Case Note & Summary
The petitioners, five individuals arrested in Crime No.71/2022 registered by Panambur Police Station for offences under Sections 121, 121A, 120B, 153A, 109 of IPC and Sections 13, 18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA), filed a writ petition under Articles 226 and 227 of the Constitution challenging two orders: (1) the extension of remand/detention passed on 9.1.2023 by the 49th City Civil and Sessions Judge and Special Judge for Trial of NIA Cases at Bengaluru (CCH-50), and (2) the dismissal of their default bail application on 17.1.2023 by the same court. The petitioners were in judicial custody and were not produced before the court on 9.1.2023 when the remand was extended. The petitioners argued that the extension of remand without their production was illegal and without jurisdiction, and that they were entitled to default bail under Section 167(2) CrPC as the investigation was not completed within 60 days. The respondents, represented by the State, opposed the petition. The High Court examined the provisions of Section 167 CrPC and Section 43D(2) of UAPA. The court held that the order dated 9.1.2023 extending judicial custody without producing the accused was illegal and without jurisdiction, as the magistrate must have the accused before him to pass a valid remand order. The court also held that the default bail application was premature because under Section 43D(2) of UAPA, the maximum period of investigation is 90 days, and the petitioners had not completed 90 days in custody. Consequently, the court quashed the remand extension order dated 9.1.2023 and set aside the dismissal of the default bail application dated 17.1.2023, but clarified that the petitioners are not entitled to default bail at this stage and that the investigating agency may seek fresh remand in accordance with law.
Headnote
A) Criminal Procedure - Remand Extension - Section 167 CrPC - Extension of remand without production of accused is illegal and without jurisdiction - The Special Judge extended judicial custody of the petitioners on 9.1.2023 without producing them before the court, which is contrary to the mandatory requirement of Section 167 CrPC - Held that such an order is void ab initio (Paras 5-8). B) Criminal Procedure - Default Bail - Section 167(2) CrPC read with Section 43D(2) UAPA - Default bail cannot be claimed before expiry of 90 days in UAPA cases - The petitioners' default bail application was dismissed on 17.1.2023, but the period of 90 days had not expired - Held that the dismissal was premature and not sustainable (Paras 9-10).
Issue of Consideration
Whether the order of extension of remand passed by the Special Judge on 9.1.2023 without production of the accused is legal and whether the dismissal of default bail application on 17.1.2023 is valid.
Final Decision
The High Court allowed the petition in part. The order dated 9.1.2023 extending judicial custody of the petitioners without production was quashed as illegal and without jurisdiction. The order dated 17.1.2023 dismissing the default bail application was set aside, but the court clarified that the petitioners are not entitled to default bail at this stage as the period of 90 days under Section 43D(2) UAPA had not expired. The investigating agency is at liberty to seek fresh remand in accordance with law.
Law Points
- Remand extension without production of accused is illegal
- Magistrate lacks jurisdiction to extend remand beyond 15 days under Section 167 CrPC
- Default bail under Section 167(2) CrPC cannot be claimed before expiry of 90 days in UAPA cases
