One pertains to the infamous arrest of 5 activists, i.e., Surendra Gadling, Shoma Sen, Mahest Raut, Rona Wilson, and Sudhir Dhawale under the UAPA in June, 2018 by the Pune police, in connection with the Bhima Koregaon violence on January 1, 2018, and for their alleged links with banned Maoist groups. They were arrested under Sections 153A, 505 (1)(B), 117, 120B read with Section 34, IPC and under Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the UAPA. As per Section 167(2)(a)(i) and (ii) of the Code of Criminal Procedure, 1973, the investigation of an offence punishable with death or life imprisonment or with imprisonment not less than 10 years within 90 days, and if not completed within 90 days, the accused is entitled to be released on bail.

However, in case of UAPA offences, the law provides for detention for another 90 days, if the public prosecutor submits a report stating the progress of investigation, and why investigation could not be completed within 90 days, and the reasons for extension. In the present case, the Pune Police sought extension of the remand period and was granted the same by the Trial Court, which was later quashed by the Bombay High Court stating that the mandatory requirements for seeking extension of remand under UAPA were not met, and the accused were entitled to be released on bail. However, the High Court stayed its own order, in order to allow the State of Maharashtra to appeal to the Supreme Court.

On appeal, the Supreme Court overturned the High Court, and upheld the Trial order granting extension of detention period on the basis that though there existed irregularities in the Public Prosecutor’s report, reasons for seeking extension of remand period were mentioned, thereby warranting acquiescence to the same. The Court did not examine whether the reasons were substantive or not, considering the accused were languishing in jail for almost 6 months, but chose to adopt a very technical view not suited to the highest constitutional court in the country. [State of Maharashtra Vs. Surendra Pundlik Gadling & Ors. 2019SCC Online SC 188]

In a similar case, the Supreme Court was hearing an appeal from the Madras High Court where the High Court had granted default bail to the accused. In the case, the accused was allegedly involved in the murder of a spokesperson of the Hindu Front of Coimbatore. The investigation was not complete, and the accused applied for default bail, which was given by the High court. On appeal by the National Investigation Agency (‘NIA’), the Supreme Court explained that when the prosecution claims cancellation of bail under the UAPA, four requisites need to be met – it was not possible to complete the investigation in 90 days; report on the investigation has to be submitted by the Public Prosecutor which indicates the progress and highlights the reasons as to why they seek an extension of remand beyond 90 days; the court needs to be satisfied with the reasons provided by the Public Prosecutor. Only then can the court grant an extension of remand beyond 90 days. The prosecutor could not show that the accused in the case had violated any of the conditions imposed on him as a part of the bail order. While the Supreme Court disagreed with the reasons given by the High Court to grant bail, it still took into account the later developments in the case and upheld the bail order namely that all the other accused had also been granted bail in the matter. [Union of India v Mubarak @ Muhammed Mubarak, Criminal Appeal No. 865 of 2019, date of judgment:07.05.2019]

In both these cases, the Court’s deference to the UAPA cases is disappointing, since UAPA is one of the harshest laws in India being used to curb dissent, and to intimidate human rights activists who are opposing the present political regime’s anti-people and anti-poor policies and actions. The Court should not become a party to this selective targeting of activists by the Executive in the garb of ‘national security’. (IPA Service)