Recently, the Supreme Court has affirmed that a Magistrate cannot grant extensions to investigation agencies for the purpose of carrying out investigations under Section 167 of the Code of Criminal Procedure, 1973 (CrPC) when the accused is charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA). This decision was made by relying on the case of Bikramjit Singh v State of Punjab. This post seeks to enquire into the law on this point by adverting to a textual analysis of relevant provisions and discussing the said case law.
History of the Law
To fully comprehend this issue, a brief exposition of the law is necessary.
The CrPC is the legislation that provides the procedure for the administration of substantive criminal law in India. Substantive laws provide for what constitutes the offence and its punishments. However, it is the CrPC that governs the procedure to be followed from the stage of filing a complaint to investigation and ultimately prosecution. Accordingly, the CrPC provides requisite procedural safeguards to ensure that police powers of the State are not abused. One such safeguard is the right to be produced before a Magistrate within 24 hours of the arrest. If such a person is required to be detained for a period beyond the initial 24 hours, it can only be done with the permission of the judicial authority. The application by the investigation agency to extend this period of detention beyond 24 hours is done through Section 167 of the CrPC.
Offences under the UAPA are governed by the procedural law in the CrPC. This is by virtue of Section 26(b) of the CrPC which extends its application to offences found in laws other than the Indian Penal Code, 1860. This position is also affirmed from the definition of “court” under Section 2(1)(d) of the UAPA, which before 2008 provided-
“court means a criminal court having jurisdiction, under the Code, to try offences under this Act”
Therefore, when a person is accused of any offence under the UAPA, all the provisions of the CrPC will be applicable. including Section 167 of the CrPC. As the courts established under the CrPC were relevant, an application under Section 167 of the CrPC for UAPA offences were also decided by the Magistrate (being the competent forum under the CrPC).
The law saw a change in the year 2008 with the enactment of the National Investigation Agency Act, 2008 (NIA Act) and the Unlawful Activities (Prevention) Amendment Act, 2008. Amongst the many changes made in the UAPA by these two legislations, two changes are of importance for this discussion.
The first is the amendment to Section 2(1)(d) of the UAPA, which now defines the expression “court” to mean-
“a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 22 of the National Investigation Agency Act, 2008”[Emphasis Supplied]
The highlighted portion in the excerpt was added.
The second is the introduction of Section 43D in the UAPA. The precise provision that is relevant for our discussion is Section 43D(2). This provision modifies Section 167 of the CrPC by altering the time limits for which additional extensions may be granted by the Court for UAPA cases. An important point to note here is that while making the said modification, the proviso to Section 167(2) is made to incorporate the expression “court”. As this expression has been defined in Section 2(1)(d) of the UAPA itself, it is contended that the “court” in Section 167 of the CrPC has to be construed in accordance with the definition in the UAPA.
By these amendments, the appropriate “court” included three distinct courts-
- The court under the CrPC,
- The Special Court under Section 11, or
- The Special Court under Section 22 of the NIA Act.
The UAPA is silent on which of these courts (if not all of them concurrently) would qualify as the appropriate court that would have jurisdiction. By amending the definition, the UAPA merely gives passive recognition to these courts. Rather than the UAPA, the jurisdiction of these courts is provided by the laws through which these courts originate. Under the CrPC, it may be the High Court, Court of Sessions, or the Magistrate of the first class depending on the precise offence (Section 26(b) read with the First Schedule may be referenced). For the Special Courts, it is the NIA Act (Section 11 and 22).
To understand the legislative scheme, the following relevant provisions of the NIA Act are required to be discussed-
- Section 11 of the NIA Act empowers the Central Government to notify and create their Special Court.
- Section 22 of the NIA Act empowers the respective State Governments to notify and create their own Special Courts. These Courts are distinct from the Courts under Section 11.
- Section 13 of the NIA Act provides for the jurisdiction of both courts mentioned above. The plain language of Section 13 provides that the Special Court of the Central Government (under Section 11) will have exclusive jurisdiction to try offences mentioned in the Schedule (including UAPA offences) if the National Investigation Agency has carried out the investigation of the offence.
