Granting bail to Sudha Bharadwaj, an accused lawyer-activist in the Elgar Parishad case, the Bombay High Court confirmed that her custody under the Unlawful Activities Prevention Act (UAPA) was extended by a sessions court, which had no power to do so. Was.
A bench of Justices NJ Jamadar and SS Shinde observed that when a special court designated under the National Investigation Agency (NIA) Act, 2008 existed in Pune, the Sessions Judge had no jurisdiction to extend the custody beyond the prescribed 90 days. Was. This reading of the law on which the “court” is competent to extend the detention led the High Court to conclude that Bhardwaj could be granted default bail.
What is default bail?
The Code of Criminal Procedure sets a time limit for investigative agencies to complete an investigation during which the accused can be kept in custody. If the agency fails to comply with these deadlines, the accused becomes entitled to what is commonly called ‘default’ or ‘regular’ bail.
Under Section 167 of the CrPC, 1973, the maximum period of detention for offenses of the highest category is 90 days – punishable with death, imprisonment for life or for a term not less than 10 years.
However, under the UAPA, the court can extend the custody of an accused by 180 days if the investigating agency asks for more time to investigate the matter. This makes the maximum custody of 180 days almost certain for those accused of offenses under the UAPA, as a court can extend the custody beyond the limits of the CrPC.
In the Elgar Parishad case, the legal question was to be determined whether this extension was made by the rightful court. The accused argued that since the extension was done by a court with no competence, they were entitled to regular bail on completion of 90 days of pre-trial detention.
How was the custody extended in this case?
In November 2018, when the 90-day period of arrest and production before the magistrate had expired, the public prosecutor filed for an extension before the sessions judge, who then passed an order extending custody.
Through information obtained under the RTI Act, the accused showed that the sessions judges who extended custody and took cognizance of offenses were not appointed special judges under the NIA Act by the Center or the Maharashtra government. During the same time, “Shri Anirudh Yashwant Thatte, Shri Abhay Narharrao Sirsikar and Shri Shyam Hariram Gwalani, learned Additional Sessions Judges were appointed by the Government of Maharashtra as Special Judges/Additional Special Judges to hear cases under section 22 The NIA Act, Notification, dated 5th March, 2019, 29th June, 2018 and 11th July, 2017, for Pune district,” noted the High Court.
Who is a special judge under the law?
Prior to 2008, under the UAPA, the jurisdiction to try offenses punishable with a maximum imprisonment of not more than seven years vested with the Court of Session, and for offenses punishable with a maximum imprisonment of 7 years with a magistrate.
In 2008, the NIA Act was passed and the UAPA was also amended. With this, all scheduled offenses have to be tried exclusively under the NIA Act by special courts, whether investigated by the NIA or the investigating agency of the State Government. If there are no designated courts, the Court of Session, which is the Supreme Court to try criminal offences, will have jurisdiction.
Why was the extension challenged?
The accused relied on the 2020 judgment of the Supreme Court in Bikramjit Singh v State of Punjab. The judgment said that only a special court has jurisdiction to extend the detention under the UAPA to 180 days. He argued that since the Maharashtra government had designated a special court at Pune at that time, only that court could have jurisdiction. This meant that the Sessions Judge extending custody had no jurisdiction and the order was invalid in law. It would follow that if the extension was invalid, the accused had a right to grant default bail before the chargesheet was filed.
The NIA argued that since it has taken over the investigation as per the orders passed by the Centre, only the courts designated by the central government will have jurisdiction to hear the cases. But in the absence of such courts, the Sessions Judge heard the matter right.
However, the 2020 Supreme Court decision by a bench headed by Justice Rohinton Nariman was confirmed by subsequent rulings. In September, a three-judge bench of Justices UU Lalit, Bela Trivedi and S Ravindra Bhat said that only in the absence of special courts, a sessions court can extend custody under the UAPA. Relying on the decisions of the Supreme Court, the Bombay High Court ruled in favor of the accused.
Why did the Bombay High Court reject the bail of the other accused?
While the court held that the extension of his custody was without validity, it did not quash the orders as the state was able to prove that they were passed “in good faith” and “without any prejudice to the accused”.
The court also held that since only Bhardwaj had applied for default bail at that time, while the rest of the accused did not, only she was entitled to bail.
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