Delhi High Court has upheld the decision of the Additional Sessions Judge Dharmender Rana wherein the judicial remand of Gulfisha Khatun, who was arrested for offences under Unlawful Activities Prevention Act, was extended till June 26.
While refusing to entertain the habeas corpus petition, the Division Bench of Justice Vipin Sanghi and Justice Rajneesh Bhatnagar noted that the concerned ASJ acted well within his powers to extend the judicial remand of Khatun, as he was designated by the District & Sessions Judge, Be Delhi District, to take up UAPA remand matters in his absence.
The court further said:
'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. Just because UAPA is one of the enlisted enactments in the Schedule to the NIA Act, it does not follow that every offence under the UAPA has necessarily to be investigated by the NIA, and that the trial of such case necessarily has to proceed before the Special Court.'
The order has come in a habeas corpus petition filed by Aqil Hussain seeking production of his sister who was arrested for allegedly participating in the Delhi riots.
The Petitioner had submitted that despite being granted bail by the Magistrate for offences under IPC, the accused was not released as she could not be produced before a Special NIA court for charges under UAPA.
The reason for such non-production was that during the lockdown, the Special NIA courts had ceased to function. Therefore, the Petitioner argued that the continued detention of the accused is illegal as she could not be produced before a Special Court due to their non-functioning.
However, the court was informed about a subsequent development, wherein the accused's judicial remand was extended till June 26 by ASJ Dharmender Rana by an order dated 28/05/20.
The Petitioner challenged the legality of the said order by arguing that the ASJ passed the order without proper jurisdiction as under UAPA, only Special Courts designated by the Central Government can take up matters investigated by NIA.
The court noted that the District & Sessions Judge fairly acted under his powers enshrined in section 10(3) of the Criminal Procedure Code to assign his work to ASJ Dharmender Rana to take up urgent bail applications and remand matters under UAPA.
Therefore, the court held that ASJ Dharmender Rana was competent to deal with bail application, as well as the aspect of remand of Ms. 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 by order dated 28.05.2020.
The court further added:
'Even if, for the sake of argument, it were to be assumed that for some reason, Shri Dharmender Rana was not the competent Court to deal with the aspect of grant of bail/ extension of remand of Gulfisha Fatima, it is clear to us that the de facto doctrine would save his order dated 28.05.2020, since he is an Additional District and Sessions Judge, and he acted under the colour of authority while exercising the jurisdiction vested in him by the order dated 22.05.2020 passed by the learned District and Sessions Judge.'
The court highlighted that the said doctrine has been evolved to preserve good order and peace in the society and to protect the interest of the public and the individual.
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