Answer 2.

STATUTORY PROVISIONS
 Section 167 CrPC makes it clear that whenever a person is arrested and detained in
custody, the time for investigation relating to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than 10 years, cannot
ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being
satisfied that adequate grounds exist for so doing, to a maximum period of 90 days.
 The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused
person shall be released on bail if he is prepared to and does furnish bail on expiry of
the maximum period of 90 days, and every person so released on bail be deemed to be
so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
 Furhter, Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the
first proviso to Section 167(2) of the Code can be extended up to a maximum period of
180 days if “the Court” is satisfied with the report of the public prosecutor
indicating progress of investigation and specific reasons for detention of the accused
beyond the period of 90 days.
 All offences under the UAPA, whether investigated by the National Investigation
Agency or by the investigating agencies of the State Government, are to be tried
exclusively by Special Courts set up under that Act. “In the absence of any
designated Court by notification issued by either the Central Government or the State
Government, the fall back is upon the Court of Sessions alone.”
 Section 43D(4) of the UAPA talks about Anticipatory bail. It states that Nothing in
Section 438 of the Code shall apply in relation to any case involving the arrest of any
person accused of having committed an offence punishable under this Act.

REASONING
1. In the present case, An anticipatory bail dated 13-2-2020 was filed by Dr. Zahir and his
associates for the offences under provisions of UAPA Act and I.P.C before the Sessions
Court but the same was rejected on the grounds of severity of offence and no other reaons
for mentioned for rejection. Although the reasons for rejecting the Anticipatory bail was
not reasonable but the Sessions Court was correct in rejecting the anticipatory bail. It
 is clearly mentioned in the statute (UAPA) under section 43D(4) that section 438 of Crpc
shall not be applicable in relation to any case involving the arrest of any person
accused of having committed an offence punishable under UAPA.

2. In the present case, the remand order was passed by ilaqa magistrate and also the oral
default bail application was rejected by the same ilaqa magistrate. However, as per the
UAPA, All offences under the UAPA are to be tried exclusively by Special Courts set up
under that Act or in the absence of any designated Court the Court of Sessions is
competent to try the case.
 It means that, Ilaqa Magistrate was not competent to pass any remand order. In the
present case also, the order has been passed without its jurisdiction. So because of
this reason order passed by Ilaqa magistrate is not sustainable in the eyes of law.
Accordingly the revision application filled before the High Court on the ground of
wrongful rejection was correct.
 So, it is clear that the only Special Court had exclusive jurisdiction to extend the period of
90 days to 180 days under Section 43-D (2)(b) of the UAPA. As also observed recently in
the case of Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, the Supreme Court
has noted that all offences under the UAPA, whether investigated by the NIA or by
the investigating agencies of the State Government, are to be tried solely by Special
Courts set up under the NIA Act.

3. Once the maximum period for investigation of an offence is over, under the first proviso
(a) to Section 167(2), the accused shall be released on bail as the indefeasible right to
default bail arose immediately, when the 90 day period was over. Therefore, Mr.
Zahir’s right to default bail was not extinguished by the filing of the charge sheet.
 The extent of this indefeasible right has been the subject matter of a number of judgments.
A beginning may be made with the judgment in Hitendra Vishnu Thakur v. State of
Maharashtra (1994) 4 SCC 602, which spoke of “default bail” under the provisions of
TADA read with Section 167 of the CrPC. The Court observed that once the period for
filing the chargesheet has expired and either no extension under clause (bb) has been
granted by the Designated Court or the period of extension has also expired, the accused
 person would be entitled to move an application for being admitted to bail under Section
20(4) TADA read with Section 167 of the CrPC and the Designated Court shall release
him on bail, if the accused seeks to be so released and furnishes the requisite bail.
 In Syed Mohd. Ahmad Kazmi v. State (2012) 12 SCC 1, Section 43-D of the UAPA came
up for consideration before the Court, in particular the proviso which extends the period
for investigation beyond 90 days up to a period of 180 days. An application for default
bail had been made as no charge sheet was filed within a period of 90 days of the
appellant’s custody. Despite the fact that the application was not taken up for hearing
before the filing of the charge sheet, the Court held that this since an application for
default bail had been filed prior to the filing of the charge sheet the “indefeasible
right” spoken of earlier had sprung into action, as a result of which default bail had
to be granted.
 In the case of Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, it was observed
by the Court that even an oral application for grant of default bail would suffice, and
so long as such application is made before the charge sheet is filed by the police,
default bail must be granted.
 In the recent judgement of Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, the
Court observed that an application for grant of default bail is made on expiry of the
period of 90 days (which application need not even be in writing) before a charge
sheet is filed, the right to default bail becomes complete. It is of no moment that the
Criminal Court in question either does not dispose of such application before the charge
sheet is filed or disposes of such application wrongly before such charge sheet is filed. So
long as an application has been made for default bail on expiry of the stated period
before time is further extended to the maximum period of 180 days, default bail,
being an indefeasible right of the accused under the first proviso to Section 167(2),
kicks in and must be granted.
 The court further observed that, we are dealing with the personal liberty of an accused
under a statute which imposes drastic punishments. The right to default bail is not mere
statutory rights under the first proviso to Section 167(2) of the Code, but is part of the
procedure established by law under Article 21 of the Constitution of India, which is,
 therefore, a fundamental right granted to an accused person to be released on bail once
the conditions of the first proviso to Section 167(2) are fulfilled.

