Sudha Bharadwaj vs National Investigation Agency And Anr

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The applicants, accused in NIA Special Case No.871 of 2020 arising from FIR No.4 of 2018 registered with Vishrambaug Police Station, Pune (the Elgar Parishad case), sought enlargement on bail under section 167(2) of the Code of Criminal Procedure, 1973 read with section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The primary ground urged was that the Sessions Judge who extended the period for investigation and subsequently took cognizance of the offences was not legally empowered to do so, thereby entitling the applicants to default bail.

The applications raised common questions of law concerning the competence of the Additional Sessions Judge to extend the period of investigation under section 43-D(2) of UAPA and to take cognizance of offences punishable under sections 120B, 121, 121A, 124A, 153A, 505(1)(b), 117 and 23 of the Indian Penal Code, 1860 as well as sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of UAPA. Since the factual backdrop was largely common to both applications, they were heard and determined together by a common judgment and order.

The Bombay High Court examined the legal framework governing the designation of Special Courts under UAPA, the jurisdiction of the Sessions Court to extend remand and take cognizance under UAPA, and the right to default bail under section 167(2) CrPC read with section 43-D(2) UAPA when the prescribed period for investigation expires without filing of a charge-sheet before a competent court.

Catchwords: default bail Unlawful Activities (Prevention) Act UAPA section 167(2) CrPC section 43-D(2) UAPA competence of court extension of investigation period cognizance NIA Elgar Parishad case Special Court Sessions Judge indefeasible right to bail remand charge-sheet investigation period