Rajasthan High Court Quashes Magistrate’s Order Extending UAPA Accused’s Custody; Says Only Special Or Sessions Court Can Authorise Remand Beyond 90 Days Under NIA Act
Safiya Malik
The High Court of Rajasthan at Jaipur, Single Bench of Justice Sudesh Bansal set aside the order of the Chief Judicial Magistrate that had extended the judicial custody of an accused charged under the Unlawful Activities (Prevention) Act, 1967, by a further 90 days and denied him default bail. The Court found the extension to be without jurisdiction and therefore illegal. It was held that the power to extend the 90 days’ remand rested solely with the Special Court or, if none was constituted, with the Court of Sessions. The High Court observed that offences under the UAPA are scheduled offences under the National Investigation Agency Act, 2008, and consequently fall within the jurisdiction of Special Courts established under Section 22 of the NIA Act, directing that the accused be released on default bail under appropriate conditions.
The case arose from an FIR registered on 17 September 2023 at Police Station SOG, Jaipur, alleging that the accused was involved in anti-religious activities through social media and was in contact with individuals from Pakistan. The offences were registered under Section 153A of the Indian Penal Code and Section 13 of the Unlawful Activities (Prevention) Act, 1967. Following his arrest, the accused was placed in judicial custody for a period of 90 days.
Before the expiry of this period, the Chief Judicial Magistrate, Jaipur Metropolitan-II, by order dated 14 December 2023, extended the custody for an additional 90 days. The extension was granted on the basis of an application submitted by the Investigating Officer. The accused subsequently filed an application seeking default bail under Section 167(2) of the Code of Criminal Procedure, contending that the investigation had not been completed within the prescribed time and that the extension of custody was without jurisdiction. The Chief Judicial Magistrate dismissed this application on 20 December 2023, holding that it could not review its earlier order of extension.
The accused challenged both orders before the Additional Sessions Judge, who on 8 February 2024 dismissed the revision petition without entering into the merits of the case. The petitioner then approached the High Court under Section 482 of the Code of Criminal Procedure, now Section 528 of the Bharatiya Nyaya Sanhita, seeking to quash the orders and to recognize his right to default bail.
The parties referred to various statutory provisions and judicial precedents, including Section 43D of the UAPA and Section 22 of the National Investigation Agency Act, 2008, to determine the competent authority for extending custody and the procedure required for such extension
The Court recorded that offences under UAPA fall within the schedule to the NIA Act and that “only Special Court has the exclusive jurisdiction to try offences punishable under NIA Act, 2008 and in the absence of such Special Court, only Court of Sessions has the jurisdiction to try such offences, till Special Court is constituted.”
It examined the statutory framework, noting that Section 22 of the NIA Act provides that until a Special Court is constituted “the jurisdiction… be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter.”
The Court referred to Section 43D of UAPA, observing that extension of custody beyond 90 days requires “the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused.”
Relying on Jayeeta Das, the Court recorded that “the jurisdictional Magistrate would also be clothed with the jurisdiction to deal with the remand of the accused albeit for a period of 90 days only because an express order of the Sessions Court or the Special Court… authorising remand beyond such period would be required.” It noted that the Supreme Court had clarified that any extension of custody beyond the first 90 days by a Magistrate is “grossly illegal.”
Applying these principles, the Court observed that the prosecution had not shown “that the Chief Judicial Magistrate was well within its jurisdiction to extend period of detention nor any express order of Sessions Court or Special Court has been placed on record.” It further recorded that the case relied upon by the prosecution was inapplicable because in that matter “investigation was not even taken up by NIA… and no Special Court had been designated,” circumstances not present here.
Thus, the Court held that the impugned extension order was “grossly illegal and perverse as much as beyond his jurisdiction.”
On the issue of default bail, the Court noted that the petitioner had been in custody since 17.09.2023 and that investigation was not completed within 90 days. The Court stated that “an indefeasible right… has accrued in favour of petitioner, as envisaged under Section 167(2) of Cr.P.C. (now Section 187 of BNSS).” It recorded that the petitioner had availed this right before filing of the charge sheet and that the Magistrate’s rejection rested solely on the earlier extension order, which itself stood invalid.
The Court ordered that “impugned orders dated 14.12.2023, 20.12.2023, 08.02.2024 are set aside.” It directed that the petitioner “may be released on default bail by the trial Court on suitable terms and conditions, as deem fit by the trial Court, to ensure regular presence of petitioner during course of trial and not to leave the country until completion of trial in the present case.” It also stated that the stay application and all pending applications “stand disposed of.”
Advocates Representing the Parties
For the Petitioner: Mr. Aaryan Pareek, Mr. Aditya Jain, Mr. Tahir
For the Respondents: Mr. Rajesh Choudhary, G.A.-cum-A.A.G., Mr. Rishi Raj Singh Rathore, PP
Case Title: Mohd. Sohail Bishti v. State of Rajasthan & Anr.
Case Number: S.B. Criminal Misc. Petition No. 1289/2024
Bench: Justice Sudesh Bansal
