta. While the aforesaid petition
was pending, the learned Chief Judge, Calcutta passed an order dated
22nd September, 2022 extending the period of detention of accused
upto 180 days under Section 43D(2)(b) of UAPA and permitted the
investigating agency to file charge sheet beyond the period of 90
days but within 180 days.
9. The High Court proceeded to accept the petition vide order dated
11th May, 2023 and quashed the proceedings of the case registered
against the respondent to the extent of the offences punishable
under the provisions of UAPA, holding that only a Special Court
constituted by the Central Government or the State Government
as per the National Investigation Agency Act, 2008(hereinafter
being referred to as ‘NIA Act’) had the exclusive jurisdiction to try
the offences under UAPA. It was further held that as per Section
16 of the NIA Act, the Sessions Court was precluded from taking
cognizance of the offences under UAPA and thus the order dated
7th April, 2022 and all subsequent proceedings taken thereunder
were without jurisdiction.
10. The aforesaid order dated 11th May, 2023 allowing the petition filed
by the respondent is under challenge at the instance of the State
of West Bengal in this appeal by special leave.
644 [2024] 4 S.C.R.
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Submissions on behalf of appellant:-
11. Shri Siddhartha Dave, learned senior counsel appearing for the
appellant contended that the instant case involves investigation and
prosecution by the state police and not by the Central Agency, i.e.,
National Investigation Agency. He urged that the proceedings would
be governed by Section 22 of NIA Act and hence the High Court fell
in grave error of law in quashing the proceedings by relying upon
the provisions contained under Section 16 of NIA Act.
12. Learned senior counsel further urged that as the case was investigated
by the State police and since no Special Court had been constituted
by the State Government under Section 22(1) of NIA Act, the Sessions
Court having jurisdiction over the division in which the offence was
committed, was seized of the exclusive jurisdiction to try the offences
as per Section 22(3) of NIA Act.
13. He further urged that since no Special Court was constituted, the
jurisdictional Magistrate, who would be the Chief Metropolitan
Magistrate in this case, has the jurisdiction to deal with the remand
of the accused. Nonetheless, Shri Dave candidly conceded that the
power to extend the period of detention beyond 90 days is exclusively
vested with the ‘Court’ as defined under Section 2(1)(d) of UAPA
which would be the jurisdictional Sessions Court in the present set
of facts and circumstances.
14. Without prejudice to the above, the contention of the learned senior
counsel was that since the accused never filed an application seeking
default bail, after the expiry of 90 days and before filing of the charge
sheet, the irregularity, if any, in the matter of granting remand stood
cured and hence, the accused has lost the right to claim release on
default bail. He thus implored the Court to accept the appeal and
set aside the impugned judgment and permit the Sessions Court
to proceed with the trial of the accused for the offences charged
including those under UAPA.
Submission on behalf of Respondent:-
15. Per contra, learned counsel appearing for the respondent, vehemently
and fervently urged that the view taken by the High Court while
interfering with the order dated 7th April, 2022 is the only permissible
and legal view in the extant facts and circumstances. He referred to
the Gazette Notification dated 29th April, 2011 and urged that a Special
[2024] 4 S.C.R. 645
The State of West Bengal v. Jayeeta Das
Court has already been notified by the Central Government for the
State of West Bengal and as such, all orders passed and actions taken
by the Chief Judge and the Chief Metropolitan Magistrate pertaining
to the offences under the UAPA are illegal and without jurisdiction.
16. As a consequence, the High Court was justified in exercising jurisdiction
under Section 482 CrPC in quashing the patently illegal order dated
7th April, 2022 and all subsequent proceedings sought to be taken
in furtherance thereof. He urged that the impugned order dated 11th
May, 2023 is just and legal and does not warrant any interference.
However, on the aspect of the grant of default bail to the accused,
learned counsel candidly conceded that no prayer was ever made on
behalf of the accused either in the Sessions Court or the High Court
seeking default bail. The plank contention advanced on behalf of the
respondent was that the proceedings before the Chief Judge and the
Chief Metropolitan Magistrate are vitiated because both the Courts
did not have the jurisdiction to proceed under the provisions of NIA
Act and UAPA in light of the fact that Special Court had already been
constituted for the State of West Bengal by the Central Government
vide Gazette Notification dated 29th April, 2011 which was functioning.
17. Learned counsel implored the Court to reject the instant appeal.
Discussion and Conclusion:
18. For the sake of convenience, we would like to advert to the issues
for determination formulated by the learned Single Judge of the High
Court in the quashing petition:-
"i. Whether the court of sessions was entitled to entertain
an application for extension of the period of remand in
terms of the proviso to Section 43D (5) of the UAPA
when no special court had been notified by the State
of West Bengal under Section 22(1) of the National
Investigating Agency Act, 2008.
ii. Whether the petitioner could have been remanded
by the learned Magistrate after offences under UAPA
had been added.”
