Hurba Petro And Others vs Union Of India And Others
- Court
- Delhi High Court
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 30 July, 2026.
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Pronounced on: 4 August, 2026.
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Uploaded on: 4 August, 2026.
+ CRL.A. 630/2026
HURBA PETRO AND OTHERS .....Appellants
Through: Ms. Nithya Ramakrishnan, Sr. Adv,
Mr. Nitin Saluja, Ms. Shivani Luthra
Lohiya, Mr. Anubhav Singh, Ms.
Garima Singh, Ms. Ishita Soni, Ms.
Pranya Madan, Mr Ishit Patel, Advs.
(M. 9958584817)
versus
UNION OF INDIA AND OTHERS .....Respondents
Through: Mr. Amit Tiwari, CGSC, Ms. Ayushi
Srivastava, Mr. Arpan Narwal, Mr.
Kushagra Malik, Mr. Ujjwal Tyagi,
Advs. for UOI. (M. 9990980316)
Ms. Urvashi Basak, Government
Pleader for R-1 (M. 9811636923)
Mr. Rahul Tyagi, SPP/NIA with Mr.
Jatin Khatri, Mr. Amit Rohilla, Mr.
Shubham and Mr. Aniket Kr. Singh,
Advocates with DSP Ritesh Sharma,
CIO, NIA for R2. (M) 8571973515
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE VIKAS MAHAJAN
JUDGEMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
Factual Background
2. The present appeal under Section 21 of the National Investigation
Agency Act, 2008 (hereinafter “ NIA Act ”) has been filed challenging the
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impugned order dated 4th June, 2026 passed by the ld. Additional Sessions
Judge-03/Special Judge (NIA Court), Patiala House Courts, New Delhi in RC
No. 7/2026/NIA/DLI titled ‘NIA v. Mathew Aaron Van Dyke and Ors.’.
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3. The said case arises out of FIR No. RC No. 7/2026/NIA/DLI dated 13
March, 2026 registered at P.S. NIA, New Delhi for offences punishable under
Section 18 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter
“ UAPA ”).
4. Vide the impugned order, the request for extension of judicial custody
of the Appellant has been allowed by the ld. Special Judge beyond the period
of 90 days to 180 days in terms of Section 43D(2)(b) of the UAPA.
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5. On 10 July, 2026, when this matter was first considered. Mr. Rahul
Tyagi, ld. Counsel for the NIA had raised a preliminary objection to the
maintainability of the present appeal on the ground that the impugned order
is an interlocutory order against which an appeal under Section 21 of the NIA
Act would not lie.
6. In response to the same, Ms. Nithya Ramakrishnan, ld. Senior Counsel
appearing for the Appellant, had drawn our attention to the decision of a
Coordinate Bench of this Court in State (NCT of Delhi) v. Anamul Ansari,
2024:DHC:9588-DB, wherein the State’s appeal against an order refusing to
grant extension of time for investigation under Section 43D(2)(b) was held to
be maintainable.
7. Considering this position, notice was issued and the pleadings were
directed to be completed.
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8. This matter was next heard on 30 July, 2026, on which date, arguments
were advanced by both parties in respect of maintainability of the present
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appeal. Thereafter, on the same date, judgement was reserved in this matter
on the issue of maintainability.
Submissions on Behalf of the Parties
9. On behalf of the NIA, it is submitted by Mr. Rahul Tyagi, ld. SPP that
the issue of whether an order granting extension of time for investigation
under Section 43D(2)(b) would be an appealable order or not is no longer res
integra . It is his submission that such an order would be an interlocutory order
and not a final order. Hence, the appeal under Section 21 of NIA Act would
not be maintainable. In support of this, the ld. SPP has placed reliance on the
following decisions:
(i) National Investigation Agency v. Akhil Gogoi, 2022 SCC
OnLine Gau 1446 ;
(ii) Jai Kishan Sharma v. Union of India, 2019 SCC OnLine Gau
5814 ;
(iii) State of NCT of Delhi v. Anamul Ansari & Ors.,
2024:DHC:9588-DB ;
10. It is further submitted that though an appeal against the impugned order
is not maintainable, the Appellant is free to approach the ld. Sigle Judge of
this Court for exercising inherent jurisdiction under Section 482 of Code of
Criminal Procedure, 1973 (hereinafter “ CrPC ”).
