Delhi High Court
Sharjeel Imam vs State Of Nct Of Delhi on 10 July, 2020
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: July 10, 2020
+ CRL.M.C. 1475/2020
SHARJEEL IMAM ..... Petitioner
Through: Ms. Rebecca Mammen John, Sr.
Adv. with Mr. Bhavook
Chauhan, Mr. Surabhi Dhar,
Mr. Ahmed Ibrahim and
Ms. Praavita K, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: 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
JUDGMENT
V. KAMESWAR RAO, J
1. The challenge in this petition is to the order dated April
25, 2020 passed by the Roster Judge, Patiala House Courts, New
Delhi, whereby the Court on an application / report submitted by
the learned Addl. Public Prosecutor ('APP' for short) extended
the period of investigation for further 90 days totalling to 180
days. The challenge is also to the order passed on the Bail
Crl. M.C. 1475/2020 Page 1/54
application No. 1051/2020, under Section 167 (2) of Cr.P.C.,
which was dismissed on the ground that the period of
investigation has been extended.
2. The facts in brief are that an FIR bearing no. 22/2020 is
registered against the petitioner on January 25, 2020 at PS-
Crime Branch, New Delhi under Section 124A/153A/505 of the
Indian Penal Code ('IPC', for short) with regard to speeches
made in the area of Jamia on December 13, 2019. The said
speech was shared on social media. Another speech was
uploaded on twitter handle and on different websites in which
he is seen addressing gathering in Aligarh Muslim University.
According to the State, the petitioner is accused of offence
relating to sedition, promoting enmity between groups on the
ground of religion and indulging in unlawful activities to cause
disaffection towards India. It appears FIRs have also been
registered at places like Assam, Imphal and Itanagar. The
petitioner was arrested from Jehanabad, Bihar on January 28,
2020. On a transit remand he was brought to Delhi. On January
29, 2020, he was produced before the Chief Metropolitan
Magistrate, Patiala House Courts, New Delhi and was remanded
to police custody for five days till February 3, 2020. On
February 3, 2020, the police custody was extended for three
more days till February 6, 2020. He spent six more days in
police custody till February 12, 2020. The police custody was
further extended till February 26, 2020.
3. It is noted that the petitioner was taken to Assam pursuant
to a production warrant of the relevant Jurisdictional Magistrate
Crl. M.C. 1475/2020 Page 2/54
in Assam which was issued for investigation in an FIR
registered on the same day as the FIR in Delhi. The petitioner is
currently lodged in Assam Central Jail.
4. It is noted as a fact that during the course of investigation
Section 13 of the Unlawful Activities (Prevention) Act, 1967
('UAPA', for short) was further added in the case. On April 24,
2020, a whatsapp message was sent by Sh. Vijay Kumar,
Investigation Officer to the Counsel for the petitioner Ms.
Surabhi Dhar stating as under:
"Madam, Good evening,
A case vide FIR No. 22/2020 was registered at PS-Crime
Branch, New Delhi and accused Sharjeel Imam was
arrested in the case. You had filed the Vakalatnama as
counsel to the accused Sharjeel Imam in the present case.
Now, Section 13 of Unlawful Activities (Prevention) Act
has been added in the case and a request is being made in
Court u/s Unlawful Activities (Prevention) Act on
25.04.2020.
You, being the counsel to the accused Sharjeel Imam, are
requested to appear in the court of Shri Gurvinder Pal
Singh, Learned District Judge (Commercial Court)-02,
Patiala House Court, New Delhi on 25.04.2020 at 11:00
AM for the same.
In case any assistance (curfew pass) is required, Kindly
intimate at one.
Regards..."
5. On April 25, 2020 (Annexure P-7), a request was made
by the IO to the APP to make a request to the Court to extend
the period of investigation for further 90 days to conclude the
investigation. At 10.50 AM on April 25, 2020, the counsel for
the petitioner has in response to the whatsapp message of Sh.
Vijay Kumar, IO has stated as under:
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"Dear Mr. Vijay Kumar, it is in reference to the
application u/a 43 of the Unlawful Activities Prevention
Act purported to be filed by you qua Sharjeel Imam in
FIR no. 22/2020 PS Crime Branch. Until the Ld. Court
issues notice to the accused on the said application, I
cannot appear for him as I have no instructions from in
this regard."
6. The APP on duty on April 25, 2020 (page 10 of the
supplementary report) filed an application / report before the
Court of Sh. Gurvinder Pal Singh, Roster Judge, Patiala House
Courts, New Delhi with a prayer to the Court, in view of
provision made under Section 43 of UAPA, to extend the period
of investigation for further 90 days. It is on this application /
report, that the impugned order has been passed on April 25,
2020.
7. That on April 29, 2020, the petitioner filed an application
under Section 167(2) Cr.PC for statutory bail. The said
application was rejected on May 04, 2020 on the ground that
vide order dated April 25, 2020, the time period for completing
the investigation has been extended.
SUBMISSIONS ON BEHALF OF THE PETITIONER.
8. Ms. Rebecca John, learned Sr. Counsel for the petitioner
stated, the impugned order under Section 43D(2)(b) UAPA
thereby extending the period of detention of the Petitioner is bad
for the following reasons:
a) Notice of the report/application submitted by the Ld.
APP under Section 43D(2)(b) was not issued by the Court
to the petitioner, contrary to mandatory requirement of
Section 43D(2)(b). She stated (i) in Hitendra Vishnu
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Thakur v. State of Maharashtra", (1994) 4 SCC 602 it is
held, when a report is submitted by the public prosecutor
to the Designated Court for grant of extension under
clause (bb), its notice should be issued to the accused
before granting such an extension so that an accused may
have an opportunity to oppose the extension on all
legitimate and legal grounds available to him. (ii)
Information given by the investigating agency to the
counsel for the Petitioner, that the investigating agency
intends to move an application under Section 43 UAPA,
is not a substitute for a notice issued by the Court on an
application/report filed by the Ld. APP, seeking extension
of time for investigation.
9. According to Ms. John, The IO had given the said
information to the counsel on April 24, 2020 and had moved the
application before the Ld. APP only on April 25, 2020, who had
thereafter filed his application/report before the Court on April
25, 2020. Therefore, even till April 25, 2020, there was no
occasion for the Ld. APP to apply his mind to the facts and
materials of the case, and form an independent opinion, if
further extension of the period of detention of the petitioner was
required. The Ld. APP was well within his rights to have
refused to move such an application before the Court. The
investigating agency could not have had assumed on April 24,
2020 itself, that the Ld. APP would mechanically prepare a
report under Section 43D, just because it intended to move an
application in this regard. Further, it could not have been
Crl. M.C. 1475/2020 Page 5/54
assumed by the investigating agency that the Court would
dispose of the said application on April 25, 2020 itself, as the
Court could have refused to even issue notice on the said
application, if it had deemed such application and report to be
prima facie lacking in satisfactory material particulars.
Therefore, the "information" given by the IO to the counsel for
the Petitioner, was premature and unsustainable in law.
10. She stated, during the course of arguments, the
respondent conceded that Ld. ASJ in Patiala House Courts has
issued notices to counsels through email for consideration of
applications/reports, under Section 43D(2)(b) of the UAPA in
the ongoing investigation in riot cases. According to her
following table will demonstrate how the requirement of law for
"notice" to the petitioner has been flouted in the present case:
Standard in Law Facts in the Present
case
Notice Information
That the Report of That an application
the Prosecutor for report will be filed,
extension is being even before moving
considered by the an application before
court the Public prosecutor
on the valid Report Of the intention of the
of the Prosecutor Investigating agency
under Section to move an
43D(2)(b) UAPA application under S.43
UAPA
By the Court By the Investigating
Officer
To the Accused To the counsel for the
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through production Accused, without any
or to the effort to produce the
Accused/Counsel accused, as a
through Court whatsapp
issued Notice message
11. She stated the failure to issue notice to the petitioner or
seek his production from Assam or conduct proceedings
through video conferencing has resulted in grave miscarriage of
justice as the liberty of the petitioner has been taken away in a
prejudicial manner.
12. It was her submission that even the requirement of
production was not fulfilled (as held in Sanjay Dutt vs. State
(1994) 5 SCC 410). While COVID-19 lockdown could be a
reason for physical non-production but, given that the Assam
Jail has video conferencing, there is no reason that is
forthcoming for non-production through video conferencing.
