How a recent Delhi High Court Order reinforces disturbing trends in bail jurisprudence

IN a significant jolt to the principles of natural justice, including the presumption of innocence and fair trial, the Delhi High Court has stayed an Order that had refused to grant a mechanical extension of custody of the accused on national security grounds.

Acting with the speed of light, a division Bench of Justices Rekha Palli and Saurabh Banerjee passed the stay Order on November 19 in the absence of the accused persons and their lawyers.

The Bench also allowed the Delhi police to complete the investigation and ordered that the detention of the accused persons be extended until the next hearing, which is on November 26.

The Bench was hearing an urgent appeal filed by the Delhi police under the National Investigation Agency (NIA) Act, 2008, challenging an Order passed by the additional sessions judge, Dr Hardeep Kaur, rejecting the report of the prosecution seeking an extension of time to conclude the investigation in a case of an alleged “Al-Qaeda-inspired terror module”.

The Order of the additional sessions judge would have paved the way for the accused persons to get default bail had it not been stayed by the high court.

Brief facts

The special cell of the Delhi police claim that it had been receiving secret inputs that a highly radicalised Jharkhand-based group and some other “sympathisers” were conspiring and planning terror attacks. The police claim that one Dr Ishtiyaq Ahmed, hailing from Ranchi, was heading the group.

The police also claim that along with others, Dr Ishtiyaq visited Delhi several times for “planning and preparation of their sinister design”.

On July 15, 2024, the special cell of the Delhi police registered a first information report (FIR) in the case. Thereafter, police raided several locations, including Bhiwadi in Rajasthan, Hazaribagh and Rachi in Jharkhand, and Aligarh in Uttar Pradesh.

The police claim that seven persons were found taking weapons training from two trainers at Sare Kalan Ki Pahadi, Ajmeri Naka, Chaupanki, Bhiwadi, Rajasthan.

As per the police, during the raids, a total of six persons were arrested— Anamul Ansari, Shahbaz Ansari, Altaf Ansari, Hasan Ansari, Arshad Khan and Umar Farooq. One of the persons who was undergoing training and two trainers managed to escape into a deep forest.

Police claim that an assault rifle, pistol, revolver, hand grenade, elbow-shaped iron case, key remote control mechanism with battery, 66 live cartridges of different bores and other incriminating items and materials were recovered from the arrested persons. During the investigation, four more people were arrested by the police, including Dr Ishtiyaq Ahmed.

Based on interrogation and analysis of the mobile phones of accused persons during the investigation, the police claim that they discovered that the accused were conspiring for terror acts with the intent to disrupt the security and sovereignty of India.

Police added Sections 16, 17 and 18 of the Unlawful Activities (Prevention) Act (UAPA) to the case. The accused were arrested on August 22, 2024. Under the Code of Criminal Procedure Code of 1973 (CrPC), the investigation is required to be completed within 90 days from arrest.

However, if the offence pertains to a case under the UAPA, the prosecution can seek a further extension of 90 days to conclude the investigation subject to Section 43-D(2) of the UAPA.

Extension of time to conclude the investigation under UAPA

Section 43-D of the UAPA modifies the applicability of provisions of the CrPC in relation to offences under the UAPA. Section 43-D(2)(b) provides for the procedure to seek an extension of time to complete the investigation subject to:

• The prosecution showing that it has not been possible to complete the investigation within the 90-day period.

• A report being submitted by the public prosecutor.

• The report indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the 90-day period.

• The court being satisfied with respect to the report of the public prosecutor.

Since the Delhi police could not conclude the investigation within 90 days under the CrPC, an additional public prosecutor on November 16, 2024 filed a report under Section 43-D(2) of the UAPA seeking an extension of a further 90 days to the custody of the accused.

On November 18, 2024, the additional sessions judge rejected the application filed by the prosecutor observing that the application only showed the development and progress of the investigation. It did not state or disclose the justification for extending the custody of the accused to enable the investigation agency to complete its investigation.

The judge thus ruled that the prosecution had failed to set out a case for an extension of the statutory period to conclude the investigation.

Intervention by the Delhi High Court

The Delhi police immediately rushed to the Delhi High Court challenging the Order of the additional sessions judge. Calling the Order of the special court perverse, the counsel for the Delhi police submitted that despite taking note of the fact that substantial progress had been made regarding the investigation which could not be completed due to various reasons, including reasons attributable to the accused persons, the judge had declined to extend the time.

It was also argued that the trial court had failed to appreciate that it was absolutely necessary to detain the accused persons till the investigation was completed for which purpose a further time of 90 days was required by the investigating agency.

The report of the prosecutor was placed before the division Bench of the high court in a sealed cover. The Bench, after going through the report, agreed with the Delhi police that the reasons requiring further detention of the accused persons were clearly spelled out in the report.

“In these circumstances, we are of the view that the ongoing investigation is likely to be scuttled if the period for completion of investigation and detention of the accused is not extended till the next date,” the Bench said.

The Bench admitted the appeal filed by the Delhi police and stayed the Order of the trial judge, thereby halting the release of accused persons on default bail.

Technically Statist?

The case marks only the latest in a concerning trend in criminal cases, particularly those in which ‘national security’ issues have been invoked, where courts are inclined to favour State agencies over the accused when technical issues arise.

It may be recalled that in the Bhima Koregaon case, the Bombay High Court had quashed the extension Order given by the trial judge holding that the report seeking an extension of time was filed by the investigating officer, not the public prosecutor.

The investigating officer is in charge of the investigation. However, the reins of the prosecution are necessarily in the hands of the public prosecutor, the court had held.

However, the Supreme Court had set aside the high court order observing that there had been an application of mind by the public prosecutor as well as an endorsement by him. Thus, infirmities in the form would not entitle the accused to the benefit of a default bail when in substance there has been an application of mind.

As the maxim of ‘depriving liberty even for one day is one too many’ continues to be honoured more in the breach, the question arises, what if on November 26 the court finds that the accused are indeed entitled to default bail? Who will be responsible for them having spent ten days too many in custody?

On the other hand, if the court rules in favour of the NIA, what message does it send to trial courts on bail jurisprudence?