19. Since the validity of the order dated 7th April, 2022 is the main issue
requiring adjudication in the case, we would like to reproduce the
said order for ready reference:-
646 [2024] 4 S.C.R.
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“IN THE COURT OF CHIEF JUDGE, CITY SESSIONS
COURT, CALCUTTA
STF PS Case No. 01 dt. 01.01.2022
GR(S ) 08 of 2022
Present: Siddhartha Kanjilal
Chief Judge, City Sessions Court, Calcutta. JO Code
WB01057
Order No. 02 dated 07.04.2022
Today is fixed for production of the accused person
and passing order with regard to adding sections
16/18/18B/20/38/39 of the UA(P) Act to the initial
charges u/s 120B/121/121A/122/123/ 124A of IPC.
Ld. PP in charge is present
Ld. Advocate for the accused files a fresh vakalatnama.
Seen the same. Let it be kept with the record.
IO is present along with CD.
Accused person namely, Joyeeta Das is produced
from police custody.
Today one remand application was filed by the
Assistant Commissioner of Police. STF, Kolkata
and prayed for further police custody for further
development of the investigation.
This Court finds that for effective investigation,
the accused be remanded to police custody till
11.04.2022.
The investigation Agency is directed to maintain
all the formalities as per guidelines of Supreme
Court while keeping the accused in the custody
in remand.
The accused is at liberty to report before the Ld.
Court of CMM, Calcutta on the next date whether
she has been physically or mentally tortured by the
Investigation Agency while she was in custody.
[2024] 4 S.C.R. 647
The State of West Bengal v. Jayeeta Das
Now the application for adding the sections
16/18/18B/20/38/39 of the UA(P) Act is taken up for
hearing.
Perused the record and application as well as case
diary.
It is revealed from the CD that several incriminating
documents, literatures, posters etc. related to the
organizational agenda of the banned organization,
CPI (Maoist) propagating for armed revolution in India
to overawe the established democratically elected
Government in the Country were recovered from the
accused person relating to Terrorists Act against the
Government.
As per the judgment passed by Hon’ble Justice Dr.
Dhananjaya Y Chandrachud (Supreme Court) in
connection with Criminal Appeal No. 1165 of 2021
the CJM Court of Sessions Court is the trial Court
for the offences punishable under section UA(P) Act
when no special Court has been notified by the State
Government as per Section 27 of the NIA Act.
If that be the so then, any offence where UA(P) Act
is involved, the CMM, Calcutta, herein is the remand
Court and the Chief Judge, City Sessions Court,
Calcutta is the Trial Court as no special court has been
notified by the State Government for the jurisdiction
of Calcutta as per Section 27 of the NIA Act.
Any accused being arrested by the State Police,
having UA(P) Act be produced before the Court of
Ld. CMM, Calcutta unless and until charge sheet is
submitted and once the charge sheet is submitted,
the Ld. CMM. Calcutta is duty bound to place the
case record along with the accused person before
this Court.
If an accused is arrested in other sections and during
investigation if the Investigation Agency wants to
add the sections of UA(P) Act, only permission is
required from the Sessions Court and after obtaining
648 [2024] 4 S.C.R.
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permission, the CMM, Calcutta or the CJM of any
district has the power to allow the Investigation Agency
for adding sections of UA(P) Act.
If the Investigation Agency prays for extension of
time for filing charge sheet beyond statutory period
of 90 days, where UA(P) Act has either been added
or initiated, permission is required from the Sessions
Court.
In case of taking the accused in remand, the remand
Court i.e. the Ld. Court of CMM, Calcutta or CJM of
any district has enough jurisdiction to pass such order.
In the present case. Investigation Agency prays for
adding sections 16/18/18B/20/38/39 of the UA(P) Act.
This Court finds that (here is sufficient ground for
allowing the Investigation Agency to add the sections
of the UA(P) Act in this particular Case.
Thus, the petition filed by the Investigation Agency dt.
05.04.2022 seeking permission for adding sections
16/18/18B/20/38/39 of the UA(P) Act is allowed.
Investigation agency is directed to take necessary
steps before the Ld. Court of CMM, Calcutta for the
same.
To 11.04.2022 for production of the accused before
the Ld. CMM, Calcutta.
CD be returned.
Let a copy of this order be given to the IO of this Case.
Office is directed to send the case record to the Ld.
CMM, Calcutta along with copy of order sheet after
keeping the skeleton record.”
20. After considering the entirety of the material available on record, the
learned Single Judge proceeded to hold as below:-
(i) That the special Court constituted by the Central
Government or the State Government, as the
case may be, under the NIA Act has the exclusive
jurisdiction to try offences under UAPA.