11. Per contra, Ms. Nithya Ramakrishnan, ld. Senior Counsel has argued
that an order granting extension of time for investigation cannot be an
interlocutory order, especially, considering the serious consequences as to the
liberty of an accused. The direct result of the impugned order is that the
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Appellant’s right to default bail has been defeated. Accordingly, the impugned
order has finality attached to it.
12. It is her submission that while considering the nature of an order, the
Court has to test the same on three planks:
(i) Whether the order concludes the proceedings absolutely?
(ii) Whether the order terminates the proceedings for any of the
parties?
(iii) Whether it is an intermediary order as explained by the Supreme
Court in Madhu Limaye v. The State of Maharashtra, (1977) 4
SCC 551 ?
13. While considering these three factors, the Court would have to
appreciate that the entitlement of the Appellant for default bail itself is
rendered infructuous for the Appellant, in view of the extension. It is
submitted that for the extended 90 days period the Appellant continues to
remain in detention depriving him from being released on default bail which
also affects his rights under Article 21 of the Constitution of India.
14. Ld. Senior Counsel has vehemently urged that this Court in State NCT
of Delhi v. Anamul Ansari & Ors. 2024:DHC:9588-DB has already taken a
view that an order refusing extension is appealable at the behest of the State,
then a fortiori, the impugned order granting extension would also be
appealable.
15. The further submission is that usually, as held in M. Ravindran v.
Directorate of Revenue Intelligence, (2021) 2 SCC 485, an application for
extension of time for investigation and an application seeking default bail
ought to be considered by the Trial Court together, so that the Trial Court is
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able to appreciate the issue from the point of view of both NIA as also the
accused. However, reference is made to paragraph 15 of the impugned order,
to argue that, in the present case, the ld. Special Judge has erred in considering
the objections to the extension of time for investigation as arguments for
seeking default bail, in as much as, the right to default bail would accrue only
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on completion of 90 days and not on the 83 day when the impugned order
was passed.
16. On these grounds, it is submitted that the present appeal would be
maintainable before this Court. However, it is also submitted by ld. Senior
Counsel that in case this Court finds the present appeal not maintainable, then
in terms of the Coordinate Bench decision in Syed Shahid Yousuf v. National
Investigation Agency, 2018 SCC OnLine Del 9329 , this Court may consider
the present appeal as a petition under Section 482 of CrPC and decide the
same on merits.
Analysis and Findings
17. Heard.
18. The issue for this Court’s consideration is whether an order granting
extension of time for investigation under Section 43D(2)(b) of the UAPA has
to be treated in the same manner as an order refusing to grant extension of
time i.e., whether an order granting extension of time under Section 43D(2)(b)
of the UAPA is an appealable order under Section 21 of the NIA Act.
19. Under Section 21 of the NIA Act, any judgment, sentence or order not
being an interlocutory order of a Special Court is appealable before the High
Court. Further, as per Section 21(4) of the NIA Act, an appeal shall lie to the
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High Court against an order granting or refusing bail as well. For ease of
reference, the said provision is extracted hereunder:
“ 21. Appeals.—( 1) Notwithstanding anything
contained in the Code, an appeal shall lie from any
judgment, sentence or order, not being an
interlocutory order, of a Special Court to the High
Court both on facts and on law .
(2) Every appeal under sub-section (1) shall be heard by
a bench of two Judges of the High Court and shall, as
far as possible, be disposed of within a period of three
months from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision shall lie
to any court from any judgment, sentence or order
including an interlocutory order of a Special Court.
(4) Notwithstanding anything contained in sub-section
(3) of section 378 of the Code, an appeal shall lie to the
High Court against an order of the Special Court
granting or refusing bail .
