Punjab and Haryana High Court issues directions for Investigating Officers adding or deleting offences under UAPA Act in the FIR

Punjab and Haryana High Court: In twin criminal appeals against rejection of bail applications by the Trial Court for the petitioners against whom, the offence under Unlawful Activities (Prevention) Act, 1967 (‘UAPA Act’) was subsequently added in the FIR, but dropped while framing the chargesheet, the Division Bench of Sureshwar Thakur* and Sudeepti Sharma, JJ. granted bail to the petitioners while issuing directions for the Investigating Officers investigating matters involving addition or deletion of offences under the UAPA Act, to practice due scrutiny before taking any decision in this regard.

Factual Matrix

The instant matter arose from First Information Report (‘FIR’) for offences under Sections 307, 341, 323, 427, 506, 148, 149 and 34 of the Penal Code, 1860 (‘IPC’), Sections 25, 27, 54 and 59 of the Arms Act and Section 13 of UAPA Act.

The petitioners had earlier instituted bail application under Section 439 of the Criminal Procedure Code, 1973 (‘CrPC’) before the Trial Court on different occasions, and both were declined by the Trial Court. The offence under UAPA was included after the High Court’s order dated 4-10-2023. Also, the Commissioner of Police was required for personal appearance vide order dated 20-10-2023.

Court’s Scrutiny of Addition and Deletion of Offence under UAPA Act

As pointed out by the Court, the aforesaid orders were discussed because of the fact that the offence under the UAPA Act was initially included but was excluded from the chargesheet by the investigating officer. As disclosed by the Commissioner of Police concerned, the offence under Section 13 of UAPA Act was added earlier and during investigations, it was found that the two accused persons had created a gang, indulged into fights with the public, which created panic and fear in the society, and that the provisions under the UAPA Act were rather not liable to be embodied in the FIR, and were ordered to be deleted on 23-06-2022 after the institution of final report before the Trial Court under Section 173 of CrPC.

Hence, the final report did not include offences under the UAPA Act. In consequence, the stringency of provisions under UAPA were eased for the petitioner to claim regular bail from the Court. The Court expressed that it may become constrained to allow the petitioners’ release from judicial custody unless there was evidence of the petitioners not cooperating with the investigation or tampering with the prosecution evidence.

Having noted that there was no protest on part of the investigating officer as against the grant of regular bail to the petitioners, claiming any likelihood of them tampering with prosecution evidence or influencing prosecution witnesses, conclusion of investigation and prolonged judicial incarceration of the petitioners, the court decided to allow the instant bail applications.

The Court further pointed towards the further FIRs registered against the two petitioners herein and noted the State Counsel’s submission regarding the petitioners being habitual offenders, indicating their likelihood of re-indulging in crimes. However, the Court was of the view that repeated indulgences in crime does not preclude the Court from granting bail to the petitioners since the imposition of onerous conditions would rather ensure that they do not disturb public order, through theirs re-indulging in crime.

Therefore, the Court allowed both the applications for bail subject to the conditions, unless they were required in some other case arising out of the other FIRs. The said conditions so imposed included surety bonds of Rs 1 lakh each for both the petitioners, undertaking for not influencing prosecution witnesses or tampering with evidence, rescind of regular bail in the event of petitioners re-indulging in crime and deposit of their passports with the SHO.

The Court explained that the reason for imposing such directions was the mechanical and perfunctory in which the investigating officer proceeded to include UAPA offences in the FIR while ultimately concluding that such offences were not required to be included. The Court expressed concern that such ‘mechanical and perfunctory manner of inclusion of offences under the UAPA Act’ ultimately causes deep trauma on the minds of bail applicants since the stringency and exacting rigor of UAPA provisions prima facie forbid them from claiming bail from the Courts of Law. It further added that such a non-application of mind by the investigating officer requires to be curbed.

Directions for Investigating Officers

The Court, therefore, found the need to issue directions for the Police Commissioners besides the Superintendents of Police to ensure a ‘dire and circumspect application of mind’ while making a contemplation vis-à-vis the inclusion of offences in the UAPA Act in the FIRs. The following directions were passed:

1. Police to ensure monitoring the investigations on a day-to-day basis for FIRs wherein the investigating officer so concerned intends to include offences under UAPA Act after collecting relevant incriminatory material against the accused.

2. After close scrutiny followed by monitoring investigations, if the investigating officer deems it fit to include UAPA offences, such officers to make a closest application of mind to the incriminatory material so collected, and to ensure the necessity to include or exclude UAPA offences in the relevant FIR.

3. In case of dereliction of duty on part of the police officers concerned, the Director General of Police, Punjab to ensure that even with respect to the said police officers, appropriate action recommended to be made in accordance with law.

[Parmodh v. State of Punjab, 2023 SCC OnLine P&H 3332, decided on 5-12-2023]

Judgment by: Justice Sureshwar Thakur

Advocates who appeared in this case :

For Petitioner: Advocate Jasdeep Singh Kailey, Advocate J.S. Dadwal

For Complainant/State: Sr. DAG of Punjab, Monika Jalota, Advocate Vivek Sharma

Buy Penal Code, 1860   HERE

Buy Code of Criminal Procedure, 1973  HERE