13. This non-production is also in violation of the mandatory
recourse to video conferencing during the nation-wide
lockdown at the time of production of under-trials specified by
the Supreme Court vide order dated March 23, 2020 in Suo
Motu Writ Petition (C) No. 01/2020 titled "In Re: Contagion
of COVID 19 in Prisons".
14. She relied on the decision of Hitendra Vishnu Thakur
(supra) requiring the Court to issue notice to the accused to
enable the accused to oppose the application for extension of
custody, which has been consistently followed in the following
judgments:
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1. Devinderpal Singh v. Govt. of National
Capital Territory of Delhi reported at
(1996) 1 SCC 44
2. Sanjay Kumar Kedia v. Narcotics Control
Bureau, (2009) 17 SCC 631
3. Mohd Maroof v State reported at 2015 SCC
OnLine Del 9509
15. According to her, even the judgements cited by the
respondent such as (i) State of Maharashtra vs. Surendra
Pundlik Gadling & Ors., (2019) 5 SCC 178 relies on Hitendra
Vishnu Thakur (supra) (ii) State v Shakul Hameed, (2019) 6
SCC 350 demonstrates in paragraph 4 of the judgment that the
accused therein was given an opportunity of hearing and also
filed written arguments opposing the request for extension of
custody and (iii) Sayed Shahid Yousuf vs. NIA, 2018 SCC
Online Del 9329 relies on Hitendra Vishnu Thakur (supra).
16. It was her submission, the impugned Order has been
passed on the basis of a false representation by the Investigating
Officer, who had wrongly stated in his application that the
counsel for the Accused "refused" to appear. According to her
the counsel for the petitioner had only stated that she would
appear if "notice" is issued by the Court. In this regard, she has
drawn my attention to Annexure P6, Page [email protected]). She stated
the first status report filed on June 4, 2020 claims at paragraph 9
that the Ld. Roster Judge passed the Impugned Order after
"verifying" "the WhatsApp message sent by Insp. Vijay Kumar
to Advocate Surabhi Dhar as advance notice of the hearing."
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This description appears to be grossly misleading and contrary
to the record as the Impugned Order does not record a
verification of the WhatsApp message sent, and instead notes
that the Investigating Officer submitted that on informing the
counsel for the accused, she "refused to appear" and noted that
this refusal to appear is mentioned in the bottom of the
application moved by the investigating officer / ACP under
Section 43D of the UAPA.
17. She stated, the Report/Application was filed on April 25,
2020, i.e., on the 88th day of the custody of the petitioner. No
prejudice would have been caused to the respondent had the
report/application been put up for consideration on April 27,
2020, i.e., on the 90th day (Monday), after issuance of notice by
the Court, to the petitioner through video conferencing or
through the Petitioner's counsel.
18. That apart, she stated the "report" of the APP under
Section 43D(2)(b) does not satisfy the requirement of a report
under the Section as it does not display independent application
of mind of the APP. In this regard, she has stated the following:
i. That the legislature and judgments of the Supreme
Court as reiterated by this Court, have placed great value
to the independent application of mind by the Public
prosecutor, to the status of investigation and the
compelling need for extension of the detention of the
accused. [Reference to Hitendra Vishnu Thakur's case
(supra) (para 23)].
Mere reproduction of the application of the Investigating
Crl. M.C. 1475/2020 Page 9/54
Agency, and recording his "satisfaction" in a formal
paragraph does not demonstrate application of mind.
ii. According to her in the present case, the report is
identical to the application of the investigating agency,
including all spelling and grammatical errors of words
and sentences, with a change in heading and an additional
line stating that the Prosecutor is satisfied, using the
language of Section 43D. In this regard, she placed
reliance on the judgment in the case of Paramjeet Singh
Sawney v Dinesh Verma & Another. (1987) 33 DLT
161, 1987 SCC OnLine Del 274, para 9).
iii. She stated in Sanjay Kumar Kedia (Supra), it is held
that the report of the Public Prosecutor shall set out
"compelling" reasons seeking extension of custody.
There are no compelling reasons for extension of custody
as all the supposed material for investigation has been
available with the respondent since the petitioner's police
custody, and not enough seems to have been done since
then and during the 56 days that the petitioner was in
custody before lockdown was imposed.
19. According to her the following is relevant:
a. The only reason for inability to complete the
investigation is that the COVID-19 Lockdown
"slowed down the pace of investigation". The
pace of the investigation could have been
slowed down by the lockdown only if the
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Report of the APP showed satisfaction that the
pace was at regular speed, in the 56 days of
custody before the lockdown was imposed. In
any event, the Supreme Court has recently held
in S. Kasi v State through The Inspector of
Police, Samaynallur Police Station, Madhurai
District. (Criminal Appeal No. 452 of 2020 that
the lockdown for COVID-19 cannot be used to
claim delay in investigation and deny accused
his right to statutory bail.
b. The Report of the Public Prosecutor does not
demonstrate whether efforts were made to
interrogate the persons apparently yet to be
interrogated, prior to the Lockdown, whether
notices were sent to them, whether they
expressed their inability to join investigation, if
statements of witnesses were attempted to be
remotely taken or if lockdown passes were
offered to them as well, to join investigation.
She stated, Section 161 Cr.PC provides that
statements of witnesses can be recorded even
through audio-video electronic means, therefore
in any event there was no impediment in
interrogation of witnesses despite lockdown.
c. The witnesses to be examined appear to be
residents of Delhi and the speeches themselves
were available with the prosecution prior to the
Crl. M.C. 1475/2020 Page 11/54
registration of the FIR. Waiting for sanction or
scientific labs / Facebook / Twitter etc. to
respond can never be a ground for extension of
custody.
iv. According to her, the present challenge to the
impugned order is not on the merits of case, as it is
neither the stage for doing so, nor does it affect the nature
of challenge he is making presently.
However, according to her, the petitioner
challenging the report and its findings in its entirety.
Therefore, the submission of the respondent that the
petitioner has not challenged the said report on merits, is
misplaced and baseless.
20. According to Ms. John, invocation of Section 13 of the
UAPA, and the request for extension of investigation on the
88th day of custody in an FIR that was only under IPC offences,
has been done only with a view to circumvent the rights of the
petitioner under Section 167 (2) Cr.PC, and is therefore mala
fide for the following reasons:
i. The investigating agency moved an application under
Section 43D(2)(b) on April 25, 2020 addressed to the
APP. The reason for invocation of the UAPA is given by
saying that the alleged speeches of the petitioner were
"carefully gone through" and "extracts of the speech
clearly reflects that accused has committed, advised and
incited commission of unlawful activity. Hence Section 13
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UAPA was added in the case." Evidently, the alleged
speeches were available with the investigating agency at
the time of the FIR and the transcripts have been
available since at least February 3, 2020, as per the
remand application of the respondent.
ii. The second status report of the respondent filed on
June 23, 2020 admits at paragraph 17 that UAPA was
invoked on the 88th day and justifies it by stating that
invocation is the prerogative of the Investigating Agency.
The petitioner is however challenging the invocation of
UAPA on the 88th day, solely for the purpose of
circumventing the statutory rights of the petitioner. The
respondent has relied upon the alleged voice specimen
report of the petitioner for invocation of UAPA on the
88th day, but has not indicated the date of receipt of such
report, which would possibly contradict their ground for
the last moment invocation of UAPA. She stated, the
invocation of section 43D (2) proviso is not the norm but
an exception. The Code of Criminal Procedure, does not
permit keeping accused persons endlessly in custody. The
statutory requirements of section 57, 167(1) and indeed
43D(2) is to complete investigations expeditiously and
within the period of 90 days. The invocation of the
proviso is in exceptional cases and cannot be routinised.
In the end, she presses for the relief as prayed for.
SUBMISSIONS ON BEHALF OF THE RESPONDENT.
Crl. M.C. 1475/2020 Page 13/54
21. Mr. Aman Lekhi, learned ASG appearing for the State
would submit that petitioner is accused of offence relating to
sedition, promoting enmity between groups on the ground of
religion and indulging in unlawful activities to cause
disaffection against India.
22. He stated, the submissions of Ms. John restricts the
challenge to the following grounds: -
i. The Public Prosecutor in seeking extension of time
acted mechanically without application of mind
ignoring the legislative intent of not extending
custody unreasonably.
ii. There were no "compelling reasons" for extension of
the period of investigation.
iii. The application for extension was moved on the 88th
day of the custody of the petitioner.
iv. The petitioner was not given notice of the Application
under Section 43 D of the Unlawful Activity
(Prevention) Act, 1967 ('UAPA', for short) and was
not produced before the Court even through the
medium of electronic video linkage.
