"Bail Application Under Stringent Law Like UAPA Should Not Be Dismissed Due To Technical Mistakes": Riots Accused Tells Delhi Court

Seeking bail in the Delhi Riots larger conspiracy case, riots accused Gulfisha Fatima has told a Delhi Court that bail application under stringent law like Unlawful Activities (Prevention) Act should not be dismissed merely due to some technical mistakes.

Advocate Mehmood Pracha told Additional Sessions Judge Amitabh Rawat that sec. 16(3) of National Investigation Agency Act gives a hybrid power to the Special Court to deal with bail application both under sec. 437 CrPC and 439 CrPC.

The development came after Special Public Prosecutor Amit Prasad, while objecting to the maintainability of bail plea filed by co-accused Ishrat Jahan in the case, submitted that application filed under Section 437 must have been moved in place of Section 439 of CrPC, primarily because the Court hearing the plea is a special court designated under UAPA Act and therefore exercises all powers that are before the Court of Magistrate within the rigours of Section 437 of CrPC.

Pracha submitted before the Court thus:

"This Court has the power to take cognizance as a special court as well as the powers of sessions court. Sec. 16(3) of NIA Act has the power under sec. 439 CrPC as well as other powers under CrPC."

He also submitted that the chargesheet in the matter was filed before the Court while exercising power as a Sessions Judge and not a special judge, therefore the Prosecution cannot approach the Court by challenging maintainability at the stage of bail.

"The issue is still pending. How are they approaching your lordship? Where is the chargesheet as the special judge?" Pracha submitted.

He also added that there are exemplary powers with the Court and that the Court is duty bound at the very existence to find out the truth.

Accordingly, the matter was adjourned to Saturday for further hearing in the matter.

Similarly, co accused Shifa ur Rehman had told the Court that UAPA provides for the source of the power of a Special Court to deal with an application for Regular Bail and that sec. 43(D) 5 of UAPA is not the source of power to grant bail but only a restriction on the power to grant bail. It was also argued that power of the Special Court to grant regular bail can be traced back only to Section 439 and not Section 437 CrPC.

In a similar development, co accused Umar Khalid and Khalid Saifi had withdrawn their bail applications filed under sec. 439 CrPC and substituted the same with the one under sec. 437 CrPC.

FIR 59/2020 contains stringent charges including Sections 13, 16, 17, 18 of the UAPA, Sections 25 and 27 of the Arms Act and Sections 3 and 4 of the Prevention of Damage to Public Property Act,1984 and other offences under Indian Penal Code, 1860.