In a well-written, well-worded, well-articulated, well-analysed, well-reasoned, well-balanced and well-substantiated judgment titled Union of India v. Vivekanandan @ Vivek in Criminal Appeal Nos. 272 and 275 of 2021 that was reserved on June 18, 2021 and then finally delivered on June 28, 2021, the Madras High Court upheld the decision of a lower Court, granting default bail to a man accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) over an alleged offensive Facebook post. It must be apprised here that a two Judge Division Bench of Madras High Court comprising of Justice PN Prakash and Justice R Pongiappan also admonished the investigating agencies for their lackadaisical approach in handling the case. The Court without mincing any words opined “In this case, we find that there was absolutely no diligence at all” and accordingly refused to interfere with the impugned bail order. Very rightly so! All courts must rule accordingly as the Madras High Court has ruled so commendably in this notable case!
We all saw how recently Father Stan Swamy who is an 84-year-old Jesuit priest and tribal rights activist was arrested and jailed last year under the draconian anti-terror law UAPA in connection with the Elgar Parishad case. Mary Lawlor who is a United Nations Special Rapporteur for human rights defenders tweeted that, “The news from India today is devastating. Human Rights Defender (HRD) and Jesuit priest Father Stan Swamy has died in custody, nine months after his arrest on false charges of terrorism. Jailing HRDs is inexcusable.” Jharkhand and Kerala Chief Ministers Hemant Soren and Pinarayi Vijayan as also Rahul Gandhi and Priyanka Gandhi Vadra posted messages of tributes.
What police forgets is Father Stan Swamy is not Lt Col Prasad Shrikanth Purohit who is not just young about 49 years old but also was trained rigorously in Officers Training Academy and faced the hardships of Army life due to which he was able to face all sorts of ruthless torture perpetrated by an Army Intelligence Officer Col RK Srivastav along with some Mumbai ATS officers like late Hemant Karkare, Param Bir Singh (the current Thane Police Commissioner) and who was recently embroiled in a huge controversy and we saw how the Apex Court chided him for not trusting the very organization that he had served for 30 years and advised him that “those who live in glass houses should not throw stones on others” as also some other Maharashtra ATS officers like Mohan Kulkarni (then ACP-Mumbai in ATS) and Arun Khanvilkar (then Senior Inspector of ATS) for brutally torturing him for weeks pre and post recording of the arrest on November 5, 2008 as Lt Col Purohit disclosed in his letter to NHRC. Even Times Now news channel had reported this shocking letter soon after it was out in the open. The shocking 24-page letter written by him to National Human Rights Commission in December 2013 which one can read from the website www.pgurus.com exposes shocking details of how terribly he was tortured for weeks by a Military Intelligence Officer and Maharashtra Police ATS team in October and November 2008 so that he could own up wrongly as being the mastermind behind terror attacks that happened in those times as in Malegaon! Lt Col Purohit survived nine years of jail facing merciless torture which is nothing but a miracle and it is due to his guts, gumption and gall to face everything most boldly but Father Stan Swamy could not survive even nine months because he was not trained in some Army training camp for months and months together unlike Lt Col Purohit nor was he young! Still one has to concede that what Lt Col Purohit braved – illegal arrest which has been questioned even by former Army Chief Gen Shankar Roy Choudhary when Col Purohit was given bail and illegally detained, illegally arrested and illegally tortured and illegally kept in jail for 9 long years without even charge sheet not being filed against him which is most shocking, most disgraceful and must be a real eye opener for our law makers not to trust police blindly and punish them most strictly when they dare to take a senior Army Officer for granted and violates his rights as an Army Officer and as a human being for more than 9 years but right now what we see are that they have escaped with impunity and have not been held accountable at all but on this UN and EU as also human rights activists in our country and world over maintain a pin drop stoic silence!
Anyway, coming back to the case at hand, Justice R Pongiappan who authored the common judgment for himself and Justice PN Prakash sets the ball rolling by first and foremost observing in para 1 that, “Calling into question the legality and validity of the two orders, both dated 05.05.2021, passed by the Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Chennai at Poonamallee (for brevity “the Special Court at Poonamallee”) in Crl.M.P.Nos.168 and 181 of 2021, in and by which, the prayer for police custody of the respondent (Vivek/A.1) has been rejected and bail has been granted to him, respectively, the Inspector of Police, National Investigating Agency, Chennai, has filed these two criminal appeals.”