23. According to him, Ms. John did not argue ground 'c' that
the Report of the APP demonstrating independent application of
mind "was not available before the Ld. Roster Judge" and that
he had "merely placed his signature along with the date, name
and designation on the Application by ACP/SC/Crime". He
stated that the Report of the APP is not only on record but has
Crl. M.C. 1475/2020 Page 14/54
been referred to and relied upon both in the impugned order and
the Order dated May 4, 2020.
24. Mr. Lekhi submitted that Ms. John did not challenge the
addition of Section 13 of the UAPA to the list of offences of
which the petitioner is accused of nor did he dispute the right in
the respondent to seek his police remand for further
investigation into the said offence. Police remand could only
have been taken in terms of the second proviso inserted under
Section 43(D)(2)(b) and the petitioner did not argue that there
was no cause or justification for requesting a change in custody
of the petitioner. No effort was also made to indicate how any
of the other reasons contained in the Report did not, in fact,
justify the extension of investigation or detention of the
petitioner.
25. On the plea of Ms. John that notice was not issued to the
petitioner nor the petitioner was produced before Court, he
stated the following:
a. Ms. John relied upon Hitendra Vishnu Thakur (supra),
wherein the court has held that "notice should be issued
to the accused before granting such an extension so that
an accused may have the opportunity to oppose the
extension on all legitimate and legal grounds available
to him."
b. Ms. John did not cite the judgment of the Constitution
Bench of the Supreme Court in Sanjay Dutt (supra)
while making her submissions, dealing with it only in
rejoinder and that too without any explanation as to
Crl. M.C. 1475/2020 Page 15/54
what Sanjay Dutt (supra) actually held. The arguments
on behalf of petitioner are contrary to the clear
declaration of law in the judgment.
c. The reason for the omission by the petitioner to cite
Sanjay Dutt (supra) was the fact that the law relating to
"notice" as declared in Hitendra Vishnu Thakur
(supra) stands completely modified by the judgment in
Sanjay Dutt (supra).
d. The Supreme Court in Sanjay Dutt (supra), accepting his
counsel's submission that the requirement of notice
contemplated by the decision in Hitendra Vishnu
Thakur (supra) before granting the extension for
completing the investigation is to mean "mere
production of the accused before the court and not a
written notice to the accused giving reasons for seeking
the extension requiring the accused to show cause
against it". He stated, the Constitution Bench held in
para 53(2)(a) that:-
"XXXX XXXX XXXX
The requirement of such notice to the accused
before granting extension for completing the
investigation is not a written notice to the
accused giving reasons therein production of
the accused at that time in the court informing
him that the question of extension of the period
of completing the investigation is being
considered, is alone sufficient for the purpose."
(emphasis supplied)
Crl. M.C. 1475/2020 Page 16/54
e. The absence of the requirement to communicate reasons
to the accused is clearly indicative of the policy of law
to exclude the participation of the accused in the process
of scrutiny of the said reasons to justify the extension of
the period of investigation.
f. This also accords with the four conditions enunciated by
the Supreme Court itself which do not contemplate
conceding a right to contest to an accused as a valid
precondition for an order of extension.
g. Consequently, the requirement in Hitendra Vishnu
Thakur (supra) to concede to an accused an
"opportunity to oppose" the extension is not available to
him. The requirement of law is only that the accused is
made aware of the factum of extension. This Court in
the case of Syed Shahid Yousuf vs. NIA; 2018 SCC
OnLine Del 9329 at para 42 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. Those reports,
are to satisfy the Court about the progress of
investigation and the justification for seeking extension
of time to complete the investigation.
h. In any event, the requirements of natural justice are
satisfied through provision for a post-decisional hearing
as in the case of these proceedings before this Court
wherein it is open to the petitioner to demonstrate that
the conditions of Section 43D of UAPA are not
Crl. M.C. 1475/2020 Page 17/54
satisfied. The requirements of natural justice referred to
in Hitendra Vishnu Thakur (supra) stand modified in
Sanjay Dutt (supra).
26. Mr. Lekhi stated, admittedly, the Supreme Court did not
deal with consequence of non-production of the accused. The
reason for the same is obvious as in such situations Chapter
XXXV of the Code will be attracted. The default does not
render proceedings void under Section 461. And under Section
465 of the Code no order is liable to be reversed or altered on
account of any error or irregularity "unless in the opinion of
that Court, a failure of justice has in fact been occasioned
thereby." As the Supreme Court has itself has held in Willy
(William) Slaney vs. The State of M.P. 1955 (2) SCR 1140 at
pg. 1153 that where "it may be possible to show that having
regard to all that occurred no prejudice was occasioned or
there was no reasonable probability of prejudice", the
irregularity will not invalidate the order.
27. He stated, the arguments on behalf of the petitioner apart
from simply stating that the petitioner was not produced do not
in any way state how the omission resulted in "failure of
justice... in fact". The mere fact that the period of custody stood
extended to 180 days cannot be cited as prejudice as the facts of
the case clearly demonstrate that the continued detention of the
petitioner is justified in law.
28. Moreover, "failure of justice" is neither pleaded nor
argued despite the requirement of law that the same must be
established "in fact". The mere failure to produce the petitioner
Crl. M.C. 1475/2020 Page 18/54
cannot vitiate the order extending the period of investigation.
Despite the said infraction, the continued detention of the
petitioner is justified and no prejudice is caused by his
continued incarceration.
29. Mr. Lekhi stated, the judgments cited by Ms. John, i.e.,
Sanjay Kumar Kedia (supra) and Mohd. Maroof (supra) do
not refer to the Constitution Bench judgment of Sanjay Dutt
(supra) and the reliance on the facts of Shakul Hameed
(supra), (para 4 of the judgment) to argue that the "spirit of
Hitender Vishnu Thakur is alive" does violence to not only the
doctrine of precedent as the Constitution Bench has overruled
Hitendera Vishnu Thakur (supra) on this issue.
30. He further stated that Ms. John while relying upon
Devinderpal Singh (supra) ignored para 15 of the judgment,
which noticing both Sanjay Dutt (supra) and Hitendra Vishnu
Thakur (supra) clearly held that written notice to the accused is
not required and "informing him that the question of extension
for completing the period of investigation was being considered
would be sufficient notice to the accused." Insofar as reliance
on para 16 is concerned, the same is misconceived because in
the said case there was no report of the APP. The report of the
APP is both a statutory requirement and is one of the four
conditions declared by the Supreme Court for a proper exercise
of power under section 43D.
31. Additionally, he stated that Devinderpal Singh (supra)
cannot be relied upon to suggest that on non-production, the
Crl. M.C. 1475/2020 Page 19/54
order under Section 43D of UAPA stands vitiated. As already
stated, this submission ignored Chapter XXXV of the Code.
32. He stated, the Supreme Court in the case of Ramesh
Kumar Singh vs. State of Bihar 1987 (Supp) SCC 335 has
clearly held that non-production of the accused at the time of
his remand will not render the detention illegal.
33. According to Mr. Lekhi, even otherwise, intimation of
the proposed hearing was sent to the petitioner's counsel. This
intimation has been described by the petitioner as "notice". The
description is misleading as the Counsel was only being
informed of the proceeding for extension of the period of
investigation to be taken the following day.
a. Admittedly, the counsel to whom the intimation was
given is the counsel for the petitioner before this Court
holding a vakalatnama from him since February, 2020.
b. The said counsel did not, when intimated of the
hearing, inform the investigator that she would not
appear or that she did not have any instructions.
c. It was only on the following day i.e. February 25, 2020,
barely a few minutes before the hearing that the
counsel intimated that she will not appear.
d. The petition does not state when the counsel for the
petitioner actually received instructions and on the
contrary raises the grievance that she did not receive
any intimation from the investigating agency about the
application under Section 43 of the UAPA moved
before the Court and proceeds to state that she
Crl. M.C. 1475/2020 Page 20/54
thereafter inspected the file to ascertain what had
happened.
e. Implicit in this conduct is the existence of the standing
instructions to the petitioner's counsel to appear for
him in these proceedings. Nowhere does the counsel
states that she received fresh instructions from the
client after receiving intimation from the investigating
officer. In other words, the alleged want of instructions
is but a rouse and can clearly be seen as a stratagem to
fault the impugned order.
