IMPORTANT POINTS
(1) Mere applicability of offences under UAPA Act does not ipso facto extend the period of detention of an accused pending investigation from 90 days to 180 days. Such extension is an exercise of judicial discretion which may be permitted upon the following statutory pre-conditions being satisfied:
(a) Report filed by the Public Prosecutor indicating the progress of investigation and specific reasons for detention of the accused beyond 90 days;
(b) Recording of satisfaction by the Court on such report filed by the Public Prosecutor that further detention of the accused is necessary for progress of investigation;
(2) In his role to file a report seeking extension of period of detention during the investigation in terms of proviso to Section 43D(2) of UAPA Act, the Public Prosecutor is required to act independently and not lend concurrence to the ipse dixit of the Investigating Agency.
(3) The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it.
(4) A plain reading of sub-sections (5), (6) & (7) of Section 43D shows that the scope of operation of the said provisions relate to the discretionary jurisdiction of the court to grant bail on merit not to cases where bail is granted to an accused on default.
(5) Unjustified denial of right to statutory bail to an accused would not result in extinguishment of such right by subsequent filing of police report.

JUDGMENT

Joymalya Bagchi, J.—The lower court records have been received.

Petitioners in CRR 602 of 2017 have approached this Court, inter alia, assailing the applicability of Sections 16/18 of the Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as UAPA Act] to the instant case.

2. During the pendency of the petition, Mr. Bikash Ranjan Bhattacharyya, learned senior advocate appearing for the petitioners sought leave to assail the order dated 6th April, 2017 extending the period of detention of the petitioners under Section 167(2) of the Code of Criminal Procedure in terms of Section 43D(2) of UAPA Act and order dated 28.6.2017 denying statutory bail to the petitioners herein. Such prayer, being incidental to the principal relief sought for, was permitted to be canvassed in this petition.

3. On perusal of the order dated 6th April, 2017 passed by the learned Magistrate, I found that the order was written by different hands and had called for a report from the judicial officer as to circumstances under which such order came to be recorded in such manner. Report received from his end revealed a very disturbing state of affairs. The Magistrate upon receiving the prayer for extension of period of detention from the Investigating Agency had dictated the order to the ASI of Police attached to the General Registrar section and upon giving such dictation had merely affixed the word ‘allowed’ to the said order. The step taken by the Magistrate in outsourcing the recording of judicial orders to officers unattached to his Court particularly to a police personnel is an issue of grave concern. It amounts to a gross breach of the constitutional mandate of separation of executive from the judiciary and strikes a fatal blow to the independent functioning of judicial institution and preservation of fairness in administration of criminal justice. That apart, the contents of the aforesaid order patently expose utter non-compliance of pre-requisites in the matter of extending the period of detention of an accused charged of offences under the UAPA Act in term of Section 43D(2) of the said Act.

4. Section 43D(2) of the UAPA Act empowers the Court to remand an accused to police custody for 30 days instead of 15 days and to judicial custody upto 90 days in the event the investigation involves offences under the said Act. First proviso to the said sub-section empowers the Court on being satisfied with the report of Public Prosecutor indicating progress of investigation and specific reasons for further detention of an accused, to extend the period of detention pending investigation from 60 days to 180 days. It is, therefore, evident that mere applicability of offences under UAPA Act does not ipso facto extend the period of detention of an accused pending investigation from 90 days to 180 days. Such extension is an exercise of judicial discretion which may be permitted upon the following statutory pre-conditions being satisfied:

(a) Report filed by the Public Prosecutor indicating the progress of investigation and specific reasons for detention of the accused beyond 90 days;

(b) Recording of satisfaction by the Court on such report filed by the Public Prosecutor that further detention of the accused is necessary for progress of investigation;

Perusal of the aforesaid order shows complete non-conformity to both the conditions necessary to extend the period of detention of an accused during investigation.

Firstly, report in the instant case was not filed by the Public Prosecutor but by the Investigating Officer of the case.

5. Learned Advocate General argued that such report was, in fact, supported by the Public Prosecutor as he had argued in favour of extension on such report.

6. The role of the Public Prosecutor and that of the Investigating Officer are clear and distinct in the scheme of investigation and prosecution of criminal case. While the Investigating Officer has the duty to investigate a crime, it is the role of the Public Pr