The Delhi HC on 10th July 2020, rejected the statutory bail for Sharjeel Imam and has put a stay on the order of the trial court regarding the extension of the investigation. The court also rejected the contention of the petition regarding the unsustainability of the APP's report. Furthermore, the court rejected the petitioner's belief that there was a mala fide intention behind filing a report on 88th day. The court thus granted an extension of investigation for 90 days and rejected the statutory bail for Imam in the Delhi riots case
Facts
FIR was registered against the petitioner under Section 124A/153A/505 of the Indian Penal Code (IPC) in Delhi with regard to speeches made in the area of Jamia on December 13, 2019. The video it was shared extensively. Another speech was shared where he addressed the AMU crowd. The state claimed the petitioner is accused of offenses relating to sedition and other unlawful activities. Another FIR was also registered in Assam regarding the same issue. In addition, during the investigation he was also booked under Section 13 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). Later a request was made by IO to APP to ask for another 90 days for investigation under Section 43 of UAPA. The petitioner, under Section 167(2) Cr.PC applied for statutory bail which was rejected later because the time period of investigation was extended. The petitioner challenged the order for extension of investigation and rejection of bail.
Petitioner’s Contention
The counsel firstly contended on the extension of detention of petitioner. Notice was not issued by the Court to the petitioner, contrary to the mandatory requirement of Section 43D(2)(b) of UAPA. The counsel for respondents without forming an opinion forwarded IO’s notice for an extension to court within one day. The counsel claimed that the requirement of law for “notice” to the petitioner has been flouted. Further, the failure to issue a notice or to seek his production has caused the miscarriage of justice. The Counsel stated that the petitioner had a right to oppose the extension of custody. Counsel submitted that order was passed on false representation by IO. Also, the report filed by APP doesn’t satisfy the requirement of ‘report’ on various grounds. She reiterated the observation of SC that said lockdown can not be an excuse for the delay in the investigation. Counsel also stated that the invocation of Section 13 was mala fide.
Respondent’s Contention
The counsel for respondent firstly stated that APP’s report is not only on record but it was also relied upon in the order. The counsel pointed out that the arguments of petitioners while citing the Sanjay Dutt case were contrary to the judgment. Further, the opportunity to oppose was not given to the petitioner, the requirement of the law is to make him aware of the factum of extension. Counsel cited a case where it was held that at the stage of extension of time for completion of investigation or extension of the period of detention, the Appellant cannot ask to see the reports of the PP. Post-decisional hearing is a way to ensure the principles of Natural justice. The fact that the petitioner’s custody extended till 180 days does not amount to failure of justice under Chapter XXXV of the Code. Non-production of accused, at time of remand will not render the detention illegal. Furthermore, the requirements to invoke Section 43D (2) (b) were satisfied as the speech caused disturbance in the country. Satisfaction of court to extend period of investigation satisfies requirement of Section 43D and the opinion was formed from submissions and reports of APP. Upon reproduction of IO’s report, the counsel said that it is the duty of the agency which would know the progress of investigation and extension of period. The APP must not alter it and must rely on the same. Further, the APP probed the stated requirement of the investigating agency before endorsing and pointed out the independent application of mind in the report. He referred to Gadling’s case, to talk about more substance than form. APP in the instant case having filed a report which discloses due application of mind.
Judgment
The court accepted the reasoning of respondents under Sanjay Dutt’s case whereby, requirement of notice is production of the accused before the Court and not written notice giving reasons for seeking extension requiring the accused to show cause against it. Citing further more reasons, the plea to oppose APP’s report is not sustainable. As contended by petitioner information given by IO to counsel invoking Section 43 of UAPA is not substitute for a notice by court, the court relied on messages on April 25, 2020 at 10:50 am that the counsel informed the IO in the manner depicted therein. The report depicted the progress in investigation and reason for extension. Upon the application of mind question, the court relied on the text of the report that, according to court, shows application of mind. The mala fide intention of filing a report on the 88th day is not convincing because the petitioners did not contest application of Section 13. The counsel for respondents, is justified in contending the compelling reasons to mean good / sufficient reasons justifying the extension of the investigation beyond a period of 90 days.
Case Details
Case- CRL.M.C. 1475/2020
Petitioner- SHARJEEL IMAM
Counsel for petitioner- Ms. Rebecca Mammen John, Sr. Adv. with Mr. Bhavook Chauhan, Mr. Surabhi Dhar, Mr. Ahmed Ibrahim and Ms. Praavita K, Advs
Respondent- STATE OF NCT OF DELHI
Counsel for respondent- Mr. Aman Lekhi, ASG with Mr. Amit Mahajan, CGSC and SPP, Mr. Rajat Nair, Special Public Prosecutor, Mr. Ritwik Rishabh, Mr. Ujjwal Sinha, Mr. Aniket Seth and Mr. Dhruv Pande, Advs. for Delhi Police. Mr. Amit Gupta, APP
Coram- HON'BLE MR. JUSTICE V. KAMESWAR RAO
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