f. The first status report clearly (dated June 2, 2020)
stated that the call was made to the counsel, which
lasted for 1 minute and 12 seconds AND THERE IS
NO DENIAL OF THIS FACT IN THE REPLY FILED
TO THE STATUS REPORT. The counsel was also
offered the facility of a curfew pass to enable her
appearance, intimated both the date and time of hearing
and could have appeared before the Court to make the
very plea of want of instructions, which she is now
raising before this Court. It is also apparent, that there
was nothing sinister in what was undertaken by the
investigating agency and there was no attempt to hide
facts or to conceal the relevant court proceedings.
g. He stated that the petitioner would have been informed
of the Application to seek extension of period of
investigation. This is also borne out of the fact that the
petition deliberately does not state when the petitioner
Crl. M.C. 1475/2020 Page 21/54
was in-fact informed and it is implicit in the bare
reading of the petition that the petitioner was never in
the dark about the proposed extension. In any event, as
has already been submitted as there was cause for
extension of period of investigation, the continued
detention is justified and no prejudice is suffered.
h. In fact, the "right to counsel" is part of a genuinely fair
adversarial proceeding and the availability of a counsel
learned in law is part of the reform of criminal
procedure, which followed from the Treason Act, 1695
and the counsel who was intimated was no stranger to
the accused but the very counsel through whom he is
now appearing before this Court. In other words, a
counsel was not forced upon the petitioner against his
will. If it is the case of the petitioner's counsel that they
have a right to contest the reasons for extension of the
period of investigation, there is no plausible
explanation for her deliberate absence in the
proceedings, except to use this absence as a ground to
challenge the impugned order.
34. On the application / report under Proviso to Section 43D
(2) (b) / of UAPA that it does not satisfy the requirement of a
report and also does not show the application of mind, Mr.
Lekhi submitted that the Supreme Court in State vs. Shakul
Hameed (supra) declared that the ingredients for extension
under Section 43(D)(2)(b) are: -
Crl. M.C. 1475/2020 Page 22/54
(1) It has not been possible to complete investigation
within the period of 90 days;
(2) A Report to be submitted by the Public Prosecutor;
(3) The said Report indicating the progress of
investigation and the specific reasons for detention of
the accused beyond the period of 90 days;
(4) Satisfaction of the court in respect of the Report of
the Public Prosecutor.
35. He stated the statutory ingredients to invoke the proviso
to Section 43D (2) (b) are comprehensively satisfied in the
following manner:
a. The Public Prosecutor stated: "However investigation
wrt following points is still pending and required time
to complete the same". This satisfies the first
requirement.
b. The Report of the Public Prosecutor is at pg. 10-13of
the Supplementary Status Report filed before this
Court. This satisfy the second requirement. The Report
describes itself as "Application and report u/s
43D(2)(b)". Mr. Lekhi relied on the judgment of
Hitendra Vishnu Thakur vs. State of Maharashtra
(supra) as relied upon by Ms. John herself wherein it is
stated: -
"Whether the public prosecutor labels his report as
a report or as an application for extension, would
not be of much consequence so long as it
demonstrates on the face of it that he has applied
his mind and is satisfied with the progress of the
Crl. M.C. 1475/2020 Page 23/54
investigation and the genuineness of the reasons
for grant of extension to keep an accused in further
custody..." (emphasis supplied)
c. In the instant case, the Report indicated both the
progress of investigation and the specific reason for
detention, stating that "Section 13 of UAPA was
added in the case" for which reason it was stated
that the petitioner was to be taken in police
custody. He stated, it is not argued that Section 13
could not be added or that there was no occasion
for taking the petitioner into police custody.
Moreover, 13 other reasons were also set out. This
satisfies the third requirement of proviso to Section
43 (2)(b) of UAPA. According to him, the
justification can be seen from the following:-
i. That the report of the voice sample of the
petitioner was received only on April 20, 2020
thus linking him to the speeches of December
2019 and January 2020 for which speeches he
was accused of offences under IPC. Upon
receipt of said report the occasion "to verify
the role of the accused Sharjeel Imam and
unearth the whole conspiracy" with regard to
the riots after his speech and the strategy of
bringing Delhi to a grinding halt through
chakka jams all over the city as stated in
reason 5 in the list of reasons, became clearly
justified. This justification was the basis of
Crl. M.C. 1475/2020 Page 24/54
both Report of the APP and the impugned
Order.
ii. It is also for this reason that reason 6 in the list
of reasons becomes a justifiable ground for
extension as it was after the petitioner's
speech that roads were blocked, tents were
erected and riots spread all over Delhi
necessitating the need "to establish the larger
conspiracy and persons behind it".
iii. Much as in the same manner as the petitioner
did not dispute the addition of Section 13 of
the UAPA and the need for police remand, the
petitioner did not even contest reasons 5 and
6, referred above. These reasons by
themselves justify the need for extending
period of investigation. The other reasons also
exist necessitating further inquiry particularly
in the context of addition of Section 13 of
UAPA which, in fact, was the reason for
Application seeking extension under UAPA.
In the time of the first police remand the
petitioner was not accused of an offence under
UAPA.
iv. Admittedly, for much of the period after the
arrest of the petitioner (January 28, 2020)
there was a lockdown between March 25,
2020 to May 17, 2020. As a result of the
Crl. M.C. 1475/2020 Page 25/54
lockdown, "the pace of investigation was
seriously disrupted". The petitioner,
however, relied upon the judgment of S Kasi
(supra), to argue that this ground is not
available to the respondents. The submission
of the petitioner is again completely
misconceived as not only the fact of the two
cases are different but the applicable law is
also not the same.
i. Firstly, the offences in the case of S.
Kasi (supra) were not under UAPA.
ii. Secondly, in S. Kasi the period for
filing the chargesheet had admittedly
expired, which is not a fact in the present
case.
iii. Thirdly, in S. Kasi the Supreme Court
disapproved reliance by the High Court upon
Order dated March 23, 2020 of the Supreme
Court. According to the Supreme Court the
High Court misconstrued the said order to
hold that the provisions of the Code stood
curtailed. The instant case is not based on
order dated March 23, 2020. It is not a case
of curtailment of the Code but application of
the Code as modified by UAPA. The
Crl. M.C. 1475/2020 Page 26/54
impugned Order is clearly in-terms with
Section 43D of the UAPA.
iv. Fourthly, there is no provision in the
Code for extension of the period of
investigation beyond what is prescribed
under the first proviso of Section 167(2) of
Code. Consequently, on completion of the
period prescribed and failure to file the
chargesheet, he would be entitled to statutory
bail. However, under the UAPA, the law
itself provides for extension of the period of
investigation. The reason for extension in the
instant case is not eclipsing of the period of
limitation under the order of the Supreme
Court dated March 23, 2020 [as was the case
in S Kasi (supra)] but the addition of the
offence under the UAPA and the
consequential need for further investigation,
apart from relevant information from the
forensic laboratory, which not only confirms
the accusations originally made against the
petitioner but assume relevance even for the
investigation under the UAPA. The same is
contained in the Report of the Prosecutor,
showing due application of mind to the
Application of the investigating officer,
justifying the Court exercising statutory
Crl. M.C. 1475/2020 Page 27/54
power under section 43D of the UAPA to
extend the period of investigation.
v. Fifthly, the principle of S Kasi (supra)
would be relevant if the investigating agency
had approached the Court after the
completion of 180 days available to it for
completion of investigation.
vi. It is only when the period prescribed
for completing the investigation is expiring
that an application for extension of period of
investigation can possibly lie. The intent
behind deferring an application for extension
is the endeavor to complete the investigation
within the original period. A prior moving of
the application would be clearly premature
and can invite comment from the Court that
period if yet available for completion of
investigation. Law does not specify any day
for moving the application and as long as the
application is moved prior to the expiry of
period prescribed the same cannot be faulted
on the ground that it was moved on the 80 th
or 88th day and not on 60th or 65th day. In any
event, as already stated there is good cause
for extension of period of investigation.
vii. "Compelling reasons" only mean
good and sufficient cause for extension. It is
Crl. M.C. 1475/2020 Page 28/54
intended to check a casual or off-hand
approach in seeking extension. A bare look
at the record suggests that the requisite
conditions are sufficiently and satisfactorily
attracted and there is concrete and definite
reason for the extension. The petitioner apart
from saying that "compelling reasons"
should exists fails to demonstrate how the
stated reasons did not in-fact meet the test.
