Delhi HC Rules Order Granting UAPA Custody Extension Is Interlocutory, Not Appealable Under NIA Act

A Division Bench of the Delhi High Court held that an order extending UAPA investigation custody from 90 to 180 days is interlocutory and cannot be appealed under Section 21 of the NIA Act, converting the appeal to a Section 482 CrPC petition instead.

The Delhi High Court, in a judgment pronounced on 4 August 2026, held that an order passed by a Special NIA Court granting extension of the investigation period under Section 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967 is an interlocutory order, and therefore no appeal against it lies before the High Court under Section 21 of the National Investigation Agency Act, 2008. The Division Bench of Justice Prathiba M. Singh and Justice Vikas Mahajan drew a deliberate distinction between an order refusing extension—which a coordinate bench had previously held to be appealable—and an order granting extension, finding that the two carry fundamentally different legal consequences. The ruling arose from a challenge by six Ukrainian nationals who contended that the Special Court's extension order had effectively defeated their right to default bail.

The Dispute Before the Court

FIR No. RC No. 7/2026/NIA/DLI was registered on 13 March 2026 by the National Investigation Agency at P.S. NIA, New Delhi. The allegation against the appellants—identified as Ukrainian nationals—was that they were conspiring with local ethnic armed groups in India to hamper national security and carry out attacks in Myanmar. All six were arrested on the day the FIR was registered, at airports in Lucknow and Delhi. They were produced before a Magistrate on 14 March 2026 and remanded first to police custody and then to judicial custody.

On 3 June 2026, the NIA moved an application under Section 43D(2)(b) of the UAPA read with Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking to extend the investigation period to 180 days. The grounds included an ongoing investigation with multiple facets of the alleged conspiracy still to be examined, and digital devices seized from the appellants requiring further forensic analysis. The Special Judge (NIA Court), Patiala House Courts, heard the parties on 4 June 2026 and allowed the extension.

The 90-day period from the date of arrest would have lapsed on 10 June 2026. Because the extension was already granted by 4 June 2026, the appellants were unable to apply for default bail on that date. Aggrieved, they filed CRL.A. 630/2026 before the Division Bench under Section 21 of the NIA Act.

The Preliminary Objection on Maintainability

When the appeal first came up on 10 July 2026, Mr. Rahul Tyagi, Special Public Prosecutor for the NIA, raised a preliminary objection. His submission was that the impugned order was an interlocutory order against which an appeal under Section 21 of the NIA Act would not lie. Section 21(1) of the NIA Act permits an appeal to the High Court from any judgment, sentence or order of a Special Court “not being an interlocutory order.” Section 21(3) expressly bars any appeal or revision from an interlocutory order of a Special Court. The SPP pointed to decisions of the Guwahati High Court in Jai Kishan Sharma v. Union of India, 2019 SCC OnLine Gau 5814, and the Full Bench decision in National Investigation Agency v. Akhil Gogoi, 2022 SCC OnLine Gau 1446, both of which had taken the view that an order granting extension of custody is interlocutory. He also submitted that the coordinate bench decision in State (NCT of Delhi) v. Anamul Ansari, 2024:DHC:9588-DB, though relied on by the appellants, was itself pending challenge before the Supreme Court in SLP (Crl.) No. 4633/2025.

Ms. Nithya Ramakrishnan, Senior Counsel for the appellants, countered that the order had finality attached to it because its direct result was the defeat of the appellants' right to default bail. She urged the three-pronged test from the Supreme Court's decision in Madhu Limaye v. The State of Maharashtra, (1977) 4 SCC 551: whether the order concludes the proceedings absolutely; whether it terminates the proceedings for any party; and whether it falls within the intermediate category identified in Madhu Limaye. On all three counts, she argued, the order could not be called merely interlocutory. She further submitted that if the Court found the appeal not maintainable, it should convert the proceedings to a petition under Section 482 CrPC, relying on the coordinate bench decision in Syed Shahid Yousuf v. National Investigation Agency, 2018 SCC OnLine Del 9329.

How the Bench Reasoned

The Division Bench reserved judgment on maintainability on 30 July 2026 and pronounced it on 4 August 2026. Justice Prathiba M. Singh, writing for the bench, began by examining the coordinate bench ruling in Anamul Ansari. That decision had considered three categories of orders—final, interlocutory, and intermediate—and held that an order refusing to grant extension under Section 43D(2)(b) carried irreversible consequences for the prosecution: the accused would be entitled to default bail, and the release would directly affect an ongoing investigation involving serious offences including UAPA allegations. The coordinate bench had therefore held such a refusal order to be appealable.

