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The right under Section 167(2)CrPC to be released on bail on default if charge-sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. 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 release of the accused, but that he would be released only on furnishing bail.It can be said that mere delay in the filling the charge-sheet cannot be a ground for releasing the petitioner on bail.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”).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 extended, this power can be exercised by Court.
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.
Generalia Specialibus Non Derogant
It is a well settled principle that when a special statute subsequently enacted, provides some additional requirements which is not there in the general law, then in that case the special statute shall prevail. 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. The maxim generalia specialibus non derogant meaning special law will always prevail over the general law and it clearly lays down the rule under the provisions of this Act. 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. 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.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.
In case of the offence under UAPA,  the period of investigation would be extended till a period of 180 days and only thereafter, would the accused be entitled to default bail if the charge sheet has not been file and if the accused person is prepared to furnish bail. The court must grant the extension of the investigation up to 180 days when investigation is underway and that it requires inquiries in different parts of this country as well as abroad and could not be, therefore, completed.
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 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. 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.
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 the accusation, against an accused person, of the commission of offence under Chapter IV is prima facie true.The Court always ensures as to whether the accusation against the accused person is prima facie true. If it is so, then his right to get the bail becomes restricted.
The 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 Setion173 of the Code” in the proviso to section 43D(5) of the UAPA, the Legislature has prohibited consideration of any material beyond the case diary.
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 trail, reasonable apprehension of the witness being tampered with, the larger interests of the public/state and other similar considerations. Considering the grave and serious nature of the terrorist activities, the continued detention of the accused is necessary.
One thing is absolutely 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 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 unnecessary 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 full sense.



Digvijay Singh is a fifth-year BA.LLB (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow. His subjects of interest are Constitutional Law, Criminal Law, International Law and Intellectual Property Rights.




In-content Picture Credits: vajiramias.com

1 Comment

  1. […] may be understood by acknowledging that §43(D)5 is a non-obstante clause, which means that any benefit regarding bail accrued to the accused under the Criminal Procedure […]

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