(5) Every appeal under this section shall be preferred
within a period of thirty days from the date of the
judgment, sentence or order appealed from:
Provided that the High Court may entertain an
appeal after the expiry of the said period of thirty days
if it is satisfied that the appellant had sufficient cause for
not preferring the appeal within the period of thirty
days:
Provided further that no appeal shall be
entertained after the expiry of period of ninety days”
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20. It is relevant to also consider Section 43D(2) of UAPA which modifies
the time granted for investigation under Section 167 of CrPC to the effect that
the period for investigation available under the UAPA is longer than other
offences governed by the CrPC. In terms of sub-clause (b) of Section 43D(2)
the maximum period of investigation under CrPC of 90 days can be extended
till 180 days provided a report is given by the Public Prosecutor to satisfy the
Trial Court as to the progress of the investigation and the reasons for the
extended detention of the accused. The relevant portion of Section 43D reads
as under:
“43D. Modified application of certain provisions of the
Code.
(1) Notwithstanding anything contained in the Code or
any other law, every offence punishable under this Act
shall be deemed to be a cognizable offence within the
meaning of clause (c) of section 2 of the Code, and
“cognizable case” as defined in that clause shall be
construed accordingly.
(2) Section 167 of the Code shall apply in relation to a
case involving an offence punishable under this Act
subject to the modification that in sub-section (2),—
(a) the references to “fifteen days”, “ninety days”
and “sixty days”, wherever they occur, shall be
construed as references to “thirty days”, “ninety
days” and “ninety days” respectively; and
(b) after the proviso, the following provisos shall
be inserted, namely:—
“ Provided further that if it is not possible
to complete the investigation within the
said period of ninety days, the Court may
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if it is satisfied with the report of the
Public Prosecutor indicating the progress
of the investigation and the specific
reasons for the detention of the accused
beyond the said period of ninety days,
extend the said period up to one hundred
and eighty days :
Provided also that if the police officer
making the investigation under this Act,
requests, for the purposes of investigation,
for police custody from judicial custody of
any person in judicial custody, he shall file
an affidavit stating the reasons for doing so
and shall also explain the delay, if any, for
requesting such police custody.”
21. In the present case, the FIR bearing number RC No.07/2026/NIA/DLI
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was registered on 13 March 2026. The allegation against the Appellants, who
are Ukrainian Nationals, is that they were conspiring with local Ethnic Armed
Groups in India to hamper national security and carry out attacks in Myanmar.
The six Appellants, were arrested on the same day at the respective airports in
Lucknow and Delhi. The Appellants were produced before the ld. Magistrate
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on 14 March, 2026 and were initially remanded to police custody and,
thereafter, to judicial custody.
22. An application under Section 43D(2)(b) read with Section 187 of
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Bharatiya Nagarik Suraksha Sanhita, 2023 was moved on 3 June 2026 by
the NIA seeking extension of the investigation period till 180 days. In the said
application various grounds had been raised including on the ground that the
investigation is still ongoing and there are various facets to the conspiracy to
be investigated. Further, the digital devices which were seized from the
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Appellants also have to be analyzed and further time would be required for
the same.
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23. This application was considered by the ld. Trial Court on 3 June, 2026
on which date notice was issued to the ld. Counsels for the Appellants.
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Thereafter, the matter was listed on 4 June, 2026 for hearing the parties. The
ld. Trial court heard the parties and perused the Public Prosecutor's report and
upon satisfying itself gave the following observations:
“15. It is not law of the land, that application like the
one, as filed by Public Prosecutor herein, should be
deferred till 90th day for any reason whatsoever.
Purpose of filing such like applications is legal
justification of custody of accused persons and the fact
that accused persons know as to for what reason their
further incarceration is sought by prosecuting agency
and why it is granted. Purpose is not to wait till 90th
day, for the purpose of affording right to accused to file
default bail and if said purpose is to be seen, then on one
hand, it will frustrate the mandate of provision itself and
on the other hand, will lead to a situation where for brief
period, this court will have to extend the judicial custody
of accused persons, without any reason, simply for the
purpose of hearing arguments on default bail
application. That interpretation will not be proper. In
this case, by virtue of objections raised by accused
persons, it is clear that they have notice of present
application. It is also clear that as per them, they are
entitled for default bail, after 10.06.2026 in view of the
fact that investigation is not complete. In other words,
by virtue of said objections, they have brought to the
notice of this court, that they will be pressing for their
default bail, as on 10.06.2026. To that extent, said
objections tantamount to their application based on
default bail. In other words, their said application is
heard together with present application of Public
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Prosecutor, as per the mandate of Judge made law, cited
above.
