Sudha Bharadwaj bail: how HC spelt out limitations of sessions court

What is the news?

Bombay High Court granted bail to lawyer-activist Sudha Bharadwaj, an accused in the Elgar Parishad case.

What was the High Court’s observation regarding the bail?

HC affirmed that sessions court had no power to extend arrest under UAPA. The court stated that under the National Investigation Agency Act, a special court is to be designated and the sessions court had no jurisdiction to extend the detention beyond 90 days. So a default bail should have been automatically granted to the accused.

What is default bail?

A Code of criminal procedure sets deadlines for investigative agencies to complete investigations during which the accused can be kept in custody. If the agency fails to meet these deadlines, then the accused becomes entitled to default or regular bail.

Under section 167 CrPC, the maximum period of detention is 90 days. However, under UAPA, courts can extend the custody up to 180 days.

In the Elgar Parishad case, the legal question was whether the sessions court had the legal jurisdiction to extend the custody, if not the matter should have been handled by a special judge.

Who is the special judge under the law?

Before 2008, under UAPA, the jurisdiction to try offences punishable with maximum imprisonment of more than 7 years is vested with the sessions court. For offences punishable with maximum imprisonment of not more than seven years is vested with the magistrate.

In 2008, The NIA act was passed and UAPA was amended. Now, all scheduled offences are to be tried exclusively by a special court under the NIA act. If there is no designated special court, then the sessions court, which is the highest court to try criminal offences, will have this jurisdiction. Thus, the extension of arrest orders for the accused becomes questionable.

Why was the extension challenged?

In Bikramjit Singh versus the State of Punjab case, 2020, the Supreme Court held that only a special court had jurisdiction to extend detention up to 180 days under UAPA.

Since the Maharashtra government had designated a special court in Pune at that time, the sessions court had no jurisdiction to extend the custody.

Source: This post is based on the article “Sudha Bharadwaj bail: how HC spelt out limitations of sessions court” published in Indian Express on 2nd December 2021.

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