Order Extending Time For UAPA Investigation Only Postpones Default Bail, Not Appealable: Delhi High Court

The Delhi High Court has held that an order extending the period of investigation from 90 days to 180 days under Section 43D(2)(b) of the Unlawful Activities (Prevention) Act (UAPA) is an interlocutory order and is not appealable under Section 21 of the National Investigation Agency (NIA) Act.

A division bench comprising Justice Prathiba M. Singh and Justice Vikas Mahajan held that such an order merely postpones the accused's right to seek default bail and does not finally determine any substantive rights.

“An order granting further extension would not even be an intermediate order as the order granting extension does not even have trappings of irretrievable consequences. They are not orders which are in between but are orders wherein the Trial Court has merely exercised discretion to grant extension subject to satisfaction of certain conditions. The right to default bail is not rejected but merely postponed, when the extension is granted,” the Court said.

It reiterated the position held in Syed Shahid Yousuf case that the order granting extension of time for investigation would only be amenable to judicial review under Section 482 of CrPC or Section 528 of BNSS.

The Court was dealing with an appeal against an order passed by the Special NIA Court allowing NIA's application to extend the period of investigation in a case from 90 days to 180 days under Section 43D(2)(b) of the UAPA.

The case arose from an FIR registered by the NIA on March 13. According to the prosecution, the six appellants, all Ukrainian nationals, were allegedly conspiring with local ethnic armed groups in India to compromise national security and carry out attacks in Myanmar.

They were arrested on March 13 from airports in Delhi and Lucknow and were subsequently remanded to police custody and then judicial custody.

The extension of UAPA investigation also resulted in continuation of their judicial custody beyond the initial 90-day period.

The NIA had moved the application seeking extension of time for investigation up to 180 days, stating that the probe was still underway and that several aspects of the alleged conspiracy remained to be investigated.

It was the appellants' case that the impugned order defeated their statutory right to seek default bail after expiry of 90 days and, therefore, was appealable. The NIA, however, raised a preliminary objection, arguing that the extension order was merely an interlocutory order against which no appeal would lie under Section 21 of the NIA Act.

The Court distinguished its earlier decision in State v. Anamul Ansari, which had held that an order refusing extension of time for investigation is appealable because it results in the accused becoming entitled to default bail.

It noted that the decision in Anamul Ansari has been challenged before the Supreme Court and is pending for consideration.

The Court said that grant of extension has a clear consequence for the accused i.e., that at the expiry of 90 days the Appellant would not be entitled to default bail. However, it added that such right to default bail is a right which is governed by the statute itself i.e., Section 43D(2) of UAPA.

The Bench ruled that it is not an absolute right but a consequence which may be deferred or postponed by the Trial Court if it is satisfied as to the progress of investigation and specific reasons for continued detention of the accused.

“If the extension is granted, the right to default bail is not rejected but merely the availment of default bail is postponed to the 181st day, instead of the 91st day. The nature of such an order is, therefore, merely interlocutory and does not have finality attached to it,” it said.

It added that considering the seriousness of allegations in respect of offences under UAPA and the complexity of cases, the need for extension of time for investigation in bona fide cases is understandable.

“Thus, the intention of the legislature is not to make such an order an appealable order under Section 21 of the NIA Act, as at the stage when the extension is granted, the same is based on the report of the Public Prosecutor which is only seen by the Trial Court and the merits of the application is to be merely assessed for the purpose of granting extension,” the Court said.

Accordingly, the Court directed that the appeal be renumbered as a petition under Section 482 of the Code of Criminal Procedure or Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and he placed before the appropriate roster bench.

Title: HURBA PETRO AND OTHERS v. UNION OF INDIA AND OTHERS

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