Safiya Malik

The High Court of Delhi Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela delivered its judgment dismissing a public interest litigation that challenged the constitutional validity of Section 193(9) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023). The court held that the provision allowing further investigation even after the filing of a report under Section 193(3) is valid, does not camouflage the right of default bail under Section 187(3), and contains adequate safeguards against arbitrary use. The Bench directed that the writ petition stands dismissed with no order as to costs.

The proceedings concerned a public interest litigation filed challenging the constitutionality of Section 193(9) of BNSS, 2023 read with Section 187(3). The petitioner sought a declaration that Section 193(9) is arbitrary, violative of Article 21 of the Constitution of India, and consequently ultra vires. The petitioner further prayed for directions that the powers conferred under Section 193(9) be read as not unlimited and that an accused cannot be detained for more than the maximum period stipulated under Section 187(3). The relief sought also included recognition that once a chargesheet is filed, the accused is entitled to release on default bail under Section 187(3).

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The petitioner, appearing in person along with a team of advocates, contended that the provisions of Section 193(9) read with Section 187(3) were arbitrary and violative of the right to personal liberty guaranteed under Article 21. It was argued that Section 187(2) and (3) of BNSS, 2023 embodies the statutory right to default bail if the investigation is not completed within ninety days from the date of arrest in cognizable offences. The petitioner contended that the language of Section 193(9), which permits further investigation without prescribing a specific duration, undermines and effectively camouflages the right to default bail.

The petitioner argued that by resorting to Section 193(9), investigating agencies may file incomplete charge sheets, thereby preventing accused persons from availing their right to default bail. This, according to the petitioner, results in arbitrary detention contrary to Article 21. To substantiate the submissions, reliance was placed upon various precedents, including Maneka Gandhi vs Union of India (1978) 1 SCC 248, Bikramjit Singh vs. State of Punjab (2020) 10 SCC 616, Rajnikant Jivanlal vs Intelligence Officer, NCB (1989) 3 SCC 532, Tunde Gbaja vs CBI (2007 SCC OnLine Del 450), Ritu Chabbaria vs Union of India (2023 SCC OnLine SC 502), Anand Prakash vs Assistant Registrar, Cooperative Societies (1966 SCC OnLine All 378), Arvind Kejriwal vs CBI (2024 SCC OnLine SC 2550), and K Vadivel vs K Shanti (2024 SCC OnLine SC 2643).

Opposing the petition, the counsel for the Union of India argued that the grounds urged were misconceived. It was submitted that the alleged misuse of Section 193(9) to deny default bail under Section 187(3) is untenable as the proviso appended to Section 193(9) contains adequate safeguards. It was argued that the Hon’ble Supreme Court has consistently held that mere apprehension of misuse is not a ground to challenge the constitutional validity of a provision. Reliance was placed on judgments including Rishabh Agro Industries Ltd. vs PNB Capital Services Ltd. (2000) 5 SCC 515, Padma Sundara Rao vs State of Tamil Nadu (2002) 3 SCC 533, Saregama India Ltd. vs Next Radio Ltd. (2022) 1 SCC 701, Mafatlal Industries Ltd. vs Union of India (1997) 5 SCC 536, Collector of Customs vs Nathella Sampathu Chetty (1962 SCC OnLine SC 30), Sushil Kumar Sharma vs Union of India (2005) 6 SCC 281, and State of Jharkhand vs Shiv Shankar Sharma (2022) 19 SCC 626.

The respondents argued that the statutory language is clear and unambiguous, and that courts cannot interpret words into statutes when the legislature has not provided them. The respondents further submitted that if misuse is apprehended, it is the role of the legislature to amend, repeal, or modify the law.

The Bench carefully examined Section 193(9) of BNSS, 2023, which states: “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (3) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence.” The court noted the proviso that “further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court.”

The court observed that the power to conduct further investigation is not unfettered. It stated: “Thus, what we find is that the power to conduct further investigation as conferred on the investigating agencies under Section 193(9) is not unfettered; the proviso appended thereto contains adequate safeguards on the arbitrary use of the power.” The court stated that further investigation during trial requires the court’s permission and is subject to a ninety-day limit, extendable only with leave of the court.

On the issue of default bail, the court recorded: “Section 193(9) does not in any manner act as a camouflage to such right.” It further stated that Sections 193(9) and 187(3) operate in different fields. Addressing the concern about absence of a time limit, the court pointed to Section 193(1), which mandates that investigation be completed without unnecessary delay.

The Bench concluded that adequate safeguards exist to protect the accused’s right to default bail, even where further investigation is undertaken. It further observed that “any possible potential misuse of a statutory provision is not a ground available to challenge the same and to term it unconstitutional.”

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The court referred to the Supreme Court’s decision in Padma Sundara Rao, which held: “While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.” Similarly, in Rishabh Agro Industries Ltd., the Supreme Court stated: “While interpreting, this Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it by having recourse to appropriate procedure.”

The court also cited Mafatlal Industries Ltd., reiterating that “mere possibility of abuse of a provision cannot be a ground for holding a provision procedurally or substantively unreasonable.” Observations in Kesavananda Bharati v. State of Kerala and other precedents were noted to support this principle.

After detailed consideration, the Bench concluded: “For the discussions made and reasons given above, we find ourselves in complete disagreement with the submissions made by the petitioner.” Accordingly, it ordered: “Resultantly, the writ petition fails which is hereby dismissed.” The court directed that there would be no order as to costs.

Advocates Representing the Parties
For the Petitioner: Mr. Yash Mishra, Mr. Yuvraj Singh, Mr. Harshvardhan Singh, Mr. Siddhant Kumar, Mr. Nikhil Kr. Singh, Ms. Tanushree Karnawat, and Ms. Shasya Singh, Advocates

For the Respondents: Mr. Amol Sinha, ASC (Crl) with Mr. Ashvini Kumar and Mr. Kshitiz Garg, Advocates for State; Mr. Ishkaran Singh Bhandari, CGSC with Mr. Piyush Yadav, Advocate for UOI

Case Title: Yash Mishra v. State of NCT of Delhi & Ors

Neutral Citation: 2025: DHC:7325-DB

Case Number: W.P.(CRL) 3101/2024

Bench: Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela