A division bench of judges comprising, Justice Revati Mohite-Dere and Justice Gauri Godse of the Bombay High Court granted a default bail to Momin Moiuddin Gulam Hasan alias Moin Mistri (38) and Asif Aminul Hussain Khan Adhikari (46) who were accused of being the Popular Front of India (PFI) members.
On September 27, 2022, the Ministry of Home Affairs had issued a notification in the Gazette of India declaring PFI and its affiliates as an ‘unlawful association’. The organisations have been banned under Section 3 of the Unlawful Activities (Prevention) Act (UAPA).
The duo was arrested and booked on September 22, 2022, by the Maharashtra Anti-Terrorism Squad (ATS) with allegation of being active members of the banned PFI. After hearing the petition filed by Moin Mistri, a resident of Bhiwandi and Asif Aminul Hussain Khan Adhikari a resident of Panvel, the bench pronounced the order on Monday. Both were under judicial custody in Taloja Central Prison in Navi Mumbai.
A right to default bail applies when the investigative agency fails to file a charge sheet against the accused within a specified time frame given by the Criminal Procedure Code.
Appearing for both the accused, advocate Hasnain Kazi said that this is the first case in Maharashtra where accused PFI members are granted default bail. Speaking to The Hindu, advocate Kazi stated, “The application for seeking 15 days extension for filing charge sheet on the ground that the sanction was awaiting from the Mantralaya was not sustainable in the eyes of law. Because granting extension on such administrative grounds amounts to continuing the detention of the accused which is in complete violation of Article 21 of the constitution because sanction is not strictly speaking a part of investigation.”
He emphasised, “In the absence of sanction there was no bar to file the charge sheet and then produce the sanction of the competent authority subsequently with the permission of the court. Section 173 (5) of the Cr.P.C. of course requires all the documents or the relevant extracts thereof on which the prosecution proposes to rely on, to accompany the final report. Sanction orders cannot be brought within the category of those documents contemplated under clause (5) to section 173 of the Cr.P.C. The grant of sanction is altogether a different act to be performed by the government concerned under section 45 of the UAPA.”
Earlier in the case, the ATS had sought extension to file their chargesheet 90 days after they were remanded to judicial custody. The agency in their application before the Special Court said that at the time of the raids at the offices of the PFI, documents and part of the evidence were destroyed for which the state forensic science laboratory’s assistance was sought to retrieve documents from electronic devices.
The investigation agency also added that over 600 GB data were to be retrieved for the probe. When the ATS sought 90 days for investigation, the Special Court said that 30 days were enough for the completion of the probe. In December 2022, the Special Court an extension for a month followed by another 15 days‘ time for the agency to file chargesheet to avail prosecution sanction.
On September 22, 2022, five men: Mazhar Mansoor Khan, Shaikh Sadik Isak Qureshi, Mohammed Iqbal Mohammed Ibrahim Khan, Momin Mohiuddin Gulam Hasan and Aasif Aminul Hussain Khan, were allegedly arrested for having connections with PFI.
All of them were booked under charges including 121A (waging war or attempting or abetting waging of war against the Government of India), 120B (criminal conspiracy), 153 A (promoting enmity and doing acts prejudicial to maintenance of harmony) and section 13 (1) (b) (advocates, abets, advises or incites the commission of, any unlawful activity) of the UAPA. Maharashtra Police’s ATS had conducted raids at 12 different locations across the state and over 20 people were arrested with allegations of linkages with PFI.
When the court granted 15 days‘ time only on the ground of obtaining sanction from the Mantralaya at that time the said two accused persons, Mr. Mistri and Mr. Adhikari through their advocate Shraddha Vavhal filed a default bail application on the ground that granting 15 days extension on the ground of obtaining sanction is not permissible in law. The Special Court rejected their application leading to filing an appeal before High Court challenging extension order and default bill passed by a special court and on July 15, 2024 the Bombay High Court allowed their appeal granting default bail.
Published - July 16, 2024 01:12 am IST