16. Now, coming to the application of Public
Prosecutor, I find that Public Prosecutor has filed his
report/reasons, which are specific for the purpose of
extension of period of custody of accused persons, in
sealed cover. This court is not obliged to share copy of
the same with Ld. Counsels for accused persons. I have
gone through the said report. After referring to brief
facts of this case, details of progress of this case is
mentioned. It also mentions about the reasons for
seeking further judicial custody of accused persons. It
also mentions the reasons based on which, investigation
is not completed till date. Said details are not
mechanical reproduction of previous application filed
by IO for seeking judicial custody of accused persons.
The facts are new. Evidence collected by IO are also
new. I have seen and signed the case diaries, filed by
IO, which only corroborate the version of Public
Prosecutor.
17. Above-mentioned report, contents of application
and case diary clearly indicate that IO/Public
Prosecutor has justifiable reason, to submit that
investigation is not completed till date. Said record also
indicated that further time is required for completing
investigation.”
24. Accordingly, vide the impugned order, further time for investigation
and consequently the detention of the accused persons was allowed beyond
90 days and up to 180 days in the following terms:
“20. In the wake of above-mentioned appreciation and
conclusions, application filed by the IO is allowed. The
investigation period and detention period of aforesaid
accused persons namely Matthew Aaron Van Dyke,
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Hurba Petro, Slyviak Taras, Ivan Sukmanovskyi,
Stefankiv Marian, Honcharuk Maksim and Kaminskyi
Viktor, is extended beyond 90 days and up to 180 days
in accordance with provision of Section 43D(2)(b) of
UA(P)A, read with Section 187 of BNSS.”
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25. The impugned order was passed on 4 June 2026 and by that time the
90 day period from the date of arrest had not lapsed. The said 90 day period
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lapsed on 10 June 2026 and since the extension was already granted, the
stand of the Appellants is that they could not apply for default bail.
26. The Appellants are aggrieved from the impugned order, inter alia, on
the ground that by deciding the application for extension of time for
investigation, in effect, the entitlement of the Appellants for default bail is
defeated.
27. The Appellants have relied with full force on the decision in Anamul
Ansari (supra) to argue that the impugned order is an appealable order. This
Court has already taken a view in Anamul Ansari (supra) that an order
refusing to grant extension of time for investigation would have finality
attached to the same. The Court had analyzed various judgments of the
Supreme Court as also other High Courts and held as under:
“..53. The crux of the above decisions would show
that there are three categories of orders:
i. Final orders.
ii. Interlocutory orders.
iii. Intermediate orders.
54. The third category of orders, as laid down in
Madhu Limaye (supra), are neither interlocutory
orders nor final orders but somewhere in between. In the
course of a civil or a criminal proceeding, there could
be several orders which would not fall in the category of
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interlocutory or final. Such orders could have trappings
of finality and irretrievable consequences that may be
attached to them. Such orders though not deciding the
case finally, are clearly not interlocutory orders as they
may have a final bearing on the manner in which the
case would proceed.
55. For example, an order framing charge could
have finality attached to it as held in V.C. Shukla
(supra). Other examples of the same would be:
(i) Order summoning an accused, as held in
Jagan Nath v. Bhagwan Dass, 1978 Cri
LT 133 (Punj & Har HC);
(ii) Order taking cognizance of offence, as
held in Tilk Raj v. State of U.P., 1979 Cri
LJ 308 (All HC);
(iii) Order attaching subject of dispute, as
held in Umrao v. Sheonarain, 1975 Raj
LW 353;
(iv) Order of discharge, as held in
Gurucharan Singh v. State of Punjab,
1978 Cri LJ 1330 (P&H HC);
56. In the present case, the dismissal of the
application seeking extension of time under Section
43D(2) of UAPA, has two clear consequences:
a) The accused is entitled to default bail;
b) The release of the accused would have a
direct bearing on the investigation and the
manner in which it would proceed.