The language of Section 13 does not by itself, provide for the jurisdiction of the Special Courts of the States (constituted under Section 22). The application of Section 13 to the States’ Special Courts is done by Section 22(2) in express terms. Whilst Section 22(2) requires the application of Section 13 to the Special Courts of the States, it also modifies the language of the said provision. Accordingly, the Special Court of the States (constituted under Section 22) have exclusive jurisdiction to try the offences in the Schedule, if the investigation agency of the State i.e. the State Police, has carried out the investigation.
- Lastly, Section 22(3) of the NIA Act provides that if the Special Court is not constituted by the State, the jurisdiction and powers of the Special Courts will vest in the Court of Sessions under the NIA Act.
Let us now understand the implications of applying the definition of “court” in the substantive provisions of the UAPA. For example, Section 11 of the UAPA provides that if a person is served with a prohibitory order under Section 7 to deal with a certain property, and there is contravention such order, then the “court” may impose additional fines for the contravention.
Step 1
The definition of “court” is employed in Section 11 of the UAPA. This means that the-
- Courts under the CrPC that have the power to try offences, and
The Special Courts under the NIA Act, all have the power to impose fines.
Step 2
Possibility A
In the event the Special Court is notified, Section 13 of the NIA Act gives exclusive jurisdiction to the Special Court to try UAPA offences. Accordingly, the CrPC courts are divested of the power to try UAPA offences. As a result, amongst the courts identified in Step 1, only the Special Court remains. In this manner, the Special Court is the relevant “court” in Section 11 of the UAPA.
Possibility B
In the event the Special Court is not notified, Section 22(3) read with Section 13 of the NIA Act confers exclusive jurisdiction on the Court of Sessions to try UAPA offences. Accordingly, the CrPC courts are divested of the power to try UAPA offences.
As a result, amongst the courts identified in Step 1, none of the courts remains. This is because the Special Courts are not notified, and the courts under the CrPC are divested of their jurisdiction by the aforementioned provisions of the NIA Act as well.
Step 3
A third step thus becomes necessary in the event the definition of “court” applies, and there are no Special Courts that are notified.
Section 22(3) read with Section 13 of the NIA Act provides that the Court of Sessions will have exclusive jurisdiction to try UAPA offences. Therefore these provisions directly apply to the UAPA provisions, which in this example is Section 11 of the UAPA. Accordingly, the Court of Sessions having jurisdiction under the NIA Act becomes the relevant court in Section 11 of the UAPA, despite not being identified in the definition of “court”.
The Issue with the case of Bikramjit Singh
The application of law in this regard was dealt with in a judgment delivered by the Supreme Court in Bikramjit Singh v State of Punjab. The decision was by a 3 Judges Bench, where Justice Nariman writing for the majority holds in Paragraph 21-
This Scheme has been completely done away with by the 2008 Act 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 fall back is upon the Court of Sessions alone.
So far so good. The problem arises with what the learned Judge says immediately after. He proceeds to hold-
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. The impugned judgment in arriving at the contrary conclusion is incorrect as it has missed Section 22(2) read with Section 13 of the NIA Act. [Emphasis Supplied]
In this manner, Justice Nariman holds that when the definition of “court” is employed in Section 43D(2), it will refer to the Special Courts, in the absence of which, it shall be the Court of Sessions that will have the exclusive power under Section 167 of the CrPC.
It may appear that the application of the law is analogous to the example given earlier with Section 11 of the UAPA. This is not the case when the definition of “court” is applied to Section 43D(2).
Let us attempt to apply the definition of “court” in Section 43D(2) by following the steps mentioned earlier.
Step 1
The definition of “court” is employed in Section 43D(2) of the UAPA. This means that the-
- Courts under the CrPC that have the power to try offences, and
The Special Courts under the NIA Act, all have the power to hear applications under Section 167 of the CrPC.
Step 2
Possibility A
In the event the Special Court is notified, Section 13 of the NIA Act gives exclusive jurisdiction to the Special Court to try UAPA offences. Accordingly, the CrPC courts are divested of the power to try UAPA offences. As a result, amongst the courts identified in Step 1, only the Special Court remains. In this manner, the Special Court is the relevant “court” in Section 43D(2) of the UAPA.
Possibility B
In the event the Special Court is not notified, Section 22(3) read with Section 13 of the NIA Act confers exclusive jurisdiction on the Court of Sessions to try UAPA offences. Accordingly, the CrPC courts are divested of the power to try UAPA offences.
