RIGHT TO 'DEFAULT BAIL' VIS-À-VIS TERRORIST ACTIVITIES

Introduction

The right under Section 167(2)1 CrPC to be released on bail on default if charge-sheet is not filed
within 90 days from the date of the first remand is not an absolute or indefeasible right. 2 In 1978,
Explanation 1 was added to the proviso (a) making it clear that on the expiration of 60 or 90
days, as the case may be, there would be on the release of the accused, but that he would be
released only on furnishing bail.3 It can be said that mere delay in the filling the charge-sheet
cannot be a ground for releasing the petitioner on bail. 4 Hence, the default bail under the proviso
is subjected to stipulations, precedent judicial guidelines and other legislative enactments and
hence can't be availed on the mere expiry of the 90 days as an absolute right.

An outer limit of 180 days has been carved out in Section 43D(2)(b) of the Unlawful
Activities (Prevention) Act

For the offences with which we are concerned here (Terrorist activities), the maximum period of
filling the charge sheet is of 180 days as the Section 167(2) of CrPC is to be read together with
the Section 43D(2)(b) of the Unlawful Activities (Prevention) Act (Hereinafter referred as
"UAPA").5 This proviso confers power upon the court to extend the period up to 180 days. Thus,
in cases where the court needs to consider whether the period of filing of charge-sheet needs to
be extended6, this power can be exercised.

Though, Section 43D(2)(b) of the UAPA, strictly speaking, is not a provision for "grant of bail"
but deals with the maximum period during which a person accused of an offence may be kept in
custody and detention to enable the investigating agency to complete the investigation and file
the charge-sheet, if necessary, in the court.7

1
Code of Criminal Procedure, 1973 § 167 (2).
2
Pragyna Singh Thakur v. State of Maharastra, (2011) 10 S.C.C. 44.
3
II, Sohoni, Code of Criminal Procedure 1056 (21st ed. LexisNexis, 2014).
4
Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra, (2015) 7 S.C.C. 440.
5
Mohd. Maroof v. State, (2015), Cr. M.C. No. 3644/2014.
6
Mr. Areeb S/o Ejaj Majeed v. National Investigation Agency, Criminal Appeal No. 630 of 2015.
7
Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 S.C.C. 602.
Generalia Specialibus Non-Derogant

It is a well-settled principle that when a special statute subsequently enacted, provides some
additional requirements which are not there in the general law, then, in that case, the special
statute shall prevail.8 Section 167 of CrPC has been modified in respect of offences punishable
by Section 43D(2)(b) of the UAPA and the same being a special act, would override the
provisions of the general law.9 The proviso added by Section 43D(2)(b) enables the Special
Court to extend the period of detention from the maximum period of 90 days stipulated under the
CrPC to 180 days.10 In short, by virtue of the modifications referred to in Section 43D(2)(a) and
(b) of the Act, Section 167(2) of the Code virtually stands amended, for the purpose of the Act. 11
It must be remembered that the concept of default bail has not been wiped out of Section 167
CrPC by virtue of the UAPA but has been modified to cover the offence under the Act.12

In case of the offence under UAPA, the period of investigation would be extended till a period
of 180 days and only after that, would the accused be entitled to default bail if the charge sheet
has not been filed13 and if the accused person is prepared to furnish bail. 14 The court must grant
the extension of the investigation when the investigation is underway and that it requires
inquiries in different parts of this country as well as abroad and could not be, therefore,
completed.15

There is a complete ban on the court to grant bail as per Sub-Section (5) of Section 43D of
the UAPA