The present bench accepted that reasoning for refusal orders, but declined to apply it symmetrically to orders granting extension. The court's core holding turned on what happens to the right to default bail when extension is granted. The bench held that the right to default bail under the UAPA is not an absolute right; it is a statutory entitlement that the Trial Court may defer if satisfied about the progress of investigation and the specific reasons for continued detention. When extension is granted, the right is not extinguished—it is merely postponed. In the court's words, the availment of default bail is shifted from the 91st day to the 181st day.

The bench found that this consequence does not give the extension order the character of an intermediate order, let alone a final one. Applying the Madhu Limaye framework, it held that an order granting extension lacks even the “trappings of irretrievable consequences” that mark intermediate orders. The Trial Court has exercised a discretion conditioned on statutory satisfaction criteria—the Public Prosecutor's report on progress and specific reasons for detention—and the proceeding does not come to an end with such an order. After the extended period lapses, the question of further extension or default bail will arise again, making the order plainly interlocutory in character.

The bench also pointed to the legislative design: at the stage of granting extension, the Public Prosecutor's report is placed before the Trial Court alone and is not shared with the accused. The merits of that report are assessed only for the limited purpose of granting extension. The legislature, the bench reasoned, did not intend such an order to be drawn into appellate proceedings under Section 21 of the NIA Act.

The bench expressly agreed with the view taken in Syed Shahid Yousuf that an order granting extension of time for investigation is amenable only to judicial review under Section 482 CrPC or, now, Section 528 of the BNSS. It also endorsed the Guwahati High Court's position in Jai Kishan Sharma and the Full Bench in Akhil Gogoi that such an order does not terminate proceedings or finally determine the rights of parties.

The Trial Court's Order Under Challenge

The bench also noted the specific findings of the Special Judge when granting the extension. The Special Judge had observed that the Public Prosecutor's sealed report contained specific facts about the progress of the investigation, new evidence collected by the investigating officer, and reasons why the investigation remained incomplete. The Trial Court had inspected the case diaries, found them corroborative, and concluded that the investigating officer had justifiable grounds for seeking further time. The extension was allowed for all seven accused named in the case—Matthew Aaron Van Dyke, Hurba Petro, Slyviak Taras, Ivan Sukmanovskyi, Stefankiv Marian, Honcharuk Maksim, and Kaminskyi Viktor.

The Special Judge had also addressed the appellants' objection that the extension application was premature because the 90-day period had not yet lapsed when the application was moved on 3 June 2026. The Trial Court rejected the argument that such applications must be deferred to the 90th day, holding that the purpose of the provision is legal justification for continued custody rather than timing the application to coincide with a default bail window.

The Asymmetry Between Refusal and Grant Orders

The bench carefully explained why the position for orders refusing extension differs from orders granting extension. In Anamul Ansari, the coordinate bench had found that a refusal order had irreversible consequences for the prosecution: once the accused is released on default bail in a UAPA case, the Trial Court cannot impose stringent conditions, and the risk to investigation, witnesses, and national security is concrete and immediate. The prosecution cannot undo that release. That asymmetry in consequences justified treating refusal orders as having finality.

By contrast, when extension is granted, the accused remains in judicial custody but retains the right to approach the court at the end of the extended period. The consequences, though significant to liberty, are not irreversible in the same sense. The bench declined to hold that every order touching on personal liberty thereby acquires finality for purposes of appeal under Section 21.

The bench was aware that Anamul Ansari is pending before the Supreme Court. It noted this fact but proceeded independently, considering the nature of a grant order as a distinct question from the nature of a refusal order.

Outcome

The Division Bench held the criminal appeal to be not maintainable under Section 21 of the NIA Act, as the impugned order granting extension of time for investigation under Section 43D(2)(b) of the UAPA is an interlocutory order. The bench reiterated that such orders are amenable only to judicial review under Section 482 CrPC or Section 528 of the BNSS.

Rather than requiring the appellants to file a fresh petition—given that they remain in custody and procuring affidavits and vakalatnamas would cause delay—the bench directed that CRL.A. 630/2026 be renumbered as a writ petition under Section 482 CrPC/Section 528 of the BNSS and listed before the concerned Roster Bench.