The Delhi High Court clarified that, following the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the reference to Section 167 of the Code of Criminal Procedure in Section 43D(2) of the Unlawful Activities (Prevention) Act must be read as a reference to Section 187 of the BNSS. Consequently, the statutory provision allowing detention up to 180 days remains applicable and default bail after 90 days is unavailable.
Background & Facts
The Dispute
The appellant, Jasir Bilal Wani @ Danish, was arrested in connection with an explosion at Gate No.4, Lal Qila Metro Station, Delhi. The respondent, the National Investigation Agency (NIA), sought extensions of his custody and denied his application for default bail.
Key Facts
- 10 November 2025: Explosion at Lal Qila Metro Station using a vehicle-borne IED by Accused No.1 (deceased).
- 11 November 2025: FIR No. 1049/2025 registered at PS Kotwali; later re-registered as RC-21/2025/NIA/DLI at NIA.
- 17 November 2025: Appellant arrested at NIA Camp Office, Srinagar.
- Police custody granted for 10 days, 7 days, and 7 days respectively (total 24 days).
- 10 December 2025, 24 December 2025, 8 January 2026: Judicial custody orders for 15 days, 15 days, and 14 days respectively.
- 13 January 2026: NIA’s application under Section 43D(2) of UAPA (read with Section 187 BNSS) allowed police custody till 16 January 2026.
- 16 January 2026: Appellant sent back to judicial custody for 28 days.
- 10 February 2026: NIA filed an application seeking extension of investigation and custody beyond 90 days up to 180 days under Section 43D(2)(b) UAPA.
- 13 February 2026: Trial Court extended remand by 45 days, up to 135 days from arrest.
- 15 February 2026: Appellant filed application for default bail under Section 187(3) BNSS.
- 27 March 2026: Second extension granted for an additional 45 days, making total remand 180 days.
- 30 March 2026: Trial Court dismissed the default bail application.
- 30 April 2026: Notice of appeal served on the appellant.
- 14 May 2026: NIA filed charge-sheet.
- 18 August 2026: Judgment pronounced.
Procedural History
- 13 February 2026: Order extending remand to 135 days (Trial Court).
- 27 March 2026: Order extending remand to 180 days (Trial Court).
- 30 March 2026: Order dismissing default bail application (Trial Court).
- 30 April 2026: Appeal filed under Section 21 of the NIA Act, 2008.
- 14 May 2026: Charge-sheet filed.
- 18 August 2026: Division Bench of the Delhi High Court delivered the judgment.
Parties' Positions
- Appellant: Argues that after the BNSS came into force, Section 187 of the BNSS supersedes Section 167 of the Cr.P.C. in Section 43D(2) of UAPA, making default bail available after 90 days.
- Respondent (NIA): Maintains that Section 43D(2) expressly refers to Section 167 of the Cr.P.C.; the first proviso therefore extends detention to 180 days, and default bail is only permissible after that period.
Relief Sought
The appellant sought (i) setting aside of the two extension orders dated 13 February 2026 and 27 March 2026, and (ii) grant of default bail under Section 187(3) BNSS.
The Legal Issue
- Does the first proviso to Section 43D(2) of the UAPA, which permits extension of detention up to 180 days, apply after the BNSS has repealed Section 167 of the Cr.P.C.?
- Consequently, is an accused in a UAPA case entitled to default bail after 90 days or only after the extended 180-day period?
Arguments Presented
For the Appellant
The appellant contended that:
- The BNSS repealed the Cr.P.C.; therefore, any reference to Section 167 in other statutes must, under Section 8(1) of the General Clauses Act, 1897, be read as a reference to the re-enacted provision, i.e., Section 187 of the BNSS.
- Section 187(3) BNSS provides for default bail after 90 days, and the UAPA provision should not override this newer scheme.
- The NIA’s reliance on a “legislation by incorporation” approach is misplaced because Section 43D(2) merely cites Section 167 without bodily incorporation.
