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Section 43D(2) of Unlawful Activities (Prevention) Act read into Section 167 of the Cr.P.C in its application to cases for offences relating to ULA(P)Act, lays down that if it is not possible to complete the investigation within 90 days, the custody of an accused alleged to have committed offences under ULA(P) Act can be extended up to 180 days as upheld by the Hon’ble High Court of J&K through a learned bench of Justice Sanjay Dhar in the case of Mujahid Ashraf Khan & Ors Vs Ut Of J&K & Another [CrlA(D) No.13/2021 CrlM No.1096/2021].

In the case, Appellants filed the instant appeal under Section 21 of the National Investigation Act, 2008, challenging judgment and order passed by Special Court for Trial of offences under Unlawful Activities (Prevention) Act, Baramulla whereby application of appellants for grant of bail, for offences under Section 13, 18 and 38 ULA(P), was dismissed.

Appellants challenged the impugned order on the grounds that there was no material on record before the learned Special Court to hold that an offence under Section 18 of the ULA(P) Act is made out against the appellants. It was further contended that at the time when the learned Special Court granted extension in period of investigation and detention of appellants/accused beyond 90 days, the appellants/accused had already spent more than 90 days in custody and, as such, they were entitled to grant of default bail. It was also urged that the application for extension of period of investigation has been made by the investigating officer and not by the Public Prosecutor and that there were no reasons, much-less cogent reasons, for granting the extension. Thus, according to the appellants, the grant of extension in period of investigation beyond 90 days in the instant case is without jurisdiction and, as such, the same entitles the appellants to grant of default bail.

The Hon’ble High Court considered the question as to whether appellants were entitled to grant of default bail on the ground that charge sheet was not filed by the investigation agency within the prescribed period of 90 days and stated that “In order to test the merits of the argument raised by learned Senior counsel appearing for the appellants, it would be apt to refer to the provisions contained in Section 43D(2) of ULAP Act …………The afore-quoted proviso to sub-section (2), which is to be read into Section 167 of the Cr.P.C in its application to cases for offences relating to ULA(P)Act, lays down that if it is not possible to complete the investigation within 90 days, the custody of an accused alleged to have committed offences under ULA(P) Act can be extended up to 180 days subject to the following conditions: (1) there has to be a report of the Public Prosecutor indicating the progress of investigation; (2) Specific reasons for detention of accused beyond the period of 90 days have to be spelled out”

Click here to read the Judgment

Judgment Reviewed by – Aryan Bajaj