36. According to Mr. Lekhi, satisfaction of the Court for
extension of the period of investigation is clearly recorded in
the impugned Order dated April 25, 2020. This satisfies the
fourth and final requirement of Section 43 D of UAPA. In this
regard, he has drawn my attention to the following: -
"In view of the submissions and the report of
learned Public Prosecutor indicating the
progress of investigation and the elicited specific
reasons of detention of the accused beyond the
period of 90 days the period of investigation for
further 90 days i.e. totaling to 180 days is
accordingly extended to conclude the
investigation as prayed for."
(emphasis supplied)
37. He stated it is apparent from the above that the Court
formed an opinion and the opinion so formed was predicated
on: a) submissions and b) Report of the learned APP, which was
duly examined to satisfy the requirements of law that: 1) what
the progress of investigation was; 2) the specific reasons for
detention of the accused beyond the period of 90 days; and 3)
Crl. M.C. 1475/2020 Page 29/54
the awareness that the extension was for the entire period of 180
days. He stated, the Court specifically records that Section 13 of
UAPA "was added to the case". The Court, therefore, was fully
aware of all relevant circumstances for passing the order
granting extension of period of investigation.
38. According to him, statutory bail can be granted only upon
default of completion of investigation. There being cause for
extension of period of investigation and the same being ordered,
the occasion to seek statutory bail disappears altogether.
39. On the plea of Ms. John that the Report itself merely
reproduced the Investigating Officer's application, Mr. Lekhi
stated the petitioner disregards the fact that the investigation is
the responsibility of the investigating agency which alone
would know the progress of investigation as also the need to
extend period for its completion. The APP cannot possibly alter
this fact and must necessarily refer and rely upon the same.
40. Further, the Prosecutor has to see whether the professed
requirement of the investigating agency is justified. This
justification, admittedly, cannot be based only upon the
Application of the Investigation Officer. According to him, in
the instant case the Report was not based on the Application of
the Investigating Officer alone. The progress of investigation is
recorded in the case diary and the APP admittedly examined the
same. In other words, the APP probed the stated requirement of
the investigating agency before endorsing the said requirement
by means of his Report. This is clearly apparent from the
following paragraph in the Prosecutor's Report.
Crl. M.C. 1475/2020 Page 30/54
"I have gone through the application filed by the
investigating officer under the provisions of UAPA.
I have applied my mind and gone through the case
file and investigation conducted so far. I am
satisfied with the investigation conducted so far
and there is no logic to file chargesheet without
conducting investigation on the aforesaid points."
(emphasis supplied)
41. In support of his submission, he relied on the judgment of
Hitendra Vishnu Thakur (supra) (para 23 at p. 631) as relied
upon by Ms. John wherein the following has been held: -
"Thus, for seeking extension of time under clause
(bb), the public prosecutor after an independent
application of his mind to the request of the
investigating agency is required to make a
report...(H)is report, as envisaged under clause
(bb) must disclose on the face of it that he has
applied his mind and was satisfied with the
progress of investigation and considered grant of
further time to complete the investigation
necessary." (emphasis supplied)
42. So, he says there was an independent application of mind
which is disclosed on the face of the Report and the satisfaction
of the Prosecutor that further time for investigation is necessary
is clearly evident.
43. Mr. Lekhi also relied on State of Maharashtra vs.
Surendra Pundlik Gadling (supra) to contend that the facts of
the said case were not as good as in the instant case. In
Gadling's case there was no report by the APP but two
applications, by the Police (one by the Investigating Officer and
the other by State of Maharashtra through the ACP, Pune city).
The later application only carried an endorsement by the APP.
Crl. M.C. 1475/2020 Page 31/54
The issue before the Court was whether the said documents
could be considered to be the report of the APP. The Court
acknowledged the infirmities in the two reports, but held (para
32): -
"A clarity in the form of a proper endorsement by
the public prosecutor that he had perused the
grounds in the earlier document submitted by the
IO and, thus, was satisfied that a case had been
made out for extension of time to complete the
investigation would have obviated the
controversy". (emphasis supplied)
44. According to Mr. Lekhi in the instant case, there is not
merely an endorsement by the APP but a report of the APP
himself. This report, moreover, shows due application of mind
to the statutory requirements it needs to address. He stated in
Gadling (supra), it was held that, even without such a report by
the APP, endorsement for on the IO's Application could suffice.
45. He stressed on the fact that in Gadling (supra) the Court
clearly held that the question in each case "is more of substance
than form." In the instant case the requirements of both form
and substance are satisfied.
46. Further the reliance by Ms. John upon a line in the
judgment that "there are additional and expanded grounds set
out in the second document" is utterly misconceived. He stated
this submission misses the basic point that the second document
was not the report of the APP but was an upgraded version of
the IOs application only filed through the ACP. As the
application contained additional and expanded grounds which
Crl. M.C. 1475/2020 Page 32/54
were endorsed by the APP, the Court referring to the principle
of substance and not form held that the requirements of Section
43D of UAPA are satisfied.
47. He stated, the judgment in Gadling (supra) cannot be
read to mean that the report of The APP should have additional
and expanded grounds, as is suggested by the counsel. Such a
reading disregards the facts of the case, in the context of which
alone the relied upon line can be read. The additional and
expanded grounds mentioned in the case were grounds in the
application by the investigating agency not in the Prosecutor's
report which was altogether absent. The endorsement on the
additional grounds as stated by the investigating agency was
treated as Prosecutor's report.
48. He stated the APP in the instant case having filed a report
which discloses due application of mind evidenced in his
examining the case file before endorsing the application of the
Investigating Officer, the legal requirement as contained both in
Hitendra Vishnu Thakur (supra) which has been followed in
Gadling (supra) is duly satisfied. It is conceded, correctly, that
the Prosecutor can sit with the Investigating Officer to examine
the case file. This is clearly an exercise to authenticate the
reasons in the application and double check the same before any
opinion is reached off their being borne out.
49. The examination clearly shows that the Prosecutor did
not act perfunctorily nor in a cursory manner and showed
instead a serious concern towards solemn responsibility vested
upon him. The moving of the application on the same day by
Crl. M.C. 1475/2020 Page 33/54
itself can never be a ground of invalidity as long as
requirements of law are satisfied and even the Supreme Court in
Gadling (supra) did not attribute to the dispatch shown in
making the application even a semblance of illegality.
50. He stated there is no infirmity whatsoever in the
impugned order and no cause for interference by this Court. The
justification for extension of period of investigation is clearly
established and consequently the entitlement of statutory bail is
eclipsed. In any event, the Order declining statutory bail (May
4, 2020) has not even been challenged despite the very grounds
raised in this petition being raised and rejected by that Order.
The petitioner has also correctly given up ground 'd' at pg. 6 of
the petition that "extension of the judicial custody of the
petitioner was not sought and hence he is entitled to statutory
bail", for the reason that Supreme Court in Hitendra Vishnu
Thakur (supra) has held that, the very consequence of the
extension is keeping of the accused in further custody. If the
custody of the petitioner is justified, there is no breach of
Article 21 of the Constitution and resultantly no prejudice has
been caused. The argument of prejudice was not even pleaded
or presented during the course of hearing. Mere denial of liberty
cannot give rise to legal grievance where deprivation is
warranted.
Reasoning and Conclusion
51. Having heard the learned counsel for the parties and
perused the record, at the outset I may state that the petitioner
has not challenged the addition of Section 13 of UAPA to the
Crl. M.C. 1475/2020 Page 34/54
list of offences, he is accused of. Having said that, the first
issue which arises for consideration is whether the impugned
order is vitiated for want of notice from the Court to the
petitioner on the application / report filed by the APP.
52. The plea of Ms. Rebecca John, learned Sr. Counsel
appearing for the petitioner is that the notice / production of
accused is not an empty formality, it must be to oppose the
application / report moved by the APP by relying on the
judgment of the Supreme Court in Hitendra Vishnu Thakur
(Supra). On the other hand, Mr. Lekhi pleaded that in view of
the judgment of the Supreme Court in Sanjay Dutt (Supra),
requirement of notice contemplated in Hitendra Vishnu
Thakur (Supra) is only production of the accused before the
Court and not written notice giving reasons for seeking
extension requiring the accused to show cause against it.