As a result, amongst the courts identified in Step 1, none of the courts remains. This is because the Special Courts are not notified, and the courts under the CrPC are divested of their jurisdiction by the aforementioned provisions of the NIA Act as well.
Step 3
In our previous example, when “Possibility B” was discussed in Step 2, it was argued that Section 22(3) read with Section 13 of the NIA Act ought to directly apply to the respective UAPA provision. This would result in the Court of Sessions (under the NIA Act) exercising its jurisdiction ultimately.
This, however, would not be possible for the purposes of Section 43D(2). This is because Sections 22(3) and 13 give power to the Court of Sessions only to try UAPA offences. Section 43D(2) on the other hand, does not relate to trial at all but deals with an application under Section 167 of the CrPC. Such an application is made at the stage of the investigation, which is much before the trial of any offence takes place. Therefore, Section 22(3) and Section 13 of the NIA Act have no bearing with Section 43D(2) and cannot be directly applied to the same.
The next pertinent question is of the consequences that follow from this. After following Step 2, when we encounter “Possibility B”, none of the forums in the definition “court” remain. This is usually remedied by following Step 3, which cannot happen in the context of Section 43D(2). Ultimately, we are left with the position at the end of Step 2-“Possibility B” which is that no court would be able to hear applications under Section 167 of the CrPC. This in turn, would lead to absurd consequences and an unworkable outcome.
It must be clarified that this position is reached by a straightforward application of the definition clause. There are no complex interpretive exercises that are carried out to reach this position. Further, there is no ambiguity in the law that allows us to make an argument for any alternative construction or carry out purposive interpretation. If the definition of “court” is applied to Section 43D(2) of the UAPA, it will inevitably lead to an unworkable outcome.
The Solution to the Problem
The only possible solution to this conundrum is to not apply the definition of “court” to Section 43D(2) at all.
The opening lines of Section 2(1) of the UAPA say that the definitions apply “unless the context otherwise requires”. If the definition is employed in Section 43D(2), it would result in an unworkable outcome and this could not possibly have been the intention of the Parliament. Here, it may be contemplated that a counterargument can be made- The whole purpose of creating Special Courts under the regime of the NIA Act was to confer exclusive powers to a forum that specializes in these issues. These forums are better equipped and qualify as ‘superior’ courts operating at a different threshold from ordinary courts. The issue of remand is very important in the administration of criminal justice, because of which the law must be construed to only allow the Special Courts to hear applications under Section 167 of the CrPC.
Whilst this may make a case for adopting the definition of “court” in Section 43D(2), the straightforward consequences of this are to have an unworkable outcome if a Special Court is not notified. Therefore, it cannot be possible that the aforementioned argument based on the purpose of the Special Courts be made AND that there be no unworkable situation upon employing the definition of “court”. Only one of the two alternatives is possible, and under no consequences can an entire legislative provision be made redundant and unworkable.
This would be sufficient to indicate that a contrary context exists to not use the definition in Section 43D(2). This principle has been recognised and applied by the Supreme Court in the case of Special Officer and Competent Authority Urban Land Ceiling Hyderabad v P.S Rao. Further, the Supreme Court on occasion has held that any interpretation of law that results in hardship and unworkable consequences must be avoided. These principles of statutory interpretation thus suggest, that the definition of “court” ought not to be employed in Section 43D(2) of the UAPA.
If the definition of “court” is not employed in Section 43D(2), Section 167 of the CrPC would apply to UAPA cases as it would, to any other case under the Indian Penal Code, 1860. This would effectively bring us back to the position, prior to amendments made to the UAPA in the year 2008. Accordingly, even the Magistrate would have the power to hear such an application. Therefore, on the grounds mentioned above, the Supreme Court’s recent affirmation of the Bikramjit case is incorrect and the said case ought to be reconsidered.
About the Author, Pradhyuman [2017-22] is B.A.LL.B (Hons.) from Gujarat National Law University, Gandhinagar. He thanks Rattanmeek Kaur for suggesting research on this topic and Mr Abhinav Sekhri for his valuable feedback to better structure and articulate the piece.
Criminal Law Research & Review 