UAPA | Only Special Or Sessions Court Can Extend Accused's Custody Beyond 90-Days, Magistrate Court Can't: Rajasthan High Court
The Rajasthan High Court has set aside the order of the Chief Judicial Magistrate that extended judicial custody of a Unlawful Activities (Prevention) Act, 1967 (UAPA) accused by another 90 days, and denied his right to default bail, opining it to be without jurisdiction, illegal and perverse.The bench of Justice Sudesh Bansal stated that the offences under UAPA were scheduled offences under...
The Rajasthan High Court has set aside the order of the Chief Judicial Magistrate that extended judicial custody of a Unlawful Activities (Prevention) Act, 1967 (UAPA) accused by another 90 days, and denied his right to default bail, opining it to be without jurisdiction, illegal and perverse.
The bench of Justice Sudesh Bansal stated that the offences under UAPA were scheduled offences under the National Investigation Agency (NIA) Act, 2008, and hence fell within the jurisdiction of Special Courts constituted under Section 22 of the NIA Act.
It was held that the power to extend the 90 days remand lied only with the Special Court or in its absence, the Court of Sessions. The High Court observed,
"The Judicial Magistrate would also have the jurisdiction to deal with remand of accused for a period of 90 days only but for further extension of the remand period, an express order of Sessions Court or Special Court would be required."
The 23-year old petitioner was alleged to be involved in anti-religious activities on social media and was in contact with Pakistani members. An FIR was filed against him under UAPA post which he was sent to judicial custody of 90 days. This custody was extended for another 90 days by the CJM and his application for grant of default bail was also rejected.
After hearing the contentions, and perusing the records as well as the relevant provisions, the Court observed that only Special Court had exclusive jurisdiction to try offences under NIA Act, and in absence of such Special Court, only Court of Sessions had the jurisdiction. If the accused's detention was required beyond the 90 days, the Public Prosecutor had to provide progress report specifying reasons.
Reference was made to the Supreme Court case of the State of West Bengal v Jayeeta Das and it was highlighted that the case made it clear that the Judicial Magistrate had the jurisdiction to deal with the remand of accused for 90 days only but for further extension, an express order of Sessions Court or Special Court was required.
In this background, the Court highlighted that in the present case, neither any progress report was shown by the Public Prosecutor nor any express order of Sessions Court or Special Court was placed on record authorizing extension of remand period.
“…this Court is of the view that the order of Chief Judicial Magistrate, extending the remand of accused beyond the period of 90 days was grossly illegal and perverse as much as beyond his jurisdiction.”
Furthermore, on the rejection of default bail, the Court held that even though the same should have been submitted before the Sessions Court, but since the right of default bail was an indefeasible right, connected with the fundamental right under Art. 21, instead of entering into technical issues, the Court confirmed the right of the accused to be released on bail.
Accordingly, the petition was allowed, setting aside the orders of the CJM, and the petitioner was directed to be released on default bail by the trial court.
Title: Mohd. Sohail Bishti v State of Rajasthan
Citation: 2025 LiveLaw (Raj) 374
For petitioner(s): Mr. Aaryan Pareek, Mr. Aditya Jain, Mr. Tahir through VC
For Respondent(s): Mr. Rajesh Choudhary, G.A. cum A.A.G, Mr. Rishi Raj Singh Rathore, PP