53. I agree with the submission of Mr. Lekhi. The
Constitution Bench in Sanjay Dutt (Supra) in Sub-para 2(a) of
Para 53 has stated as under:
"(2)(a) Section 20(4)(bb) of the TADA Act only
requires production of the accused before the court
in accordance with Section 167(1) of the Code of
Criminal Procedure and this is how the requirement
of notice to the accused before granting extension
beyond the prescribed period of 180 days in
accordance with the further proviso to clause (bb) of
sub-section (4) of Section 20 of the TADA Act has to
be understood in the judgment of the Division Bench
of this Court in Hitendra Vishnu Thakur. The
requirement of such notice to the accused before
granting the extension for completing the
investigation is not a written notice to the accused
Crl. M.C. 1475/2020 Page 35/54
giving reasons therein. Production of the accused at
that time in the court informing him that the question
of extension of the period for completing the
investigation is being considered, is alone sufficient
for the purpose."
54. Ms. John's plea in this regard was that the said finding of
the Supreme Court was on a concession made by the Counsel
for the petitioner in that case. I am unable to agree with this
plea of Ms. John for the simple reason that the Constitution
Bench in Sanjay Dutt (Supra) has clearly held that the
requirement of notice as propounded in Hitendra Vishnu
Thakur (Supra) is not a written notice giving reasons but mere
production informing that the question of extension of the
period for completing the investigation is being considered, is
alone sufficient for the purpose.
55. Ms. John had also relied upon the judgment of the
Supreme Court in Devinderpal Singh (Supra), Sanjay Kumar
Kedia (Supra), Mohd. Maroof (Supra) and even Surendra
Pundlik Gadling and Ors. (Supra) and State v. Shakul
Hameed (Supra) to reiterate her submission that the accused
should be given an opportunity of hearing and also file written
arguments opposing the requirement of extension of
investigation. In this regard, I may state in Devinderpal Singh
(Supra) the Supreme Court by referring to Sanjay Dutt (Supra)
has in Para 15 has stated as under:
"15. The Constitution Bench in Sanjay
Dutt's case (supra) did not express any contrary
opinion in so far as the requirement of the report
of the public prosecutor for grant of extension is
Crl. M.C. 1475/2020 Page 36/54
concerned or on the effect of the absence of such
a report under clause (bb) of Section 20(4), but
observed that the 'notice' contemplated in the
decision in Hitendra Vishnu Thakur's case before
granting extension for completion of investigation
is not to be construed as a "written notice" to the
accused and that only the production of the
accused at the time of consideration of the report
of the public prosecutor for grant of extension of
the period for completing the investigation was
being considered would be sufficient notice to the
accused."
56. From the above, it is clear that in Devinderpal Singh
(Supra), the Supreme court has reiterated what has been said by
the Constitution Bench in Sanjay Dutt (Supra).
57. In so far as the judgment in Sanjay Kumar Kedia
(Supra) is concerned, the said judgment does not refer to the
judgment in Sanjay Dutt (Supra), which settles the law, to
mean that the notice to the accused must not be construed as a
written notice but only production of the accused at the time of
consideration of the report of the APP for grant of extension of
investigation and informing the accused that the extension of
the period for completing the investigation is under
consideration. Similarly, in Mohd. Maroof (supra) there is no
reference to the judgment of Sanjay Dutt (supra). Reliance on
Surendra Pundlik Gadling and Ors. And Shakul Hameed
(supra) by Ms. John shall not help the case of the petitioner as
non-issuance of notice to the accused / purpose of issuance of
notice were not the issues in these cases.
Crl. M.C. 1475/2020 Page 37/54
58. So, it follows that the plea of Ms. John that an accused
has a right to oppose the application / report moved by the APP
is not sustainable. This position of law is also seen from the
Judgment of this Court in the case of Syed Shahid Yousuf v.
NIA (Supra) wherein, in Para 42, this Court has held as under:
"42. As regards providing the Appellant with
copies of the reports of the PP, the Court is
inclined to agree with the learned ASG that at the
stage of extension of time for completion of
investigation or extension of the period of
detention in terms of the proviso to section 167 Cr
PC, the Appellant cannot ask to see the reports of
the PP. Those reports, like the case diary
maintained under section 174 Cr PC, are to
satisfy the Court about the progress of
investigation and the justification for seeking
extension of time to complete the investigation."
59. The further plea of Ms. John was that the information
given by the IO to the counsel for the petitioner on April 24,
2020 that the investigating agency intends to move an
application under Section 43 of the UAPA is not a substitute for
a notice to be issued by the Court on an application / report filed
by the APP.
60. To answer the submission, it is necessary to look /
consider the messages exchanged by the IO and the counsel for
the petitioner as reproduced in para 8 above. It is seen from the
messages that it was only at 10.50 am, on April 25, 2020 that
the counsel informed the IO in the manner depicted therein. It
was represented that until notice is issued to the accused on the
application, she cannot appear as she has no instructions.
Crl. M.C. 1475/2020 Page 38/54
61. There is no dispute that the counsel to whom the
information was given had filed Vakalatnama on behalf of the
petitioner before the Court below and was representing him in
the proceedings since February, 2020, as is clear from the
ordersheet dated February 12, 2020 (Annexure P5 to the
petition). The very filing of the Vakalatnama suggests authority
having been given to the counsel to represent the petitioner in
the proceedings before the Court and to do all acts and things
which may be necessary to be done for the progress and in the
course of the prosecution of the case.
62. In fact, I notice, the Vakalatnama filed in these
proceedings was also executed by the petitioner on February 18,
2020 while he was in custody in Tihar Jail in favour of the same
counsel. On the strength of the information, the counsel could
have presented herself before the Court only to know the
outcome of the application / report, which may include, the
Court on presentation of the application / report if not satisfied
with the same, rejecting the same and not extending the time for
investigation. The appearance of the counsel would have been a
sufficient representation on behalf of the petitioner and this fact
is also acknowledged by the counsel for the petitioner, as is
seen in the table at para 10, where it is stated that notice to the
accused through production or to the accused / counsel through
Court is the standard in law. That apart, even this Court, in
Mohd. Maroof (supra) by finding that notice has been issued
by the Court to the counsels, and the accused could not be
produced in the Court, has not found fault, in the order,
Crl. M.C. 1475/2020 Page 39/54
extending the time for investigation. So it follows, the
appearance of the counsel for the petitioner being sufficient
representation while considering application / report of the
APP, whether it is on a notice issued by the Court or on an
information from the Investigating Officer, is inconsequential.
63. The fact that the counsel of the petitioner was in the
knowledge about the impending application / report seeking
extension of time for completion of the investigation beyond 90
days and a written notice giving reasons is not the requirement
of law, I find, there is a compliance of principles of natural
justice. Even if notice was issued to the petitioner, he would
have authorized his counsel to represent him only to know that
an application / report being considered for extension of time
for completion of investigation. The plea that notice could have
been issued to the petitioner for his presence on April 27, 2020,
which was the 90th day is not appealing, as the same would not
have been required, had the counsel been present on April 25,
2020 and even otherwise, his presence even through video
conferencing would be for him to only know about the filing of
the application / report for extension of time for completing the
investigation is being considered. In that sense no prejudice
has been caused to the petitioner in the facts.
64. The plea of Ms. John that the information given by the IO
was even before the application is filed with the APP to enable
him to apply his mind and the investigating agency could not
have assumed on April 24, 2020 itself, that the APP would
mechanically prepare a report for consideration of the Court and
Crl. M.C. 1475/2020 Page 40/54
as such, information cannot be considered as a notice, is also
not appealing as the plea is an afterthought, as the counsel was
not privy to such information till she inspected the file on April
27, 2020, (as stated by her) or till the filing of the status report
in these proceedings. The plea is primarily to find fault with the
impugned order, which according to me is not vitiated on the
ground of want of notice by the Court.
65. The reliance placed by Ms. John on the judgment of
Devinderpal Singh (Supra) is misplaced as it is distinguishable
on facts, inasmuch as in that case there was (i) no report of the
APP and (2) the accused was not produced. Whereas, in this
case there is a report of the APP and despite notifying the
counsel was not present.
66. In so far as the plea of Ms. John that the report of APP
under Section 43D (2) (b) does not satisfy the requirement of a
report under that Section is concerned as held by the Supreme
court in State v. Shakul Hameed Yusuf (Supra), the ingredients
for extension of investigation under Section 43D(2)(b) are the
following:
(1) It has not been possible to complete
investigation within the period of 90 days;
(2) A report to be submitted by the Public
Prosecutor;
(3) The said report indicating the progress of
investigation and the specific reasons for
detention of the accused beyond the period of
90 days;
Crl. M.C. 1475/2020 Page 41/54
(4) Satisfaction of the court in respect of the
report of the APP.
