Recently, the Madras Court answered an important question, namely whether the date of pre-trial detention should be included in the calculation of the 90-day deadline for filing the final report under section 173 of the Criminal Procedure Code, 1973.
The bench of Judges M. Sundar and R. Sakthivel stated that the request for an extension of the prosecution term should not have been adopted without the defendant’s presentation before said lower court either in person or by electronic video link.
In this case the question was whether the date of pre-trial detention should be included in the calculation of the 90-day deadline for filing the final report under Article 173 of the 1973 Criminal Procedure Code?
The FIR has been registered for alleged offenses under sections 153-A, 120-B, 505(1)(c), 505(2) of the IPC and section 13(1)(b) of the UAPA. The applicants were placed in pre-trial detention by the Judicial Tribunal. The Prosecutor filed a motion to extend the prison term beyond 90 days under Section 43D(2)(b) of the UAPA.
The application was filed by the applicants seeking default bail under section 167(2) of the Cr.PC After the applicants made the above application for default bail, the indictment was filed with said court of first instance.
The High Court noted that the application for default bond was lodged by the defendant prior to the submission of the charge sheet/final report under section 173 Cr.PC, meaning that the plea is clearly acceptable.
The Court noted that the contested orders reveal that the said lower court had issued the contested orders mainly on the basis that the prosecution filed the request for an extension before 90 days had elapsed (89th day) and the The default bail application was filed by the plaintiffs on Day 91.
This was stated by the High Court We believe this reason is one of the reasons why the impugned 2nd order deserves to be interfered with as the right to claim for default bond remains rudimentary until the 90th day has expired and only becomes an exercisable right on the 91st day. This means that the applicants could not have filed a bail application earlier and, in any event, the charge sheet (section 173 Cr.PC final report) was filed only after the bail application had been lodged. Regarding the prosecution’s application for extension after requesting extension on the 89th day by stating five reasons, the prosecution filed the final report under section 173 Cr.PC on the 91st day itself, which means that the applicants’ argument that the extension was made more a demand for the continuation of the applicants’ incarceration than for the completion of the investigation.
The panel considered that the request for an extension of the prosecution deadline should not have been granted without the defendant’s presentation before the aforementioned district court either in person or by electronic video link
The High Court held that there are no UAPA Chapter IV and VI qua offenses and therefore, the rigor of the clause of UAPA section 43D(5) which states that bail shall not be granted if there is reasonable ground to believe that the accusation against such a person is prima facie true does not work. There is no act of violence that has been imputed to the applicants, ie neither hidden nor overt.
The panel of judges observed that the prosecution at the time of filing the application for the extension of pre-trial detention on the 89th day, according to the Prosecutor’s report, had given five reasons to request the extension but had filed an indictment in just two days since then, i.e. the 91st day.
The High Court said that, according to the senior lawyer, the reasons given by the prosecution for extending the pre-trial detention period were not genuine. There is no explanation acceptable to the Prosecutor’s Office on how to submit the final report within two days of the date of submission of the extension request. In this regard too, even in the counter-complaint, there is no explanation.
In view of the foregoing, the panel of judges upheld the appeal.
Case title: Mohamed Hasan Kuthous v State
Bench: Judges M. Sundar and R. Sakthivel
Case no.: Criminal appeal n.1317 and 1319 of 2022
Counsel for the appellant: S. Shunmugavelayutham
Defendant Counsel: K. S. Mohandass
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