IMPORTANT POINT
Application under Section 43(D)(2) of UAP Act was filed only after expiry of 90th day can be allowed.

JUDGMENT (COMMON)

R. Pongiappan, J.—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.

2. 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 15.03.2