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2020 Supreme(Del) 622
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vipin Sanghi, Rajnish Bhatnagar, JJ.
Aqil Hussain - Appellant
Versus
State Of NCT Of Delhi & Ors. - Respondent
W.P.(CRL.) 824 of 2020
Decided On : 22-06-2020
Mr. Mehmood Pracha, Mr. Shariq Nisar & Mr. Jatin Bhatt, Advocates for the Appellant; Mr. Rahul Mehra, Standing Counsel; Ms. Richa Kapoor & Mr. Chaitanya Gosain, Advocates along with DCP Rajesh Deo & DCP Pramod Singh Kushwah, for respondent/ GNCTD. Mr. Aman Lekhi, ASG; Mr. Amit Mahajan, Senior Standing Counsel; and Mr. Raj at Nair, Advocate, for the Respondent
The de facto doctrine saves the order passed by the learned ASJ-02 on 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, New Delhi District, Patiala House Court under Section 10(3) of the Code.
Headnote:
CRIMINAL - Habeas Corpus - UAPA - NIA Act - Jurisdiction of Special Court - De facto doctrine - Maintainability of petition - Held, that the petition is not maintainable since the detenue is in judicial custody under orders passed by the learned ASJ-02, Shri Dharmender Rana who was competent to do so.
Fact of the Case:
The petitioner Aqil Hussain preferred a writ of habeas corpus for production of his sister - Ms. Gulfisha Fatima. Gulfisha Fatima was arrested on 09.04.2020 in connection with FIR No. 48/2020 registered under Sections 147/186/188/283/353/109/34 IPC, 1860 at P.S. Jafrabad. The bail application filed by the petitioner's sister under Section 437 Cr.P.C. in case FIR No. 48/2020 was dismissed by the Ld. Metropolitan Magistrate/Duty M.M., Shahdara District, vide order dated 03.05.2020 on various grounds, including on the ground that she was involved in another case, being FIR No. 59/2020, registered under Sections 13/16/17/18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) - Section 120B read with Sections302/307/353/186/212/395/427/435/436/452/454/109/114/147/148/1 24A/153A of the Indian Penal Code, Sections 3 & 4 of the Prevention of Damage to Public Property Act, and Sections 25/27 of the Arms Act, and which is being investigated by the Crime Branch. The petitioner 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, (including sections 13/16/17/18 which have been invoked against Gulfisha Fatima), 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. The petitioner submitted that as the Special Courts empowered to extend the judicial remand custody have not been sitting, the continued detention of Gulfisha Fatima in FIR No. 59/2020 is without any authority of law. Consequently, the petitioner seeks the issuance of a writ of Habeas Corpus for production and release of Gulfisha Fatima, his sister.
Finding of the Court:
The Court held that the petition is not maintainable since the detenue is in judicial custody under orders passed by the learned ASJ-02, Shri Dharmender Rana who was competent to do so. The Court further held that the learned ASJ-02 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 vide his order dated 28.05.2020. 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, New Delhi District, Patiala House Court under Section 10(3) of the Code.
Issues: Whether the petition is maintainable since the detenue is in judicial custody under orders passed by the learned ASJ-02, Shri Dharmender Rana who was competent to do so.
Ratio Decidendi: The Court held that the petition is not maintainable since the detenue is in judicial custody under orders passed by the learned ASJ-02, Shri Dharmender Rana who was competent to do so. The Court further held that the learned ASJ-02 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 vide his order dated 28.05.2020. 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, New Delhi District, Patiala House Court under Section 10(3) of the Code.
Final Decision: The Court dismissed the petition leaving the parties to bear their respective costs.
JUDGMENT
Vipin Sanghi, J. - This petition has been preferred by the petitioner Aqil Hussain to seek a writ of habeas corpus for production of his sister - Ms. Gulfisha Fatima.
2. The petitioner states that the his sister Gulfisha Fatima was arrested on 09.04.2020 in connection with FIR No. 48/2020 registered under Sections 147/186/188/283/353/109/34 IPC, 1860 at P.S. Jafrabad. The bail application filed by the petitioner''s sister under Section 437 Cr.P.C. in case FIR No. 48/2020 was dismissed by the Ld. Metropolitan Magistrate/Duty M.M., Shahdara District, vide order dated 03.05.2020 on various grounds, including on the ground that she was involved in another case, being FIR No. 59/2020, registered under Sections 13/16/17/18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) - Section 120B read with Sections302/307/353/186/212/395/427/435/436/452/454/109/114/147/148/1 24A/153A of the Indian Penal Code, Sections 3 & 4 of the Prevention of Damage to Public Property Act, and Sections 25/27 of the Arms Act, and which is being investigated by the Crime Branch.
3. The petitioner states that aggrieved by the dismissal of the bail application, his sister approached the learned Ld. Sessions Judge under Section 439 of the Cr.P.C. Vide order dated 13.05.2020, the learned Sessions Judge, Shahdara District allowed the bail application of Gulfisha Fatima in FIR No. 48/2020. The petitioner submits that despite Gulfisha Fatima being granted bail in FIR 48/2020, she was illegally continued to be kept in custody on account of the registered FIR No. 59/2020, as aforesaid, by the Crime Branch.
4. The petitioner submits 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, (including sections 13/16/17/18 which have been invoked against Gulfisha Fatima), 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. The petitioner submits that as the Special Courts empowered to extend the judicial remand custody have not been sitting, the continued detention of Gulfisha Fatima in FIR No. 59/2020 is without any authority of law. Consequently, the petitioner seeks the issuance of a writ of Habeas Corpus for production and release of Gulfisha Fatima, his sister.
5. This petition is dated 14.05.2020, and the same appears to have been filed on 18.05.2020. It was listed before the Court, for the first time, on 19.05.2020. On 19.05.2020, Mr. Rahul Mehra, Standing Counsel (Criminal) of the GNCTD, along with Mr. Chaitanya Gosain, Advocate appeared for the respondents. Mr. Mehra made a statement that the petitioner''s sister Gulfisha Fatima had been produced before the Magistrate. However, he sought time to take instructions - whether she had been produced before the Special Court. The matter was adjourned to 20.05.2020.
6. On 20.05.2020, the matter was listed before our Bench. We issued notice in the writ petition to the respondents. Mr. Aman Lekhi, learned ASG, along with Mr. Amit Mahajan, CGSSC appeared for the respondents, and Mr. Mahajan accepted notice. At the same time, Mr. Mehra, Standing counsel for the GNCTD also appeared along with Mr. Chaitanya Gosain, Advocate, and Mr. Mehra also accepted notice. We passed the following order on 20.05.2020.
"Issue notice. Notice is accepted on behalf of the respondents. We may state that both Mr. Amit Mahajan, Standing Counsel for Central Govt. and Mr.Rahul Mehra, Standing Counsel for GNCTD accept notice. It appears that there is lack of clarity as to who should represent the respondents. In any event, we permit both Mr. Mahajan and Mr. Mehra to file their respective replies, which should be filed positively within one week.
On the next date, we shall, apart from dealing with the merits of the case, also call upon Mr. Ma