The proviso to Section 43D(5) is an additional restriction 16 on the court's power to grant bail, and
the above position of law is further made clear by Sub-Section (6) of Section 43D. 17 In view of
the embargo placed by subsections (5) of Section 43D of the Act, there is a complete ban on
granting not only regular bail pending trial but even a temporary bail.18
8
Saraswati Rai v. Union of India, (2011) S.C.C. OnLine Cal. 1227.
9
Syed Shahid Yousuf v. National Investigation Agency, 2018 S.C.C. OnLine Del. 9329.
10
Anvar P.V v. P.K Basheer, (2014) 10 S.C.C. 473.
11
Abdul Halim v. State, (2010) S.C.C. OnLine Ker. 4867.
12
Mr. Enrita N. Marak v. The State of Meghalaya, (2013) S.C.C. OnLine Gau. 3.
13
Mufti Abdus Sami Qasmi v. National Investigation Agency, (2017) S.C.C. OnLine Del. 11188.
14
Mohd. Maroof @ Ibrahim v. State, (2015) S.C.C. OnLine Del. 9509.
15
Abu Anas v. National Investigation Agency, (2016) S.C.C. OnLine Del. 6129.
16
Malsawmkimi v. National Investigation Agency, (2012) S.C.C. OnLine Gau. 897.
17
Fasih Mahmood v. State, (2016) S.C.C. OnLine Del. 1073.
18
Ms. Purnima Upadhyay v. State of Maharashtra, (2015) S.C.C. OnLine Bom. 5989.
The proviso to Sub-Section (5) of Section 43D puts a complete embargo on the powers of the
Special Court to release an accused on bail if the Special Court, on perusal of the case diary,
forms an opinion on the accusation against an accused person, of the commission of offence
under Chapter IV and considers it to be prima facie true. 19 If it is so, then his right to get the bail
becomes restricted.20

Section 43D(5) of the UAPA is a special provision, which has been introduced as a part of the
State's response to the menace of terrorism. Here we have to bear in mind that by specifically
mentioning the words "on a perusal of the case diary or the report made under Section 173 of the
Code" in the proviso to section 43D(5) of the UAPA, the Legislature has prohibited
consideration of any material beyond the case diary21.

Further, It has to be borne in mind that sub-section (5) of section 43D of the UAPA starts with
the expression "notwithstanding anything contained in the Code", which is a non-obstante clause.
A non-obstante clause is a legislative device, which is employed to give overriding effect to
certain provisions over some contrary provisions that may be found either in the same enactment
or in some other enactment.

Concluding Remarks

While granting the bail, the court has to keep in mind the nature of the accusations, the nature of
the evidence in support thereof, the severity of the punishment which conviction will entail, the
character of the accused, circumstance peculiar to the accused, reasonable possibility of securing
the presence of the accused at the trial, reasonable apprehension of the witness being tampered
with, the larger interests of the public/state and other similar considerations. 22 Considering the
grave and serious nature of the terrorist activities, the continued detention of the accused is
necessary.

One thing is clear that the true legislative intent behind Section 43D of the UAPA is to empower
the court to authorize detention by extending time, so as to enable the investigating agencies to

19
Golan Daulagupu v. National Investigating Agency, (2012) 5 G.L.T. 739. 
20
Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra, (2017) S.C.C. OnLine Bom. 494.
21
Rojen Bor v National Investigation Agency, (2016) S.C.C. OnLine Gau. 823.
22
Y.S. Jagan Mohan Reddy v. C.B.I, A.I.R. (2013) S.C. 1933.
more effectively investigate those cases relating to terrorism and other acts which have national
ramification, involving complex inter-state and international linkages.

This provision is in tune with the legislative intent to have the investigations completed
expeditiously and not to allow an accused to be kept in continued detention during an
unnecessarily prolonged investigation at the whims of the police. Though the Legislature expects
that the investigation must be completed with utmost promptitude but where it becomes
necessary to seek some more time for completion of the investigation, the investigating agency
must be allotted the necessary time to complete the investigation in a full sense.

REVIEW REPORT

File name- Right To ‘Default Bail' Vis-À-Vis Terrorist Activities

1. The title of the paper: Right To ‘Default Bail' Vis-À-Vis Terrorist Activities
2. Percentage of plagiarism: 14
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 There is a scope for improvisation in the basic drafting. Certain
sentences need to be redrafted because they are too wordy and can be
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