57. Would such an order merely be an
interlocutory order against which no appeal would lie?
The answer, in view of the position of law as discussed
hereinabove, is clearly in the negative. The finality
attached to such an order would be that the State may
be unable to again obtain custody of these accused,
especially, in a case involving serious offences
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including under the UAPA. The accused would be
allowed to freely move around in society while the
investigation is not concluded and some of the other
accused persons are still at large. Such accused could
also affect or tamper with evidence or witnesses or
even indulge in prejudicial activities which may have
a larger impact on society.
58. In this regard, the recent decision of the
Supreme Court in Shaik Nazneen v. State of
Telangana, (2023) 9 SCC 633, is relevant. The Court
while considering the default bail available to an
accused under Section 167 of CrPC has observed as
under qua imposition of stringent conditions in cases of
default bail:
“15. The other reason assigned is that the
trial court while granting bail did not lay
down any conditions. This is again a wrong
presentation of the case. Conditions were
not imposed simply as it was a default bail,
and in bail of this nature conditions are not
liable to be imposed.”
Thus, if the accused are granted the benefit of default
bail in the present matter, the Trial Court may not be
able to impose any stringent conditions as may be
necessary in such sensitive matters involving national
security.
59. As can be seen from the facts of the present
case, some of the accused have still not been arrested or
apprehended. They are absconding. There are
possibilities of the accused teaming up with such non-
apprehended persons and adversely impacting the
investigation. Further, prior to the filing of the charge-
sheet, the accused would be released on default bail
wherein the usual conditions for grant of bail are not
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to be gone into by the Trial Court. These consequences
are irreversible upon the passing of the impugned
order. Any order which can have such irreversible
consequences in a case of such magnitude and
sensitivity cannot be held to be an interlocutory order.
60. In view of the abovesaid discussion, it is clear
that an order rejecting the application for extension of
period of investigation from initial 90 to 180 days under
Section 43D(2) of UAPA would be an appealable order
and not an interlocutory order.
61. Thus, the appeal in the present case is held to
be maintainable and the preliminary objection raised by
the Respondents is rejected.”
28. As can be seen from the above, the Coordinate Bench had considered
the decision of the Supreme Court in Madhu Limaye (supra) and analyzed
the nature of an order refusing to grant extension of time for investigation. It
was held that such an order would have irreversible consequences for the
Prosecution, and therefore such an order cannot be considered as interlocutory
order but an order which has a finality attached to it.
29. It is noted that the decision in Anamul Ansari (supra) is challenged
before the Supreme Court in SLP (Crl.) No. 4633/2025 and is stated to be
pending for consideration.
30. In the opinion of this Court, a similar exercise as conducted in Anamul
Ansari (supra) of considering the nature of the impugned order, would be
expedient to adjudicate the maintainability of this appeal.
31. In fact, this issue has now been opined upon in various decisions
wherein a clear view has been taken that an order granting an extension would
be an interlocutory order and hence not appealable. A Coordinate Bench of
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this court in Syed Shahid Yousuf (supra) has held that such an order is an
interlocutory order and is only reviewable under Section 482 CrPC. The
relevant observations read:
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“ 19. The order dated 5 February 2018 allows the
application of the NIA to the extent that the period of
investigation is extended beyond 106 days to 180 days
under Section 43D UAPA. While the Respondent may
be justified in contending that the order dated
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5 February 2018 did not determine the rights of any
of the parties and would have no bearing on the
proceedings of the trial Court or the ultimate decision
of the case and is, therefore, an interlocutory order, it
appears to the Court that notwithstanding the bar
contained under Section 21 NIA Act, this Court can
nevertheless judicially review such an order in exercise
of its inherent jurisdiction under Section 482 Cr PC .
