The Delhi High Court has dismissed a plea seeking release of Gulfisha Fatima who was arrested in the Delhi riots case.
A bench comprising Justice VipinSanghi and Justice Bhatnagar passed its decision on a habeas corpus plea filed by the Aqil Hussain, the brother of Gulfisha Fatima who was arrested in a protest during the northeast Delhi Riots.
Aqil Hussain alleged that after the Sessions Judge, Shahdara District allowed the bail application of Gulfisha Fatima she was illegally continued to be kept in custody on account of the another FIR registered by the Crime Branch.
He further submitted that Special Courts constituted under the National Investigation Agency Act, 2008 (NIA Act) – empowered to extend the judicial custody of persons charged under any provisions of the UAPA, have not been holding sittings since 23.03.2020 – owing to the suspended functioning of courts subordinate to this Court due to theCOVID-19 pandemic, and the consequent lockdown measures imposed by the Union Government. Since the Special Courts empowered to extend the judicial remand custody have not been sitting, the continued detention of Gulfisha Fatima is without any authority of law, submitted Aqil Hussain. Consequently, the petitioner had approached the High Court seeking issuance of a writ of Habeas Corpus for production and release of Gulfisha Fatima, his sister.
The bench however observed that the Unlawful Activities Prevention Act does not provide that offences under the Act can be tried only by a special court and it is clear that apart from NIA, the other police establishments are equally competent to investigate cases under the UAPA.
The court further observed that “this position is also clear from Section 6(7) of NIA Act, which clears doubts, if any, by declaring that till the NIA takes over the investigation of the case, it shall be the duty of the officer-in-charge of the police station where the case is registered, to continue to investigate”.
“Therefore, Section 45 only lays down the restriction of grant of prior sanction by the Central Government, or the State Government, as the case may be. It does not state that only a Special Court constituted under the NIA Act would have jurisdiction to try offences under the UAPA”, observed the bench.
The bench also said that Additional Sessions Judge Dharmender Rana, was competent to deal with bail application, as well as the aspect of remand of Gulfisha Fatima when he passed the orders on the application moved by the State to seek extension of judicial remand of Gulfisha Fatima, and remanded her to judicial custody till 25.06.2020 vide his order dated 28.05.2020.
Read the order here;VSA22062020CRLW8242020-153017-1
-India Legal Bureau