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2025 Supreme(Online)(Raj) 12107
HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Sudesh Bansal, J
Mohd. Sohail Bishti – Appellant
Versus
State Of Rajasthan – Respondent
S.B. Criminal Miscellaneous (Petition) No. 1289/2024
For the Appellants/Petitioners: Aaryan Pareek, Aditya Jain, Tahir
For the Respondents: Rajesh Choudhary, Rishi Raj Singh Rathore
A Judicial Magistrate lacks jurisdiction to extend judicial detention beyond the statutory 90 days in UAPA cases; such an extension is the exclusive domain of a Special Court or Court of Sessions, and failure to comply vests the accused with an indefeasible right to default bail.
Headnote:The petitioner challenged orders extending judicial detention beyond 90 days for offenses under the Unlawful Activities (Prevention) Act (UAPA), 1967, and the denial of default bail by the Magistrate. The Court examined whether a Judicial Magistrate possesses the jurisdiction to extend detention beyond 90 days in UAPA cases and whether the petitioner acquired an indefeasible right to default bail under Section 167(2) CrPC upon the lapse of the statutory period without a valid charge sheet or extension order. The Court determined that under the NIA Act, 2008 and UAPA, 1967, a Special Court—or a Court of Sessions in the absence of a Special Court—holds exclusive jurisdiction to order detention extensions beyond 90 days. The ratio decidendi is that while a Magistrate may handle initial remand, they lack authority to extend the investigation period beyond 90 days under Section 43D(2) of UAPA; furthermore, the failure to provide a public prosecutor's report and valid judicial authorization renders such extensions illegal, thereby crystallizing the accused's indefeasible right to default bail. The court set aside the impugned orders and directed the trial court to release the petitioner on default bail upon suitable terms and conditions.
| Table of Content |
|---|
| 1. challenge to jurisdictional competence of magistrate in extending uapa remand. (Para 1 , 2 , 3 , 4 , 5) |
| 2. statutory analysis of nia act and uapa regarding court jurisdiction. (Para 6 , 7 , 8 , 9 , 10 , 11) |
| 3. right to default bail accruing due to illegal remand extension. (Para 12 , 13 , 14 , 15 , 16) |
| 4. final order granting default bail upon setting aside illegal remand orders. (Para 17 , 18) |
Order
1. By means of filing instant misc. petition under Section 482 Cr.P.C. (now Section 528 of BNSS), petitioner has assailed the order dated 14.12.2023 (Annexure P-2), passed by Chief Judicial Magistrate, Jaipur Metropolitan-II, whereby the judicial custody of the petitioner, in respect of FIR no. 28/2023, registered at Police Station SOG, Jaipur, for offences under Section 153A IPC and Section 13 of the Unlawful Activities (Prevention) Act, 1967 (for short, “UAPA”), was extended from 90 days to 180 days as also order dated 08.02.2024 (Annexure P-4), passed by Additional Sessions Judge No.7, Jaipur Metropolitan-II, whereby the criminal revision petition, filed thereagainst, was also dismissed and has also prayed for grant of default bail which was denied by CJM, vide order dated 20.12.2023 (Annexure P-3).
2. It has been stated by counsel for petitioner that an FIR came to be registered against petitioner on 17.09.2023, for offences under Section 153A IPC and Section 13 of UAPA and was confined to judicial custody, for a period of 90 days, from that day onwards. The period of judicial custody of 90 days was to end on 15.12.2023 but vide impugned order dated 14.12.2023, the period of judicial custody was extended further by 90 days by the Chief Judicial Magistrate, who was not competent to grant such extension as power was vested in Special Court or Court of Sessions. After the expiry of period of 90 days, i.e. on 15.12.2023, the petitioner filed an application for grant of default bail under Section 167(2) of CrPC since the investigation had not been completed yet and charge sheet had not been issued, but application was dismissed by Chief Judicial Magistrate, Jaipur Metropolitan-II, vide order dated 20.12.2023, stating inter alia that it cannot review over its order dated 14.12.2023. The review petition, filed thereagainst, has been rejected by Additional Sessions Judge No.7, Jaipur Metropolitan-II, vide order dated 08.02.2024, without interfering with the order impugned on merits.
3. It has been contended by counsel for petitioner that the court of Chief Judicial Magistrate was not competent to pass the order of extension of Judicial Custody, since as per Section 22 of National Investigation Agency Act, 2008 (for short “NIA Act, 2008”), only a Special Court is competent to pass order in offences relating to UAPA, 1967 and in absence of Special Court, Court of Sessions has the jurisdiction to try the matter till Special Court is constituted. In support of his contentions, the counsel has placed reliance on the judgment of Hon’ble Supreme Court in case of Bikramjit Singh v. State of Punjab [(2020) 10 SCC 616], wherein it was held that only the Special Court or, in its absence, the Court of Sessions has jurisdiction to extend period for investigation, under Section 43D(2) UAPA, 1967.
4. It has further been pointed out by the counsel for petitioner that as per Section 43D(2)(b) of UAPA, 1967, in case investigation is not completed within the statutory period of 90 days, the period of detention can be extended upto further period of 90 days, but only if a report is submitted by Public Prosecutor, citing specific reasons as to why further extension of detention period is required, as has been held by Apex Court in case of Union of India v. Mubarak @ Mohammed Mubarak [(2019) 6 SCC 252]. In the present case, no report has been submitted by the Public Prosecutor, instead the impugned order dated 14.12.2023 has been passed after relying upon the application of Investigating Officer, hence the order is bad in law on merits as also b