Before para 1, it is mentioned at the outset that, “Prayer in Crl.A.No.272 of 2021: Criminal Appeal preferred under Section 21 of the National Investigation Agency Act, to set aside the order dated 05.05.2021 passed in Crl.M.P.No.168 of 2021 on the file of the learned Special Judge for NIA Act Cases, Poonamallee and to give the respondent for police custody. Prayer in Crl.A.No.275 of 2021: Criminal Appeal preferred under Section 21 of the National Investigation Agency Act, to set aside the order passed in Crl.M.P.No.181 of 2021 on the file of the learned Special Judge for NIA Cases, Poonamallee dated 05.05.2021 and cancel the bail granted to the respondent.”
To put things in perspective, the Bench then puts forth in para 2 that, “The legal issue raised by the National Investigating Agency in these two criminal appeals lies in a very narrow compass, to decide which, it may be necessary to refer to a few dates and events.
2.1 Vivekanandan @ Vivek (A.1)/respondent allegedly uploaded an offensive post in his Facebook account, for which, the Inspector of Police, Thallakulam Police Station, Madurai, registered a case in Cr.No.1916/2020 for the offences under Section 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (for short “the UAP Act”) and Section 505(1)(b) IPC against Vivek (A.1) and arrested him on 16.12.2020, produced him before the Judicial Magistrate No.II, Madurai, who remanded him in custody. Seemingly, the Judicial Magistrate No.II, Madurai, has been placing Vivek (A.1) in judicial remand from time to time under Section 167(2) Cr.P.C.
2.2 For the offences alleged in the FIR, the time period prescribed for default bail under Section 167 Cr.P.C. is 90 days and accordingly, the 90th day fell on 15.03.2021. While that being so, by order dated 12.03.2021 of the Central Government, the investigation of the case in Thallakulam P.S. Cr.No.1916 of 2020 was entrusted to the National Investigating Agency (for short “the NIA”) and the NIA re-registered the case on 14.03.2021 as RC/07/2021/NIA/DLI in accordance with their procedure under Section 13(1)(b) of the UAP Act and Section 505(1)(b) IPC. However, the Inspector of Police, Thallakulam Police Station was proceeding with the investigation of the case in terms of Section 6(7) and 10 of the NIA Act.
2.3 Seemingly, another FIR in Cr.No.2594 of 2020 was registered against Vivek (A.1) in which he was arrested by the State police and was being remanded in custody from time to time.
2.4 On 15.03.2021, the Public Prosecutor representing the Thallukulam police, filed an application before the Principal Sessions Court, Madurai, under Section 43(D)(2) of the UAP Act in Cr.No.1916 of 2020 and Cr. No.2594 of 2020, since, under the UAP Act, the trial Court is the Court of the Principal District and Sessions Judge.
2.5 It may be pertinent to state here that Vivek (A.1) was being remanded from time to time in Cr.No.1916 of 2020 by the Judicial Magistrate No.II, Madurai, whereas, the Public Prosecutor representing the local police had filed an application under Section 43(D)(2) of the UAP Act for remand extension beyond 90 days before the Principal District Court, Madurai, where, the records of the case itself were not available.
2.6 For both the cases, viz., Cr. 1916 of 2020 and Cr. No. 2594 of 2020, the Public Prosecutor filed a common petition under Section 43(D)(2)(b) of the UAP Act for extension of period of remand from 90 days to 180 days.
2.7 The Principal District Judge, Madurai, returned the petition on the ground that individual reports should be filed by the Public Prosecutor under Section 43(D)(2)(b) of the UAP Act for each crime number.
2.8 Accordingly, on 16.03.2021, the Public Prosecutor filed two petitions (reports) under Section 43(D)(2)(b), in which, notice was ordered on Vivek (A.1). It is alleged that Vivek (A.1) refused to receive the notice in the prison when the police tried to serve it on him and therefore, it was returned with the endorsement that he refused to receive it.
2.9 Since charge sheet was not filed either by the State police or by the NIA on or before 15.03.2021, Vivek (A.1) filed a petition for default bail under Section 167(2) Cr.P.C. before the Judicial Magistrate No.II, Madurai, who returned the petition on the ground that the case has been transferred to the NIA.
