UAPA | Plea For Default Bail Filed A Day Before Expiry Of Authorized Custody Period Not Maintainable: Jammu & Kashmir High Court
The Jammu and Kashmir and Ladakh High Court has made it clear that a plea for default bail filed a day before the expiry of authorized custody period under the Unlawful Activities (Prevention) Act (UAPA) is not maintainable.Finding that the appellant in this case had moved an application for default bail on the 90th day of the 90-days authorized custody period, a bench of Justices Sanjeev...
The Jammu and Kashmir and Ladakh High Court has made it clear that a plea for default bail filed a day before the expiry of authorized custody period under the Unlawful Activities (Prevention) Act (UAPA) is not maintainable.
Finding that the appellant in this case had moved an application for default bail on the 90th day of the 90-days authorized custody period, a bench of Justices Sanjeev Kumar and Rajesh Sekhri observed,
"In the instant case we find that the appellant had moved an application for default bail on 11-04-2023 which was the 90th day of the authorized custody of the appellant. That being so, the application moved by the appellant for default bail was stillborn and not maintainable in law, We cannot lose sight of the fact that the prosecution has now presented the challan after completing the investigation within the period authorized by the NIA Court”.
The court said no right ever accrued to the appellant to seek default bail, yet such application was moved by the appellant prematurely on 11-04-2023, which was the 90th day of the extended remand. "That application was not pursued and was rightly dismissed as infructuous," it held.
The appellant, arrested in January under UAPA and was remanded to 90 days judicial custody until April 12, 2023. On the 90th day of his authorised detention the appellant applied for default bail, while the prosecution sought a 60-day extension. After hearing the parties, the NIA Court at Kupwara granted a six-day extension from April 11, 2023 and consequently, the appellant's default bail application was dismissed on April 12, 2023. The investigation concluded within the extended period, and the charge sheet was presented to the NIA Court. Hence this appeal.
Assailing these orders the appellant contended that the orders extending his remand were illegal, alleging that his custody was unjustly extended beyond the permissible 90-day limit. The appellant also raised concerns about the procedural aspects, asserting that the court had not followed the mandatory requirements outlined in Section 43-D (2) (b) of the UA (P) Act. Additionally, the appellant challenged the dismissal of his default bail application, citing various legal precedents.
On the other side, the prosecution argued that the appellant was involved in heinous offenses, justifying the need for an extended custody period. They maintained that the investigation required additional time, and the court's orders were in compliance with the relevant legal provisions.
After examining the contentions raised by both parties the court delved into the intricacies of Section 167 CrPC and Section 43-D of UAPA and emphasized that these provisions specify the maximum period during which an individual accused of an offence under UAPA can be held in custody to facilitate the investigating agency in completing the investigation and filing the charge sheet, if necessary. The court clarified that these provisions do not grant an automatic right to bail but rather establish a timeframe for the investigative process.
The court further elaborated that an accused person is entitled to file a formal application for default bail once the investigation exceeds the stipulated timeframe. However, in the case at hand, the appellant's premature application for default bail, filed on the 90th day of custody, was deemed infructuous as the prosecution had presented the charge sheet within the extended period authorized by the NIA Court.
Highlighting the importance of principles of natural justice in such cases the court emphasised that the accused must be made aware of the extension request by the prosecution and given the opportunity to raise objections. In this instance, the court found that the appellant had been duly informed and was present virtually when the application for extension of remand was being considered and since no objections were raised, the court ruled that the accused had not been condemned unheard.
“…It can safely be inferred that the appellant, though was present and was aware when the application of the prosecution for extension of remand beyond period of 90 days was being considered, yet he raised no objection. If that be the clear position emerging in the facts and circumstances of the case, it is difficult to accept the contention of the learned counsel for the appellant that the appellant has been condemned unheard in the matter of grant of extension of remand”, the bench recorded.
In view of the same, the court concluded that the impugned orders had no legal flaws or procedural irregularities. The appellant has no right to default bail, especially after the presentation of the charge sheet, the bench said while dismissing the appeal.
Case Title: Syed Irfan Abdullah Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 280
Counsel For Petitioner: Mr. Umair Ahmad Andrabi, Advocate
Counsel For Respondent: Mr. Mohsin Qadri, Sr. AAG with Ms. Maha Majeed, Assisting Counsel.