While setting aside an order of the Chief Judicial Magistrate extending the judicial custody of an accused under UAPA from 90 days to 180 days, the Rajasthan High Court has affirmed that Judicial Magistrate would have the jurisdiction to deal with remand of accused for a period of 90 days only but for further extension, an express order of Sessions Court or Special Court would be required.

The Petitioner had approached the High Court by filing a petition under Section 482 Cr.P.C. (now Section 528 of BNSS) assailing the order whereby the judicial custody of the petitioner, in respect of FIR registered under Section 153A IPC and Section 13 of the Unlawful Activities (Prevention) Act, 1967 (UAPA), was extended from 90 days to 180 days.

Referring to the judgment of the Apex Court in The State of West Bengal v. Jayeeta Das (2024), the Single Bench of Justice Sudesh Bansal held, “Hence, from the above-referred judgment it is clear that 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.”

Advocate Aaryan Pareek represented the Petitioner, while Government Advocate cum Addl. Advocate General Rajesh Choudhary represented the Respondent.

Factual Background

The FIR came to be registered for offences under Section 153A IPC and Section 13 of UAPA, 1967. As per the FIR, the petitioner was found to be involved in anti-religious activities on social media and was in contact with Pakistani members. As per the FIR, videos relating to inciting and instigating people against other religions were available on the social media account of the petitioner.

Arguments

It was the Petitioner’s case 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 (NIA Act), 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.

Reasoning

The Bench explained that since FIR was registered for offences under section 13 of UAPA, 1967, and offences under UAPA are scheduled offences under the NIA Act, 2008, for such offences, the Special Court defined under section 2(h), 2008, is competent and has jurisdiction to try such offences. On a perusal of the provisions of the Act, the Bench stated that only Special Court has the exclusive jurisdiction to try offences punishable under NIA Act, 2008, and in the absence of sucha Special Court, only the Court of Sessions has the jurisdiction to try such offences, till the Special Court is constituted. Further, if the detention of the accused is required beyond the statutory period of 90 days, the Public Prosecutor has to provide a progress report of the investigation specifying reasons for the detention of the accused.

Coming to the facts of the case, the Bench noted that the petitioner was subjected to judicial custody on September 17, 2023 for a period of 90 days but vide order dated December 14, 2023, passed by Chief Judicial Magistrate, the period of judicial custody was further extended for a period of 90 days but neither any valid contention was raised by the Public Prosecutor, to show that the Chief Judicial Magistrate was well within its jurisdiction to extend period of detention nor any express order of Sessions Court or Special Court was placed on record authorising extension of remand period.

“Hence, 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”, it stated.

The Bench thus quashed the order passed by Chief Judicial Magistrate to the extent that the further extension of detention period was de hors to the provisions of UAPA and NIA.

On the aspect of default bail, the Bench explained, “Although, this Court is primarily of the view that application to release the petitioner on default bail should have been submitted before the Sessions Court, however, since right of default bail is indefeasible right, conferred on the accused by statutory provisions of law and is connected with the fundamental right of life and liberty, as enshrined under Article 21 of the Constitution of India, hence, instead of entering into such technical issues, this Court, in order to protect legal and constitutional right of petitioner, confirms his right to be released on default bail.”

Thus, holding that an indefeasible right to release on default bail accrued in favour of the petitioner, as envisaged under Section 167(2) of Cr.PC (now Section 187 of BNSS), the Bench allowed the Petition. “Petitioner may be released on default bail by the trial Court on suitable terms and conditions, as deem fit by the trial Court, to ensure regular presence of petitioner during course of trial and not to leave the country until completion of trial in the present case”, it ordered.

Cause Title: Mohd. Sohail Bishti v. State Of Rajasthan (Case No.: S.B. Criminal Miscellaneous (Petition) No. 1289/2024)

Appearance

Petitioner: Advocates Aaryan Pareek, Aditya Jain, Tahir

Respondent: Government Advocate cum Addl. Advocate General Rajesh Choudhary

Click here to read/download Judgment


Rajasthan HCJustice Sudesh Bansal

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.