2.10 The petition that was filed by the Public Prosecutor for the local police before the Principal Sessions Court, Madurai under Section 43(D)(2)(b) of the UAP Act in Thallakulam P.S. Cr.No.1916 of 2021, seeking extension of remand period from 90 days to 180 days, was taken on file as Crl.M.P. No.1924 of 2021 and the same was allowed vide order dated 19.03.2021.
2.11 In the State of Tamil Nadu, the Sessions Court for Bomb Blast Cases in Poonamallee has been designated as the Special Court under the NIA Act. Therefore, the records in Thallakulam P.S.Cr.No.1916 of 2021 were transferred from the Court of the Judicial Magistrate No.II, Madurai, to the file of the Special Court at Poonamallee on 08.04.2021. Further, the remand proceedings of Vivek (A.1) was also transferred from the file of the Judicial Magistrate No.II, Madurai, to the Special Court at Poonamallee.
2.12 Before the Special Court at Poonamallee, the NIA filed an application on 20.04.2021 for police custody of Vivek (A.1) under Section 167 Cr.P.C., which was taken on file as Crl.M.P. No.168 of 2021.
2.13 Vivek (A.1) also filed an application under Section 167(2) Cr.P.C. on 26.04.2021 in the Special Court at Poonamallee, which was taken on file as Crl.M.P. No.181 of 2021, in which, he submitted that the period of 90 days had expired on 15.03.2021 itself; he filed a bail application on 17.03.2021 before the Judicial Magistrate No.II, Madurai, where he was being remanded from time to time, but, the Magistrate did not pass any orders on the ground that the case was transferred to the NIA, thereby depriving him of his indefeasible right to be released on bail.
2.14 The Special Court at Poonamallee heard Crl.M.P. No.181 of 2021 filed by Vivek (A.1) seeking bail and Crl.M.P. No.168 of 2021 filed by NIA seeking police custody and passed two separate orders on 05.05.2021 granting bail to Vivek (A.1) and dismissing the police custody application filed by the NIA on the ground that bail has been granted to Vivek (A.1).
2.15 While Crl.A. No. 275 of 2021 has been filed against the order dated 05.05.2021 passed in Crl.M.P. No.181 of 2021, Crl.A.No.272 of 2021 has been filed against the order dated 05.05.2021 passed in Crl.M.P. No.168 of 2021.”
Be it noted, the Bench then makes it clear in para 4 that, “The power of the Court to grant police custody beyond the period of 15 days in a case investigated by the NIA for the offences under the UAP Act is no more res integra in the light of the authoritative pronouncement of the Supreme Court in Maulavi Hussein Haji Abraham Umarji vs. State of Gujarat and another (2004) 6 SCC 672. Therefore, the limitations prescribed in C.B.I., Special Investigation Cell-I, New Delhi vs. Anupam J. Kulkarni (1992) 3 SCC 141 will not apply to a case investigated by the NIA for the offences under the UAP Act.”
To say the least, the Bench then states in para 5 that, “Now, the question that falls for consideration of this Court is whether the grant of statutory bail to Vivek (A.1) was proper and legal.”
Simply put, the Bench then mentions in para 6 that, “Mr. Karthikeyan, learned counsel for the appellant, placed strong reliance on the judgment of the Supreme Court in Rambeer Shokeen vs. State (NCT of Delhi) 3 wherein, the Supreme Court has held that unless the prayer for extension of remand period is rejected, no right would accrue in favour of the accused for grant of statutory bail. In other words, the Supreme Court has held that during the pendency of the consideration of the request of the Public Prosecutor under Section 43(D)(2) of the UAP Act, the accused cannot be enlarged on statutory bail. The corollary of it is that if the application of the Public Prosecutor is rejected, the accused would be entitled to statutory bail.”