20. The position has been further clarified by the
Supreme Court in its recent judgment in Asian
Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau
of Investigation, (2018) 5 Scale 269. That judgment was
made in the context of Section 19 (3) (c) Prevention of
Corruption Act 1988, which provides that
“notwithstanding anything contained in the Code of
Criminal Procedure, 1973…… (c) no court shall stay
the proceedings under this Act on any other ground and
no court shall exercise the powers of revision in relation
to any interlocutory order passed in any inquiry, trial,
appeal or other proceedings.” The Supreme Court has
clarified that in the rarest of rare cases, a writ petition
could be entertained against such an order
notwithstanding the above bar instead of requiring a
separate petition to be filed only for that purpose which
will only result in multiplicity of proceedings .
21. Therefore, in the present case, the proper course is
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for the Court to entertain the challenge to the order
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dated 5 February 2018 of the Special Court by
invoking the jurisdiction of this Court under Section 482
Cr PC. Therefore, although technically the present
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appeal against the order dated 5 February 2018 of the
Special court would not be maintainable, to require the
Appellant at this stage to file a separate application
under Section 482 Cr PC for that purpose , would only
multiply proceedings. Having heard the matter on
merits at length, the Court considers it appropriate to
exercise its jurisdiction under Section 482 Cr PC as far
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as the impugned order dated 5 February 2018 of the
Special Court is concerned, in these proceedings itself.
The preliminary objection is disposed of accordingly.”
32. A similar view was also taken by the Division Bench of the Guwahati
High Court in Jai Kishan Sharma (supra), where the Court observed as
under:
“25. A Division Bench of our own hon'ble High Court,
in Londhoni Devi and Ors. v. State, 2013 (3) GLT 249,
while discussing as to what is an interlocutory order,
with reference to the provisions of section 21(3) of NIA
Act held, after referring several authorities, held that an
order framing charge under the scheme of NIA Act,
2008, is an interlocutory order and no appeal lies
therefrom. Drawing analogy with the said decision of
our own High Court, we can hold that the order
impugned in this appeal does not terminate the
proceeding or finally decide the rights of the parties
and as such is an interlocutory order only. That being
so, in view of the provisions of section 21(3) of NIA
Act, the appeal is not maintainable .
26. The learned counsel for the accused-appellants have
once again referred Syed Shahid (supra) to counter the
argument that the appeal is not maintainable and has
submitted that this court can convert the appeal to an
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application under section 482 of the Cr.PC and decide
the matter. On perusal of the said decision, it appears
that the said decision also held that the order extending
custody beyond 90 days being an interlocutory order is
not appealable. However, to avoid multiplicity of
litigation, the hon'ble Delhi High Court has converted
the proceeding to one under section 482 of Cr.PC and
decided the matter on merit in respect of extension of
custody of the accused therein.
33. This view of the Division Bench of the Guwahati High Court was also
upheld by the Full Bench of the Guwahati High Court in Akhil Gogoi (supra),
where the Court observed as under:
“ 76. From the aforesaid conclusions, as regards the
proceedings on the subject-matter of extension of
detention in custody of the accused-persons for the
purpose of the investigation, it can be concluded that by
the orders of refusal of extension of detention in custody
dated 16-3-2020 and 4-4-2020 the proceedings itself
came to an end. Further by the orders of refusal of
extension of detention in custody dated 16-3-2020 and
4-4-2020 the fundamental and legal rights of accused
A1 and accused A2, A3 and A4 to remain not in custody
any further in connection with the investigation in NIA
Case No. RC-13/2019/NIA/GUW had also been finally
determined. As such, there is a final determination of the
rights of one of the parties to the proceedings i.e. the
accused-persons. Also the requirement of the
investigation being the appellant-NIA to have the
detention of the accused-persons extended beyond 90
days up to 180 days had also been finally determined by
the two orders dated 16-3-2020 and 4-4-2020.
77. In view of such conclusion, the orders dated 16-3-
2020 in Misc. Case (NIA) No. 1/2020 and dated 4-4-
2020 in Misc. Case (NIA) No. 4/2020 cannot be said to
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be ‘interlocutory order’, but a ‘final order’, inasmuch
as, the proceedings in which such orders were passed
came to an end and the rights of one of the parties had
been finally determined and also the requirement of the
other party had also been finally determined.
