DELHI HIGH COURT JUDGEMENT ON SECTION 167 OF THE CR.P.C. AS MODIFIED BY SECTION 43(D)(2) OF THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967

Khalid Vs. State (GOVT. Of NCT Of Delhi), (2020) 09 DEL CK 0033

A Division Bench of the Delhi High Court held that the decision to extend the judicial custody of an accused seriously affects the accused and the principles of natural justice clearly require that such an accused be granted the right to oppose the passing of any such order. Clearly for the right to be more meaningful, it would also be apposite to disclose the detailed reasons for seeking such an order which extends the time for completion of investigation accruing out of the proviso to Section 167 of the Cr.P.C. as modified by Section 43(D)(2) of the Unlawful Activities(Prevention) Act, 1967 for investigations under UAPA. However, the rights ofthe accused in this regard have to be necessarily curtailed by the necessity to conceal such reasons from the accused and not make it public. This is because,at this stage, the investigation is incomplete and disclosing the manner in which investigation has proceeded and is proposed to be conducted, may frustrate such investigative efforts. Thus, in order to ensure the efficacy and secrecy of investigation, it is necessary to conceal the public prosecutor’s report on the progress of investigations and also the reasons why it has remained incomplete. The report may include disclosure of the enquiries yet to be made and the steps proposed to be taken to coalesce the evidence. Disclosure of such information may provide an opportunity for tampering with evidence, which is yet to be collected. However, the fact that such reasons for seeking extension of time for completing of investigation and the report on progress made in the investigation are required to be concealed from the accused does not mean that he has no right to oppose such an application. The accused can make submissions and bring facts to the notice of the Court in support of his contention that such an extension ought not to be granted. As held in Hitendra Vishnu Thakur (supra) the accused must be given an opportunity to oppose the extension on “all legitimate and legal grounds available to him”. The Court, of course, is required to consider the said contentions as well as the report submitted by the learned public prosecutor in support of the application for extension of time.