Delhi High Court
Delhi High Court
Litigation News

UAPA accused entitled to be heard to oppose extension of period of investigation but not entitled to prosecutor's report: Delhi HC

The judgment was passed by a Single Judge Bench of Justice Vibhu Bakhru in a petition preferred by Delhi riots accused, Khalid.

Aditi Singh

The Delhi High Court has held that an accused under Unlawful Activities (Prevention) Act, 1967 has the right to be heard to oppose the extension of detention and the time for completion of the investigation but he/she is not entitled to a copy of the application or the report furnished by the public prosecutor under Section 43D of the Act. (Khalid vs State)

Undeniably, the accused is at a disadvantage since the accused would be unable to address the specific grounds on which the extension of time is sought and to this extent, the hearing afforded to the accused may be of limited value. However, this is unavoidable so as to ensure that the investigation is not hampered or frustrated in any manner.
Delhi High Court has said.

The judgment was passed by a Single Judge Bench of Justice Vibhu Bakhru in a petition preferred by Delhi riots accused, Khalid.

While challenging the extension of period of investigation and his detention by the trial court, Khalid had argued that the order was passed in violation of the principles of natural justice.

It was submitted that Khalid was neither provided with a copy of the application preferred by Delhi Police for extension of the period of investigation and the Prosecutor's report nor was he afforded a meaningful opportunity to be heard in opposition of the application.

In response, the Delhi Police argued that in law, there was no requirement of issuing any written notice and therefore, there was no reason to supply the application or the report.

Delhi Police submitted that the necessary ingredients for seeking extension of time for completion of the investigation were set out in the UAPA and judgments passed by the Supreme Court and the same were fully complied with.

In the present case, Khalid was anyway given full opportunity to oppose the application for extending the time for completion of the investigation, it was added.

After recording the submissions of the parties, the Court noted that by virtue of the proviso to Section 167 CrPC, as introduced by virtue of Section 43D(2)(b) UAPA, the detention of a UAPA accused could be extended to a period of one hundred and eighty days.

However, the same could be done only if the court concerned is satisfied with the report of the public prosecutor on the progress of the investigation and the specific reasons for the detention of the accused beyond the period of ninety days, it added.

The Court thereafter analysed the judgment of the Supreme Court in Hitendra Vishnu Thakur to state that a court was proscribed from extending the judicial custody/period of investigation beyond the period specified without a notice to the accused.

It further clarified that it was wrong to infer that in Sanjay Dutt's case, the Constitution Bench of the Supreme Court had overruled the decision in Hitendra Vishnu Thakur.

On the contrary, the (Supreme) Court reiterated the requirement of issuing notice of the application seeking extension of custody/time for completion of the investigation beyond the period of ninety days to the accused. However, the Supreme Court qualified that such notice [in terms of the decision in Hitendra Vishnu Thakur (supra)] to mean a notice to the accused which requires his production in Court in accordance with Section 167(1) of the Cr.PC.
Delhi High Court

The Court noted that as per Sanjay Dutt, notice to the accused did not mean ‘written notice’ but could even mean his production before court at the time when the plea for extension of the period of investigation is being considered.

In view of the judgments passed by the Supreme Court, the Court held that it could not be said that there was no requirement to afford an opportunity to be heard to the accused.

The decision to extend the judicial custody of an accused seriously affects the accused and the principles of natural justice clearly require that such an accused be granted the right to oppose the passing of any such order.
Delhi High Court said.

The Court nonetheless added that this right is curtailed by the necessity to conceal the reasons for an extension from the accused and not make it public.

Observing that at this stage, the investigation is incomplete, the Court stated,

In order to ensure the efficacy and secrecy of investigation, it is necessary to conceal the public prosecutor’s report on the progress of investigations and also the reasons why it has remained incomplete.. Disclosure of such information may provide an opportunity for tampering with evidence, which is yet to be collected.

In view of the case laws on the issue, the Court reiterated that the public prosecutor's report was like a case diary under Section 174 CrPC which are given to the court concerned to show the need to extend the period of investigation.

"In view of the above, the question whether the petitioner is entitled to a copy of the application or the report furnished by the public prosecutor must be answered in the negative.", the Court said.

In the present case, the Court noted that the requirements of issuing notice and providing the opportunity to be heard were satisfied.

Further, the trial court was given the case diaries for its satisfaction, it said.

In view of the above, the Court held that petition deserved to be dismissed.

Khalid was represented by Advocates Bhavook Chauhan, Rajat Kumar, Harsh Bora, Praavita Kashyap, Tushar Yadav.

Delhi Police was represented by ASG Aman Lekhi with SPP Amit Mahajan, SPP Rajat Nair and Advocates Ujjwal Sinha, Shantnu Shara, Dhruv Pande, Aniket Seth, Samarth Khanna.

Read the Judgement:

Khalid vs State.pdf
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