[2024] 4 S.C.R. 649
The State of West Bengal v. Jayeeta Das
(ii) In view of Section 16 of the said Act, the special Court
cannot take cognizance of the offence under the
UAPA directly without the case being committed to it.
(iii) In terms of the proviso to sub-Section(2) of Section
43(D) of the UAPA, the Court is empowered to extend
the period of detention pending investigation. On a
report of the Public Prosecutor indicating progress of
investigation and specific reason for detention of the
accused beyond 90 days but not more than 180 days.
(iv) Sub-Section (3) of Section 22 of the NIA Act states
that until a special Court is designated by the State
Government under sub-Section (1), the jurisdiction
conferred by the Act on a special Court notwithstanding
anything contained in the Code, shall be exercised by
the Court of Sessions in which the scheduled offence
is committed and it shall have powers to follow the
procedure provided under Chapter IV of the Act.
(v) Reliance was also placed on the judgment of this
Court in the case of Bikramjit Singh v. State of
Punjab (2020) 10 SCC 616 wherein it has been
held that for all offences under the UAPA, the special
Court alone has the exclusive jurisdiction to try such
offences.
21. After making the aforesaid discussion, the learned Single Judge
proceeded to refer to the Division Bench judgment of the Calcutta
High Court in CRM(DB) No. 3590 of 2022 dated 1st December, 2022
wherein it was held that once the offences under UAPA are added to
a case, the Magistrate is denuded of the power to remand in terms
of Section 167 CrPC (as amended in UAPA) beyond a period of 30
days. Observing so, the learned Single Judge proceeded to hold that
the order dated 7th April, 2022 passed by the learned Chief Judge,
City Sessions Court, Calcutta and all subsequent orders passed by
the learned Chief Metropolitan Magistrate were illegal and inoperative
and hence the same were quashed.
22. The frontal issue which falls for our consideration is as to whether
the Chief Judge, City Sessions Court, Calcutta had the jurisdiction
to pass the order dated 7th April, 2022.
650 [2024] 4 S.C.R.
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23. We would like to refer to sub-section (1) and sub-section (3) of
Section 22 of the NIA Act which is germane to the controversy and
is being reproduced hereinbelow:-
“22. Power of State Government to designate Court
of Session as Special Courts-
(1) The State Government may [designate one or more
Courts of Session as] Special Courts for the trial of
offences under any or all the enactments specified
in the Schedule.
(2) ….
(3) The jurisdiction conferred by this Act on a Special
Court shall, until a Special Court is [designated]
by the State Government under sub-section (1) in
the case of any offence punishable under this Act,
notwithstanding anything contained in the Code, be
exercised by the Court of Session of the division in
which such offence has been committed and it shall
have all the powers and follow the procedure provided
under this Chapter.
(4) ….”
24. A bare perusal of sub-section (3) of Section 22 of NIA Act would
make it clear that until a Special Court is constituted by the State
Government under sub-Section (1) of Section 22, in case of
registration of any offence punishable under UAPA, the Court of
Sessions of the division, in which the offence has been committed,
would have the jurisdiction as conferred by the Act on a Special Court
and a fortiori, it would have all the powers to follow the procedure
provided under Chapter IV of the NIA Act.
25. Admittedly, the present case involves investigation by the State police,
and therefore, the provisions of Section 22 would be applicable
insofar as the issue of jurisdiction of the Court to try the offences
is concerned.
26. Learned counsel for the respondent relied upon Gazette Notification
dated 29th April, 2011 in order to canvass that the Special Court had
already been constituted for trial of UAPA offences within the State
of West Bengal.
[2024] 4 S.C.R. 651
The State of West Bengal v. Jayeeta Das
27. A bare perusal of the said notification would make it clear that the
Special Court was constituted by the “Central Government” in exercise
of the power conferred by sub-section (1) of Section 11 of the NIA Act.
28. The State Government has been given exclusive power delegated
by virtue of Section 22(1) of the Act (reproduced supra) to constitute
one or more Special Courts for trial of offences under any or all the
enactments specified in the Schedule.
29. It is not in dispute that the State of West Bengal has so far not
exercised the power conferred upon it by Section 22 of the NIA Act
for constituting a Special Court for trial of offences set out in the
Schedule to the NIA Act and hence, the Sessions Court within whose
jurisdiction, the offence took place which would be the Chief Judge
cum City Sessions Court in the case at hand, had the power and
jurisdiction to deal with the case by virtue of the sub-section (3) of
Section 22 of the NIA Act.
30. Hence, the order dated 7th April, 2022, whereby the learned Chief
Judge cum City Sessions Court permitted the addition of the offences
under UAPA to the case does not suffer from any illegality or infirmity.
31. Now, coming to the second argument advanced by learned counsel
representing the parties.