67. In the case in hand, the APP in the application / report
has stated "following points is still pending and required time to
complete the same". The application / report also states "since
24/03/2020 due to global COVID-19 Pandemic a lockdown has
been imposed due to which the pace of investigation was
seriously disrupted".
68. The aforesaid clearly depicts the reasons for not
completing the investigation in 90 days. Further, the document
at Page 10 of the supplementary status report filed in the
petition is with the subject matter "application and report for
under Section 43 D (2)(b). The unlawful activities (prevention)
Act, 1967, extension of the period of investigation for further 90
days." The same was filed in the court of Sh. Gurvinder Pal
Singh who passed the impugned order. So, it follows a report
was submitted by the APP.
69. The application / report also discloses the progress made
in the investigation and the reasons for extending the
investigation beyond a period of 90 days. The relevant part is
reproduced as under:-
"XXXX XXXX XXXX"
During the course of investigation, accused Sharjeel
Imam was arrested from Jahanabad, Bihar on
28.01.2020, produced in the court and transit
remand was obtained. On 29.01.2020, accused
Sharjeel §mam was produced in the court of Shri
Purshotam Pathak, Learned Chief Metropolitan
Crl. M.C. 1475/2020 Page 42/54
Magistrate, Patiala House Court, New Delhi and
police custody of accused was sought.
During the course of investigation, accused Sharjeel
Imam had disclosed that on 13.12.2019 and
16.01.2020 he had delivered the alleged speeches at
lamia, Delhi and Aligarh Muslim University,
Aligarh, Delhi respectively. He further disclosed
that he along with his associates of JNU had created
a WhatsApp group in the name 'Muslim students of
JNU'. He through the group united and mobilized
Muslim students of JNU and had convinced them
prepared to spread message among other Muslims
that the Bills are anti-Muslim and biased in nature.
He also started spreading information that
government wants to keep Muslims in 'Detention
center' under the garts of CAB and NRC. His JNU
friends were the core member of the group. Accused
Sharjeel Imam and these core group members
arranged money to get printed the pamphlets to be
distributed in Muslim localities to mobilise them
against CAB/NRC. Thereafter, they prepared and
got printed the pamphlets in Hindi and Urdu.
Accused Sharjeel lmam had himself got printed the
said pamphlets from a shop situated at Munirka
Village. Later, these pamphlets were distributed by
them in various Mosques in Delhi and its adjoining
area. Apart from these two pamphlets, one more
pamphlet was distributed by accused Sharjeel Imam
urging them to join the Jamia Protest on
13.12.2019. During the course of investigation,
these three pamphlets were later recovered from his
e-mail account.
During the course of investigation, the alleged video
of his speech dated 13.12.2019 delivered in Jamia,
Delhi downloaded from his Google drive and
transcript of the same was prepared. Another
alleged video of speech dated 16.01.2020 was also
downloaded from the Facebook page of 'The
Crl. M.C. 1475/2020 Page 43/54
Companion' and transcript of the speech was also
prepared.
During the course of investigation, letters were also
sent to Facebook, Twitter to obtain certify copy of
videos. Letter was also sent to Cert-In to provide
data in respect of the alleged videos. Desktop,
Laptop and mobile phone of accused Sharjeel Imam
were also seized and sent to FSL, Rohini, Delhi to
extract data from it.
Voice sample of accused Sharjeel Imam has also
been obtained to compare the voice of accused with
the voice in alleged videos. Later on, the voice
sample and the alleged videos were sent to CFSL,
CBI Complex, CGO Complex, Lodhi road, New
Delhi for analysis and comparison of voice and
results have been obtained which is 'positive'.
During the course of Investigation, CDR analysis of
mobile number of accused Sharjeel Imam i.e.
8826929526 was also done and the movement of
accused Sharjeel Imam as per his disclosure
statement is very much corroborated.
During the course of investigation, the speeches
delivered by the accused were carefully gone
through and it emerged that the accused is indulging
in exhortation of a particular religious community
on religious lines, invoking religion. It also emerges
that in such exhortation by his words spoken in the
congregation, the accused incited the members of
the group comprised of a particular religious
community as also the individuals assembled to hear
him, calling upon them to disrupt the sovereignty of
India. India's sovereignty is secured by its
Constitution and any attempt to generate
disaffection towards the Constitution is equivalent to
disrupting the sovereignty of India. As per speech
dated 13.12.2019, Constitution is worthy of
rejection, being fascist document. only to be used for
taking benefit in court and wherever it may
Crl. M.C. 1475/2020 Page 44/54
beneficial. The innuendo is that on all such occasion
where the Constitution is not securing any benefit to
a particular religious community, it is liable to be
ignored and rejected. Accused, in his speech further
exhorts the audience of a particular religious
community to disrupt the day to day life in all such
cities where Muslims are in substantial number, in
an organized manner. The extracts of the speech
clearly reflects that accused has committed, advised
and incited the commission of unlawful activity.
Hence, Sec-13 UAPA was added in the case.
However, investigation w.r.t. following points is still
pending and required time to complete the same:-
1. Since, 24/03/20 due to Global COVID-19
pandemic a lock down has been imposed, due to
which the pace of investigation was seriously
disrupted.
2. Members of WhatsApp group 'Muslim
students of JNU' are to be interrogated.
3. The person who had provided his accounts to
arrange for money to get printed the pamphlets is
yet to be interrogated.
4. One Arshad Warsi from Jamia is required to
be interrogated in depth to establish link, if any,
between 'Muslim students of JNU' (Whatsapp group)
and students of Jamia.
5. It is pertinent to mention here that there was
series of riots in Delhi after the speech of
13.12.2019 delivered by accused Sharjeel Imam at
Jamia, Delhi and the same strategy (road
block/Chakka lam as suggested by accused} was
followed. To verify the role of accused Sharjeel
Imam and to unearth the whole conspiracy, if any.
6. After the speech of 16.01.2020, many protest
sites started emerging in city, roads were blocked
and tents were erected to sit in to protest against
Crl. M.C. 1475/2020 Page 45/54
CAA/NRC. These sites were later on become the
initiation of riots in Delhi in February, 2020. To
establish the larger conspiracy and persons behind
it.
7. Friends of accused Sharjeel lmam from Jamia
are to be interrogated.
8. Person who initially videoed the speech at
Jamia is yet to identify.
9. Result in respect of hard disk of desktop,
laptop and the mobile phone is yet to be received
from FSL, Rohini, Delhi and analysed.
10. Part of result in respect of the alleged videos
is yet to be received from CFSL, CBL Lodhi road,
Delhi.
11. Reply from Facebook, Twitter and Cert-In is
yet to be received and analysed.
12. Prosecution sanctions u/s 196 Cr.P.C. is
waiting.
13. Prosecution sanction u/s 45 UAPA is to be
obtained.
14. Accused shall be again taken on police
custody remand for collaboration of facts.
I have gone through the application filed by the
Investigating Officer under the provision of UAPA. I
have applied my mind and gone through the case
file and; investigation conducted so far. I am
satisfied with the investigation conducted so far and
there is no logic to file the charge sheet without
conducting investigation on the aforesaid points.
In view of provision made under section 43 of
UAPA, extension for the period of further 90 days
may be given to investigating agency to conclude the
investigation."
Crl. M.C. 1475/2020 Page 46/54
70. That apart, I also find that the Court while granting the
extension of investigation has satisfied itself with the
application / report of the APP about the reasons / grounds on
which the extension of time for doing investigation was sought.
The same is clear from the following Para of the impugned
order:
"In terms of UAPA, the time available with the
investigating agency for completion of
investigation is 90 days. Section 43-D(2) of
UAPA inter alia provided that if it is not possible
to complete the investigation within the aforesaid
period of 90 days, then upon 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
90 days, after satisfaction, the court can extend
the period for investigation to 180 days. It has
been submitted that due to Global COVID-19
Pandemic, a lock down has been imposed since
24.03.2020 due to which the pace of investigation
was seriously disrupted; members of Whats App
group "Muslim Students of JNU" are to be
interrogated; the persons who provide their
accounts to arrange for money to get printed the
pamphlets, are yet to be interrogated; friends of
accused Sharjeel Imam are also to be
interrogated; person who initially videoed the
speech at Jamia is yet to be identified; result in
respect of hard disk of desktop, laptop and the
mobile phone is yet to be received from FSL,
Rohini, Delhi and analysed; result in respect of
the alleged videos is yet to be received from
CFSL, CBI, Lodhi Road, New Delhi; reply from
Facebook, Twitter and Cert-In is yet to be
received and analysed; requisite sanctions are
also to be obtained; conspiracy is to be
unearthed.