For the Respondent
The NIA argued that:
- Section 43D(2) expressly modifies the time-frames of Section 167 but does not replace the provision; thus the reference remains to the repealed Section 167, and the first proviso continues to apply, allowing detention up to 180 days.
- The special nature of UAPA (non-obstante clause) means its procedural modifications prevail over the BNSS.
- The appellant’s belated challenge amounts to acquiescence, as held in Javed Siddiqui (SLP (Crl.) No. 908/2026), forfeiting the right to contest the extensions.
The Court's Analysis
The Court began by examining the nature of the reference in Section 43D(2) to Section 167 of the Cr.P.C. It distinguished legislation by reference from legislation by incorporation. Relying on the Bombay High Court’s exposition in Nagani Akram Mohammad Shafi and the Supreme Court’s pronouncements, the Court held that a mere citation without bodily lifting constitutes legislation by reference. Consequently, Section 8(1) of the General Clauses Act, 1897 applies, mandating that the reference be construed as to the provision as re-enacted, i.e., Section 187 of the BNSS.
"the reference to Section 167 of the Cr.P.C. has to be construed as reference to Section 187 of the BNSS in terms of Section 8(1) of the General Clauses Act, 1897."
The Court noted that the BNSS expressly modifies the police-custody scheme but does not alter the overarching time-limits embedded in the first proviso of Section 43D(2). Therefore, the statutory ceiling of 180 days remains operative for UAPA offences, reflecting the legislature’s intent to provide a longer investigative window for terrorism-related crimes.
On the issue of default bail, the Court observed that Section 187(3) BNSS only governs the release after the expiry of the maximum detention period prescribed therein. Since the first proviso extends that period to 180 days, the appellant is not entitled to default bail after 90 days.
The Court also addressed the appellant’s delayed challenge. Citing Javed Siddiqui and the principle of acquiescence, it held that the appellant’s failure to contest the 13 February 2026 extension at the appropriate stage resulted in the order attaining finality. The subsequent challenge, raised only after the second extension and bail denial, could not overturn the earlier order.
Finally, the Court rejected the appellant’s contention that the Public Prosecutor’s report should be disclosed at the stage of seeking an extension. It affirmed the established position that such reports are not required to be furnished to the accused, as they are intended solely for the court’s assessment of investigative progress.
The Verdict
The appeal is dismissed. The trial court’s order dated 13 February 2026 extending remand to 135 days, the order dated 27 March 2026 extending it further to 180 days, and the order dated 30 March 2026 dismissing the default bail application are upheld. No relief is granted to the appellant. The appellant may pursue other remedies available under law, but default bail after 90 days is not available.
What This Means For Similar Cases
Legislation by Reference Trumps Repeal
- When a statute cites a provision of a repealed enactment without incorporating its text, Section 8 of the General Clauses Act mandates that the reference be read as to the re-enacted provision.
- Practitioners must examine whether the reference is by reference or by incorporation before assuming the repeal nullifies the effect.
Default Bail in UAPA Cases Now Requires 180-Day Detention
- The first proviso to Section 43D(2) UAPA remains effective, allowing detention up to 180 days.
- Default bail under Section 187 BNSS is only available after the extended period expires; a 90-day claim is untenable.
Acquiescence Bars Belated Challenges
- Failure to contest an extension order at the earliest opportunity results in acquiescence, extinguishing the right to later challenge the order.
- Counsel must advise clients to file timely objections to any extension of custody.
Practical Checklist for Counsel
- Verify whether a statutory reference is by reference; if so, apply Section 8 GCA.
- In UAPA matters, calculate the total detention period including any extensions before advising on bail.
- Raise objections to extension orders promptly; delayed filings are likely to be dismissed as acquiescence.
- Do not request the Public Prosecutor’s report at the stage of seeking an extension; the court is not obliged to disclose it.