32. Section 43D of UAPA provides a modified scheme for the application
of Section 167 CrPC which reads as below:-
“
43-D. Modified application of certain provisions of
the Code.—(1) Notwithstanding anything contained in the
Code or any other law, every offence punishable under
this Act shall be deemed to be a cognizable offence
within the meaning of clause (c) of Section 2 of the Code,
and “cognizable case” as defined in that clause shall be
construed accordingly.
(2) Section 167 of the Code shall apply in relation to a
case involving an offence punishable under this Act subject
to the modification that in sub-section (2),—
(a) the references to “fifteen days”, “ninety
days” and “sixty days”, wherever they
occur, shall be construed as references
to “thirty days”, “ninety days” and “ninety
days” respectively; and
652 [2024] 4 S.C.R.
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(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.”.
(3) Section 268 of the Code shall apply in relation to a
case involving an offence punishable under this Act subject
to the modification that—
(a) the reference in sub-section (1) thereof—
(i) to “the State Government” shall
be construed as a reference to
“the Central Government or the
State Government”;
(ii) to “order of the State Government”
shall be construed as a reference to
“order of the Central Government
or the State Government, as the
case may be”; and
(b) the reference in sub-section (2) thereof, to
“the State Government” shall be construed
as a reference to “the Central Government
or the State Government, as the case
may be”.
(4) Nothing in Section 438 of the Code shall apply in relation
to any case involving the arrest of any person accused of
having committed an offence punishable under this Act.
[2024] 4 S.C.R. 653
The State of West Bengal v. Jayeeta Das
(5) Notwithstanding anything contained in the Code, no
person accused of an offence punishable under Chapters
IV and VI of this Act shall, if in custody, be released on
bail or on his own bond unless the Public Prosecutor has
been given an opportunity of being heard on the application
for such release:
Provided that such accused person shall not be released
on bail or on his own bond if the Court, on a perusal of the
case diary or the report made under Section 173 of the
Code is of the opinion that there are reasonable grounds
for believing that the accusation against such person is
prima facie true.
(6) The restrictions on granting of bail specified in sub-
section (5) is in addition to the restrictions under the Code
or any other law for the time being in force on granting
of bail.
(7) Notwithstanding anything contained in sub-sections
(5) and (6), no bail shall be granted to a person accused
of an offence punishable under this Act, if he is not an
Indian citizen and has entered the country unauthorisedly
or illegally except in very exceptional circumstances and
for reasons to be recorded in writing.”
33. Under the proviso to Section 43D(2), the Court has been given the
power to extend and authorise detention of the accused beyond a
period of 90 days as provided under Section 167(2) CrPC.
34. Section 2(1)(d) of UAPA provides the definition of ‘Court’ under the
Act and it reads as below:-
“2. Definitions.—(1) In this Act, unless the context
otherwise requires,—
(d) “court” means a criminal court having
jurisdiction, under the Code, to try offences under
this Act [and includes a Special Court constituted
under Section 11 or under [Section 22] of the
National Investigation Agency Act, 2008.”
35. A plain reading of the provision would clearly indicate that the same
admits to the jurisdiction of a normal criminal Court and also includes a
Special Court constituted under Section 11 or Section 22 of the NIA Act.
654 [2024] 4 S.C.R.
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36. Hence, the Chief Judge cum City Sessions Court had the jurisdiction
to pass the order dated 7th April, 2022. In view of the definition of
the ‘Court’ provided under Section 2(1)(d) of UAPA, the jurisdictional
Magistrate would also be clothed with the jurisdiction to deal with the
remand of the accused albeit for a period of 90 days only because
an express order of the Sessions Court or the Special Court, as
the case may be, authorising remand beyond such period would be
required by virtue of Section 43D(2) of UAPA(reproduced supra).
37. Hence, to the extent the learned Chief Metropolitan Magistrate
extended the remand of the accused beyond the period of 90 days,
the proceedings were grossly illegal. Nonetheless, the fact remains
that the charge sheet came to be filed beyond the period of 90
days and as a matter of fact, even beyond a period of 180 days,
but the accused never claimed default bail on the ground that the
charge sheet had not been filed within the extended period as per
Section 43D of the UAPA. Hence, the only academic question left
for the Court to examine in such circumstances would be the effect
of evidence collected, if any, during this period of so called illegal
remand, after 90 days had lapsed from the date of initial remand of
the accused and the right of the accused to seek any other legal
remedy against such illegal remand. Such issues would have to be
raised in appropriate proceedings, i.e. before the trial court at the
proper stage.
38. As a consequence of the above discussion, the impugned judgment
dated 11th May, 2023 passed by learned Single Judge of the Calcutta
High Court cannot be sustained and is hereby reversed and set aside.
39. The appeal is allowed accordingly.
40. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
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