Crl. M.C. 1475/2020 Page 47/54
In view of the submissions and the report of
learned Public Prosecutor indicating the progress
of investigation and the elicited specific reasons
for detention of the accused beyond the period of
90 days, the period of investigation for further 90
days i.e., totalling to 180 days is accordingly
extended to conclude the investigation, as prayed
for.
The application is disposed of accordingly.
Copy of the order be given to IO and the learned
Public Prosecutor."
71. Now I come to the plea of Ms. John that the application /
report itself does not show independent application of mind.
She qualifies her submission by stating (1) the report was
identical to the application of the investigating authority
including all spellings and grammatical errors of words and
sentences with a change in heading and an additional line
stating that the prosecution is satisfied, using the language of
Section 43D. (2) Mere reproduction of the application of the
investigating authority and recording his satisfaction does not
demonstrate application of mind. This submission of Ms. John
is also not appealing. On the application of the IO, the APP has
finalized the application / report under his signatures (page 10
of the supplementary report) by saying the following:-
"I have gone through the application filed by the
Investigating Officer under the Provision of
UAPA. I have applied my mind and gone
through the case file and investigation conducted
so far. I am satisfied with the investigation
conducted so far and there is no logic to file the
Crl. M.C. 1475/2020 Page 48/54
chargesheet without conducting investigation on
the aforesaid points.
In view of the provision made under Section 43
of the UAPA extension for the period of further
90 days may be given to the investigating agency
to conclude the investigation."
72. The aforesaid demonstrate application of mind by the
APP by going through the case file and the investigation
conducted till that time. In Hitendra Vishnu Thakur (Supra),
the Supreme Court in Para 23 has held as under:
"Thus, for seeking extension of time under
clause (bb), the public prosecutor after an
independent application of his mind to the
request of the investigating agency is required
to make a report...(H)is report, as envisaged
under clause (bb) must disclose on the face of it
that he has applied his mind and was satisfied
with the progress of investigation and
considered grant of further time to complete the
investigation necessary."
(emphasis supplied)
73. Mr. Lekhi is justified by relying upon the judgment of the
Supreme Court in State of Maharashtra v. Surendra Pundlik
Gadling (Supra) to contend that the facts in this case are better
than the facts in Gadling's case inasmuch as there was no report
of the APP but two applications by the police and it is the latter
application which had been endorsed by the APP, still the court
upheld such a report.
74. The plea of Ms. John that in Gadling's case (supra) there
are additional and expanded grounds in the second document is
also not appealing as the second document was still an
Crl. M.C. 1475/2020 Page 49/54
application by the police and not a report by the APP. In any
case, the Supreme Court has by noting the additional and
expanded grounds which were endorsed by the APP held that it
is the substance and not form which matters. It finally went on
to hold that the report satisfies the requirement of Section 43 of
UAPA.
75. In this case, it is not an endorsement by the APP, but an
application / report was filed by the APP after going through the
case file and investigation conducted so far showing
independent application of mind. Insofar as reliance placed by
Ms. John on the judgment of this Court in Paramjeet Singh
Sawhney (supra) in support of her submission that reproduction
of language of Section 43(D) of UAPA shows non application
of mind is totally misplaced. In the said judgment the facts are
that prosecution of the petitioner as a 9 year old boy when he
was minor and not in charge of the firm was initiated. Despite
that the respondent in the complaint claim that he was in charge
of the firm and mechanically reproduced in the complaint the
wordings of Section 278B. It was in that context, the Court
held that there was no application of mind. Suffice would it be
to state the said judgment has no applicability to the facts of this
case.
76. In so far as the plea of Ms. John that there were no
compelling reasons for extension of custody as all the material
for investigation was available with the respondent since the
petitioner's police custody and not enough seems to have been
done since then i.e. for 56 days before the lockdown was
Crl. M.C. 1475/2020 Page 50/54
imposed is also not appealing. In this regard, the primary
submissions of Ms. John were (i) the pace of investigation
could have been slowed down because of COVID-19 if the pace
was at regular speed in 56 days of custody; (ii) in view of the
judgment of the Supreme Court in the case of S. Kasi (supra),
COVID-19 cannot be a ground to claim delay in investigation
and deny the accused the right of statutory bail; (iii) the report
of the APP does not demonstrate whether efforts were made to
interrogate the persons apparently yet to be interrogated; steps
taken to call them to join the investigation etc; (iv) as per
Section 161 Cr.PC statement of witnesses can be recorded
through video conferencing; (v) the witnesses to be examined
appears to be the residents of Delhi and speeches were available
before the registration of FIR.
77. On the other hand, the submissions of Mr. Lekhi were (i)
that the report of the voice sample of the petitioner was received
only on April 20, 2020 and thus linking him to the speeches of
December, 2019 and January, 2020, (ii) upon receipt of the
report the occasion to verify the role of the petitioner and
unearth the whole conspiracy with regard to riots after his
speech which brought Delhi to grinding halt became clearly
justified; (iii) the petitioner did not dispute the addition of
Section 13 of UAPA and the need for police remand and he also
did not contest the reasons stated above, which by themselves
justify the need for extending the period of investigation; (iv)
for much of the period after the arrest of the petitioner, there
was a lockdown between March 25, 2020 to May 17, 2020. As
Crl. M.C. 1475/2020 Page 51/54
a result, the pace of the investigation was disrupted. So, there
are compelling reasons seeking extension of the investigation
beyond 90 days.
78. I have in para 69, above reproduced the nature of
investigation carried out till the application / report was filed
and the points still pending to be carried out by the investigating
authority, on perusal thereof, the grounds being justifiable /
good, the decision to extend the period for carrying out
investigation cannot be faulted.
79. The reliance placed by Ms. John on the judgment of S.
Kasi (supra) is not applicable to the facts of this case. In the
said case, the Supreme Court was concerned with an impugned
order of the High Court which by referring to an order of the
Supreme Court dated March 23, 2020 in a Suo Moto petition
No.3/2020 inter alia held that the Supreme Court having
eclipsed all the provisions prescribing period of limitation until
further orders, which includes the time prescribed for
completing the investigation, denied the bail to the appellant.
The said issue is at variance with the issue in this case, which is
primarily for extension of time period for completing the
investigation under UAPA and because of the impugned order,
the period of filing of charge sheet has been extended. In fact,
S. Kasi's case is governed by provisions of Cr.PC and not
UAPA. The judgment would be relevant if the prosecution
does not file charge sheet within 180 days.
80. Insofar as the submission of Ms. John that the filing of
the application / report on 88th day is clearly malafide only to
Crl. M.C. 1475/2020 Page 52/54
deny the statutory bail to the petitioner, is also not convincing.
This I say so because the addition of Section 13 of UAPA to the
offences has not been contested. The UAPA provides for
extension of the period of investigation for a further period of
90 days i.e. totalling 180 days. Mr. Lekhi's submission was
that the intent of the investigating authority is to complete the
investigation in original time period. It is only, when the period
prescribed for completing the investigation expiring that an
application for extension of the period of investigation would
lie and further moving the application / report much in advance
would be clearly premature and the Court could comment that
sufficient period is still available for completing the
investigation and may reject the same. It is only when despite
efforts, investigation could not be completed in time, that the
investigating authority approached the Court for extension. In
any case there is no bar in law for moving the application on the
88th day, are appealing.
81. On the plea of Ms. John that there have to be compelling
reasons seeking extension of time for completing the
investigation as held by the Supreme Court in the case of
Sanjay Kumar Kedia (Supra), Mr. Lekhi is justified in
contending the compelling reasons to mean good / sufficient
reasons justifying the extension of the investigation beyond a
period of 90 days. This Court has already held there are good /
justifiable grounds for extending the investigation.
Crl. M.C. 1475/2020 Page 53/54
82. In view of my above conclusion, the present petition filed
by the petitioner is devoid of merit and is as such dismissed.
V. KAMESWAR RAO, J
JULY 10, 2020/jg
Crl. M.C. 1475/2020 Page 54/54