4. In the present case, the charge sheet under the provisions of law was required to be filed
within 90 days but was actually filed within 180 days. However, no charge sheet was filed
even within 180 days under the UAPA Act, but post filing of the application for default
bail. Thus, undoubtedly the period of 180 days to file the charge sheet had elapsed. The
State can take advantage of the fact that in one case there is one charge sheet and
supplementary charge sheets are used to extend the time period in this manner by seeking
to file the supplementary charge sheet qua the offences under the UAPA Act even beyond
the period specified under Section 167 of the Cr.P.C beyond which default bail will be
admissible, i.e, the period of 180 days.
 In the recent case of Fakrey Alam v. State of U.P. (2021), the Supreme Court while
granting default bail to Fakhrey Alam, a person accused under Section 18 of the UAPA
Act, reiterated that default bail under first proviso of Section 167(2) of the Cr.P.C. is a
fundamental right and not merely a statutory right. The Court further observed that State
cannot take advantage of filing one charge sheet first and seeking time to file
supplementary charge-sheets to extend the time limit u/s 167(2).
 In the present case, Zahir and his other associates had satisfied all the requirements of
obtaining “default bail” which is he had put in more than 90 days in custody, no charge-
sheet had been filed against him and he was prepared to furnish bail for his release, they
all ought to have been released by the High Court on reasonable terms and conditions of
bail.
Hence, it can be said that there is procedural irregularity in the procedure followed by
Court of Magistrate and Sessions Court in passing custody orders and orders for rejection
of default bail and cancellation of default bail but the Court was correct in rejection of
anticipatory bail.

Yes, such excessive conditions of custody violate the personal liberty of an individual.
 Article 21 of the Constitution, which guarantees the right to life and liberty, also
mandates that any limitation of these fundamental rights must adhere to just, fair and
reasonable procedures. The due process set out in the law to guarantee this states that,
every time a person is arrested, he/she must be brought before a judicial magistrate within
24 hours. Any further detention must only be based on a judicial order with the
magistrate independently deciding whether the person should be detained or not.

 The importance of adherence to procedural fairness and the checks and balances asserted
on custodial powers by independent judicial authority assumes greater significance when
personal liberty is infringed upon for an extraordinarily long period by the use of
exceptional powers granted to the police under special laws. For example, under the
UAPA, 1967, obtaining ‘regular bail’ has been made more difficult than it is under
ordinary law, as it ‘prima facie’ assumes guilt instead of innocence of the accused.

 Further, under Section 43D(2) of UAPA, the time period for which a person can be kept
in jail for want of completion of investigation is 180 days. Under ordinary law, even in
the most heinous of offences, a person cannot be detained beyond 90 days if the police
fails to complete investigation. This is the right to be released on ‘default/statutory bail’.
According to Section 167 of the Code of Criminal Procedure, this itself is an exception,
as detention beyond 24 hours is not permitted even if the police investigation is
incomplete. Thus, Section 43D(2) of UAPA is an exception to the exception under
ordinary criminal law. Therefore, the burden of adherence to procedural fairness before
such an extended jail term is permitted has to be very high. However, this has not been
the case in practice and adherence to procedure has been lacking despite the purported
“gravity” of the cases.

 A review of recent cases involving application of this law demonstrates that though in
theory the purpose of Section 43D(2) is to grant additional time for the police to
uncover facts, in practice it ends up rewarding their incompetence and their
intention to ensure prolonged detention of citizens without trial. The story of this law,
therefore, reveals a sordid account of the evisceration of Article 21, non-adherence to
procedural fairness and utter disregard for a citizen’s liberty.
 Article 21 mandates that a citizen must not be made to suffer a single day extra in
custody without following due process. But Section 43D(2) fails to live up to this
promise. The pretence of adherence to due process in the name of its in-built safeguards
is exposed when we see that the full additional 90-day period is allowed mechanically to
the police. Despite collusion between the prosecutor and the police being apparent, the
“multi-layered scrutiny” does not come to the rescue. To add insult to injury, the accused
is blindfolded on the reasons for her own detention and the pretext of “gravity of offence”
continues to influence the decision on the question of liberty. It is clear that in UAPA
cases, it takes years of incarceration before our institutions take note of the serious
violations of constitutional rights suffered.

 There is no statutory provision having detailed discussion about then conditions to be