78. The reference on the question as to whether the
orders dated 16-3-2020 in Misc. Case (NIA) No. 1/2020
and dated 4-4-2020 in Misc. Case (NIA) No. 4/2020 are
‘interlocutory order’ or ‘final order’ is answered
accordingly.
79. We further provide that the judgment and order
dated 20-12-2019 of the Division Bench rendered
in Jai Krishna Sarma v. Union of India, (2020) 1 GLT
122 providing that the order allowing for extension of
detention in custody of the accused-persons is an
‘interlocutory order’ is accepted to be the correct
proposition of law. In a situation, where extension of
detention in custody of the accused-persons is allowed,
firstly, the proceeding on the subject-matter whether
such detention is to be allowed or not does not come to
an end and secondly, the right of one of the parties i.e.
the accused-persons, to remain not in custody in
connection with the investigation, otherwise, than by
following the due procedure of law, had also not been
finally determined inasmuch as, after the end of the
extended period of detention there would be a further
consideration as to whether the detention required to
be further extended or not. ”
34. In this backdrop, the question that arises is - What is the nature of an
order passed granting extension of time for investigation under Section
43D(2)(b) of UAPA? The grant of extension has a clear consequence for the
accused i.e., that at the expiry of 90 days the Appellant would not be entitled
to default bail. However, this right to default bail is a right which is governed
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by the statute itself i.e., Section 43D(2) of UAPA. It is not an absolute right
but a consequence which may be deferred or postponed by the Trial Court if
it is satisfied as to the progress of investigation and specific reasons for
continued detention of the accused. If the extension is granted, the right to
default bail is not rejected but merely the availment of default bail is
st st
postponed to the 181 day, instead of the 91 day. The nature of such an order
is, therefore, merely interlocutory and does not have finality attached to it.
35. Considering the seriousness of allegations in respect of offences under
UAPA and the complexity of cases therein, the need for extension of time for
investigation in bona fide cases is understandable. Such a need of the
investigating agency and the corresponding curtailment of default bail of the
accused, is conditioned by the stipulations in the statute – i.e., satisfaction of
the Trial Court as to the progress of investigation and the requirement of
specific reasons for detention of accused. Thus, the intention of the legislature
is not to make such an order an appealable order under Section 21 of the NIA
Act, as at the stage when the extension is granted, the same is based on the
report of the Public Prosecutor which is only seen by the Trial Court and the
merits of the application is to be merely assessed for the purpose of granting
extension.
36. As held in Madhu Limaye (supra) , there are three categories of orders
namely final orders, interlocutory orders, and intermediate orders. An order
granting further extension would not even be an intermediate order as the
order granting extension does not even have trappings of irretrievable
consequences. They are not orders which are in between but are orders
wherein the Trial Court has merely exercised discretion to grant extension
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subject to satisfaction of certain conditions. The right to default bail is not
rejected but merely postponed, when the extension is granted.
37. This Court agrees with the above decisions that an order granting
extension of time for investigation under Section 43D(2) of the UAPA being
an interlocutory order would not be an appealable order under Section 21 of
the NIAAct.
38. Further, this Court reiterates the position of law as held in Syed Shahid
Yousuf (supra) that the order granting extension of time for investigation
would only be amenable to judicial review under Section 482 CrPC/Section
528 of BNSS.
39. In this background, as per the request made by the ld. Sr. Counsel for
the Appellants, the present appeal is disposed of with the direction that the
same be renumbered as Writ Petition under Section 482 of the CrPC/ Section
528 of BNSS and be listed before the concerned Roster Bench.
40. The above direction is being issued by this Court in view of the concern
expressed by Appellants’ counsel that there would be considerable delay in
procuring further affidavits, vakalatnamas , etc. from the Appellants as they
are still in custody.
PRATHIBA M. SINGH
JUDGE
VIKAS MAHAJAN
JUDGE
AUGUST 4, 2026
dj/msh
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