UAPA custody extension invalid without prosecutor’s report on investigation progress, Assam HC rules

On 24 May 2026, Tinsukia Police registered a case alleging that petitioner No. 1 and others had collected money for a banned organisation and engaged in unlawful activities; petitioner No. 2 was subsequently arrested.

On 5 August 2026, the Superintendent of Police sought an extension of the investigation period from 90 to 180 days under Section 43D(2)(b) of the UAPA.

The Special Judge allowed the request on 18 August 2026, relying on the Investigating Officer’s report, the Public Prosecutor’s endorsement, and the case diary; the order was made before petitioner No. 1 had completed 90 days in custody.

The petitioners’ subsequent applications were rejected on 21 August and 8 September 2026.

They challenged all three orders under Section 528 of the BNSS, contending that the extension was granted without the report required from the Public Prosecutor.

1. Whether an extension of the investigation period under Section 43D(2)(b) of the UAPA could be granted without a report from the Public Prosecutor setting out the progress of the investigation and specific reasons for continued detention.

2. Whether the orders dated 18 August, 21 August and 8 September 2026 should be set aside for non-compliance with the statutory requirements governing that extension.

Section 43D(2)(b) of the UAPA permits extension of the 90-day investigation period up to 180 days only where the court is satisfied on a Public Prosecutor’s report indicating the progress of the investigation and specifying reasons for the accused’s continued detention.

The Court stated that the required safeguards include scrutiny by the Public Prosecutor as an independent statutory authority and notice to the accused; an Investigating Officer’s request alone is not a substitute for the prosecutor’s report.

In State of Maharashtra v. Surendra Pundlik Gadling, (2019) 5 SCC 178, applying Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, the Supreme Court recognised the prosecutor’s independent role and the need for genuine application of mind; Ateef Nasir Mulla v. State of Maharashtra, (2005) 7 SCC 29, was cited in relation to a proper report containing reasons for continued detention.

The Special Judge’s order recorded that the Investigating Officer had sought the extension through the Public Prosecutor and that the court had heard both the prosecutor and the Investigating Officer.

However, the High Court found that the record disclosed no Public Prosecutor’s report setting out investigative progress or specific reasons for the petitioners’ continued detention.

Because the statutory extension depends on the court’s satisfaction based on that report—and not merely on the Investigating Officer’s application or an endorsement—the extension order did not meet the requirements of Section 43D(2)(b).

The orders rejecting the petitioners’ subsequent applications were also interfered with.

It quashed the Special Judge’s order dated 18 August 2026 and interfered with the consequential orders dated 21 August and 8 September 2026; the criminal petition was disposed of.