Extending UAPA Investigation Period Is Not Appealable

Source: Delhi High Court

Why in News? 

A Division Bench of the Delhi High Court, comprising Justice Prathiba M. Singh and Justice Vikas Mahajan, in Hurba Petro and Others v. Union of India and Others (2026), held that an order extending the period of investigation from 90 days to 180 days under Section 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) is an interlocutory order and is not appealable under Section 21 of the National Investigation Agency Act, 2008 (NIA Act). 

• The Court held that such an order merely postpones the accused's right to seek default bail and does not finally determine any substantive rights, and accordingly directed that the appeal be treated as a petition under Section 482 of the Code of Criminal Procedure (CrPC) or Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). 

What was the Background of Hurba Petro and Others v. Union of India and Others (2026) Case? 

• An FIR was registered by the NIA on 13th March against six appellants, all Ukrainian nationals, who were arrested from airports in Delhi and Lucknow. 
• According to the prosecution, the appellants were allegedly conspiring with local ethnic armed groups in India to compromise national security and carry out attacks in Myanmar. 
• The appellants were remanded to police custody and thereafter to judicial custody. 
• The NIA moved an application before the Special NIA Court seeking extension of the investigation period from 90 days to 180 days under Section 43D(2)(b) of the UAPA, on the ground that the probe was still underway and several aspects of the alleged conspiracy remained to be investigated. 
• The Special NIA Court allowed the extension application, resulting in continuation of the appellants' judicial custody beyond the initial 90-day period. 
• The appellants contended that the impugned order defeated their statutory right to seek default bail after expiry of 90 days, and was therefore appealable. 
• The NIA raised a preliminary objection that the extension order was merely interlocutory and no appeal lay against it under Section 21 of the NIA Act. 

What were the Court's Observations? 

• On the Nature of an Extension Order: The Court held that an order granting further extension would not even be an intermediate order, as it does not carry the trappings of irretrievable consequences. Such orders merely reflect the Trial Court's exercise of discretion to grant extension, subject to satisfaction of certain conditions, and do not reject the right to default bail but only postpone its availment. 
• On the Right to Default Bail: The Court observed that grant of extension has a clear consequence for the accused — namely, that at the expiry of 90 days the accused would not be entitled to default bail. However, it clarified that this right to default bail is a statutory right under Section 43D(2) of the UAPA, and not an absolute right; it is a consequence that may be deferred by the Trial Court upon being satisfied as to the progress of investigation and the specific reasons justifying continued detention. 
• On Interlocutory Character and Finality: The Court held that when extension is granted, the availment of default bail stands postponed from the 91st day to the 181st day, and the right itself is not extinguished. It held that such an order is therefore merely interlocutory and does not attach finality to it, since the Trial Court's assessment at that stage is based only on the Public Prosecutor's report and is confined to the limited purpose of granting extension. 
• On Legislative Intent: The Court held that the intention of the legislature, considering the seriousness of allegations involved in offences under the UAPA and the complexity of such investigations, was not to make an extension order appealable under Section 21 of the NIA Act. 
• Distinguishing State v. Anamul Ansari: The Court distinguished its earlier decision in State v. Anamul Ansari, which had held that an order refusing extension of time for investigation is appealable, since such refusal results in the accused becoming entitled to default bail. The Court noted that the correctness of Anamul Ansari is presently under challenge before the Supreme Court and is pending consideration. 
• On the Available Remedy: Reiterating the position taken in Syed Shahid Yousuf, the Court held that an order granting extension of time for investigation would only be amenable to judicial review under Section 482 of the CrPC or Section 528 of the BNSS, and accordingly directed the appeal to be renumbered as a petition under the appropriate provision and placed before the roster bench.

What is the Unlawful Activities (Prevention) Act, 1967? 

About:  

• The Unlawful Activities (Prevention) Act, 1967 was enacted to provide for more effective prevention of certain unlawful activities of individuals and associations, dealing with terrorist activities, and related matters.  
• Originally, "unlawful activities" referred to actions supporting secession or questioning India's sovereignty and territorial integrity.  
• The Act empowers the National Investigation Agency (NIA) to investigate and prosecute cases nationwide. 

Key Amendments: 

The UAPA underwent multiple amendments expanding its scope: 

• 2004 Amendment: Added "terrorist act" to the list of offences beyond unlawful activities related to secession. 
• 2008 Amendment: Expanded provisions related to terrorist financing. 
• 2012 Amendment: Addressed cyber-terrorism and property seizure mechanisms. 
• 2019 Amendment: Empowered the government to designate individuals as terrorists (previously only organizations could be designated). 

Major Provisions: 

• Government Powers: The central government has complete authority to declare any activity unlawful by publishing a notice in the Official Gazette. 
• Investigation Timeline: The investigating agency can file a chargesheet within a maximum of 180 days after arrests, with extensions possible after intimating the court. 
• Extraterritorial Application: Both Indian and foreign nationals can be charged, applicable even if the crime is committed outside India. 
• Penalties: The Act provides for death penalty and life imprisonment as the highest punishments. 
• Bail Restrictions: Section 43D(5) creates stringent bail conditions, requiring courts to believe that accusations are prima facie not true before granting bail—reversing the usual presumption in favor of bail. 

Related Judgments on UAPA and Bail: 

• Arup Bhuyan v. State of Assam (2011): The Supreme Court ruled that mere membership of a banned organisation will not incriminate a person unless they resort to violence, incite violence, or create disorder. However, in 2023, the Court reversed this position, ruling that membership alone can be considered an offense even without overt violence. 
• People's Union for Civil Liberties v. Union of India (2004): The Court held that if human rights are violated in combating terrorism, it will be self-defeating. The judgment emphasized that a former police officer is not suitable for appointment to the National Human Rights Commission. 
• Mazdoor Kisan Shakti Sangathan v. Union of India (2018): The Court affirmed that protests against governmental and parliamentary actions are legitimate, provided they remain peaceful and non-violent. 
• Hussain and Anr. v. Union of India (2017): The Court emphasized expediting bail applications, reiterating that bail should be the standard and imprisonment the exception. 
• NIA v. Zahoor Ahmad Shah Watali (2019): The Supreme Court held that courts should not delve deeply into evidence but rather trust the state's case as presented when deciding UAPA bail applications—a precedent heavily relied upon in denying bail to Khalid and others.