UAPA: Supreme Court holds Magistrate cannot extend chargesheet deadline under Section 43D(2)(b) proviso

A Magistrate does not have the jurisdiction to extend the deadline for completion of investigation and filing of chargesheet in cases under Unlawful Activities Prevention Act (UAPA), the Supreme Court has ruled [Sadique v. State of Madhya Pradesh]..In this regard, a three-judge Bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi said that such power under the first proviso to section 43D(2)(b) of UAPA would be with special court set up under the National Investigation Agency Act and in the absence of such special courts, with the sessions court."In so far as 'extension of time to complete investigation' is concerned, the Magistrate would not be competent to consider the request and the only competent authority to consider such request would be 'the Court' as specified in the proviso in Section 43-D (2)(b) of the UAPA," the top court said.In this regard, the apex court confirmed its 2020 judgment in Bikramjit Singh vs. State of Punjab."After considering various provisions of the relevant statues, it was concluded (in Bikramjit) that “so far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D (2)(b) is nonexistent," the order further said..The order was passed on a plea by four persons accused under UAPA, challenging an order passed by the Madhya Pradesh High Court which had confirmed a March 2014 order passed by Chief Judicial Magistrate (CJM), Bhopal granting investigating agency extension of time under Section 43D(2)(b) to complete the probe.On completion of 90 days of their actual custody, applications on behalf of appellants were moved under Section 167(2) of Code of Criminal Procedure seeking bail on the ground that no chargesheet was filed by the Investigating Agency within 90 days. Those applications were rejected by the CJM, Bhopal. Revision Applications were preferred by the appellants which were also rejected by the Sessions Court, Bhopal and the matter was carried to the High Court. .The High Court held that since the CJM, Bhopal had passed an appropriate order in March, 2014, the period available for the investigating machinery to complete the investigation stood extended to 180 days and as such the applications preferred by the appellants under Section 167(2) of the Code were not maintainable and that the appellants were not entitled to relief.This led to the present appeal before the Supreme Court. Senior Advocate Siddhartha Dave appearing for the appellant-accused, relied upon the decision of the top court in Bikramjit Singh. He submitted that para 26 of the decision completely covers the issue and that the extension granted in the instant case by CJM, Bhopal was beyond jurisdiction and would, therefore, be of no consequence.The Court proceeded to extract para 26 of Bikramjit Singh in its order which reads as follows:“26. Before the NIA Act was enacted, offences under the UAPA were of two kinds — those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Session. This scheme has been completely done away with by the NIA Act, 2008 as all Scheduled Offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act. In the absence of any designated court by notification issued by either the Central Government or the State Government, the fallback is upon the Court of Session alone. Thus, under the aforesaid scheme what becomes clear is that so far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in the absence of a notification specifying a Special Court,or the Special Court itself.”.In view of the same, the Court allowed the appeal and held that the appellants are entitled to be released on default bail."The appellants be produced before the concerned Trial Court within three days from today and the Trial Court, shall release them on bail subject to such conditions as the Trial Court may deem appropriate to impose to ensure their presence and participation in the pending trial," the Court ordered..[Read Order]