Most significantly and also most remarkably what forms the cornerstone of this notable judgment is then elucidated in para 7 wherein it is held that, “In our considered opinion, on the facts of the case at hand, the law laid down in Rambeer Shokeen (supra) cannot be pressed into service by the NIA, since the application under Section 43(D)(2) of the UAP Act was filed only on 16.03.2021, which is after the expiry of the 90th day. The law laid down in Rambeer Shokeen (supra) will come to the aid of a diligent police officer and Public Prosecutor who approach the jurisdictional Special Court with the request for extension of the remand period by filing in time the report under Section 43(D)(2) of the UAP Act. In this case, we find that there was absolutely no diligence at all. Vivek (A.1) was being remanded by the Judicial Magistrate No.II, Madurai, from time to time even after the authoritative pronouncement dated 12.10.2020 of the Supreme Court in Bikramjit Singh vs. State of Punjab (2020) 10 SCC 616. The State should have ensured that Vivek (A.1) was being produced before the Principal District and Sessions Court, Madurai, for remand. Unfortunately, they did not do that. However, the Public Prosecutor had approached the Principal District and Sessions Court, Madurai, with a manifestly defective report under Section 43(D)(2) of the UAP Act by combining two crime numbers. This shows how the State had acted in a cavalier manner for extinguishing the statutory right of a prisoner to be released on default bail under Section 167(2) Cr.P.C. The Public Prosecutor presented his report only on 16.03.2021 and that too before the Principal District and Sessions Court, Madurai, when the case had already been transferred to the NIA as early as 12.03.2021. Vivek (A.1) became entitled to default bail on 15.03.2021 as charge sheet was not filed by then. Since Vivek (A.1) was being produced before the Judicial Magistrate No.II, Madurai, he naturally filed the default bail application on 17.03.2021 there. The Judicial Magistrate No.II, Madurai did not pass any orders on the default bail application that was filed by Vivek on 17.03.2021 on the ground that the NIA has taken over the investigation of the case. Strangely, the Principal Sessions Judge, Madurai, passed an order on 19.03.2021 extending the remand period to 180 days, ignoring the fact that his Court was not the designated Special Court under the NIA Act. Apposite it would be refer to the following passage from the judgment of the Supreme Court in Hitendra Vishnu Thakur vs. State of Maharashtra (1994) 4 SCC 602 on the sanctity of the report of the Public Prosecutor:
“23. …..The use of the expression “on 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” as occurring in clause (bb) in sub-section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb)……” (emphasis supplied).”
As a corollary, the Bench then states in para 8 that, “In such view of the matter, the judgment of the Supreme Court in Rambeer Shokeen (supra) will not come to the aid of the appellant and therefore, we do not find any infirmity in the order dated 05.05.2021 passed by the Special Court at Poonamalee in Crl.M.P. No.181 of 2021 granting bail to Vivek (A.1). As a sequel, Crl.A. No.275 of 2021 is dismissed.”
Finally, the Bench then holds in para 9 that, “Since the order of the Special Court at Poonamallee granting bail to Vivek (A.1) is upheld, axiomatically, police custody cannot be ordered. As a sequitur, Crl.A.No.272 of 2021 also stands dismissed. To sum up, both the criminal appeals are dismissed.”
To sum up, it is high time and now police should not be allowed to get away easily with impunity even after holding mercilessly the liberty of a citizen to ransom by not completing the investigation in time and not filing the charge sheet in time due to which even senior and serving Army Officer like Lt Col Prasad Shrikanth Prasad Purohit is made to face not just merciless torture from police but also rot in jail for 9 long years without even trial being started against him and for next so many years will keep facing trial! This is not “due process of law” but “due murder of law” which happens shamelessly right under the nose of the judiciary! Judiciary must stop being a mute, helpless and hapless spectator!
In this case, the Madras High Court has however taken the right stand and has rightly upheld the default bail granted to the respondent by the Special Court and refused boldly and bluntly to entertain an application for police custody! It is high time and the police as also the State must stop acting in a cavalier manner as has been very rightly called upon by Madras High Court in this leading case who has taken them to task for extinguishing the statutory right of a prisoner to be released on default bail under Section 167(2) CrPC and upholding the rights of the accused to default bail under UAPA! No accused should be kept in jail if police fails to complete investigation within the stipulated time and does not file a charge sheet and if someone is in jail for more than three months, he/she must be acquitted!
It merits no reiteration that police cannot just shamelessly keep demanding years and years as we saw in Lt Col Purohit’s case who inspite of being a decorated soldier who got Army Commendation Card also and yet police did not file charge sheet even after 9 years due to which he had to rot in jail for so long! Accused must be at least released from jail forthwith if police fails to act in time as stated in UAPA and other penal laws! Of course, our law must be amended promptly in this direction accordingly so that no one stays in jail for bloody 9 long years like Lt Col Purohit as others are not so strong like him and we have seen how Father Stan Swamy died just 9 months after his arrest in jail as he could not tolerate it! This blatant violation of human rights by police shamelessly whether it is Mumbai ATS or NIA or anyone else must end forthwith by amending the law in this direction accordingly!
Sanjeev Sirohi