[Delhi Riots] Prosecution questions maintainability of Ishrat Jahan bail plea; defence asks why it wasn't raised before

The prosecution on Thursday raised the issue of maintainability of the bail application filed by former councillor Ishrat Jahan, accused in a Delhi riots case under Unlawful Activities (Prevention) Act [State v. Ishrat Jahan]..Appearing before Additional Sessions Judge Amitabh Rawat, Special Public Prosecutor Amit Prasad argued that Jahan’s bail plea was filed under Section 439 of Code of Criminal Procedure (CrPC) and the same could not be entertained by a special court such as this..He referred to various judgments and provisions of the Code to buttress his arguments. According to the SPP, Jahan’s only option was to withdraw the present bail plea and file a fresh one under the relevant provision of Section 437 CrPC.Counsel appearing for Jahan strongly objected to the prosecutor’s arguments on maintainability. “Can such a trivial issue be made into a hyper technical issue? How does it change my prayer? Would my arguments change? Would the facts change? Where does the law bar the Court not to treat a plea… if a request made orally?” he argued..The Court, however, inquired about the requirement of a bail application to be filed in a case lodged under UAPA.Jahan’s counsel responded, “How does the soul of bail change? There is no requirement.... Bail can be given on an oral request also.”.He contended that the prosecution could argue keeping in mind UAPA. He added, “But on Section 437… made out or not, I never said it cannot be filed. It is just that why should I again take a date?”Prasad, on the other hand, said, “I want to put a simple proposition. Assuming application has made a case of bail and court grants bail, would that grant of bail not hit at the root of bail? The plea on the basis of which the bail is granted in itself is not maintainable.”.The prosecutor also pointed out that making an oral prayer for bail was an exception. “We can't have it as a general rule,” he said.However, the defence counsel argued that the issue was not so technical, and that the prayer would change if he changed the provision on the bail plea. “I am only asking for bail in a UAPA case. This is not such a big issue,” he stressed..The Court opined that now that the issue had been raised, the prosecution should share the relevant judgments it had relied on.Jahan’s counsel, however, retorted, “I will look at judgments only when I am disagreeing with you (prosecution). But I am not. If someone has been languishing in jail. As a prosecutor also, being pro-investigation or pro-State is not the role. As officers of the court we have to fairly inform the Court.”.The prosecutor replied and said, “Ishrat is a lawyer herself and you being her counsel…”The counsel then stated, “Ye toh khilwad hai (this has become a game)… Suddenly you are raising the issue of maintainability after six months. Case should be adjudicated fairly. Hiding it (issue of maintainability) for six months and then raising it, is a wastage of judicial time.”The next hearing will take place on September 1.Jahan is being represented by Gaurav Dalal and Associates..Jahan was arrested in March 2020 in connection with Delhi riots FIR No 59/2020 for alleged commission of offences under provisions of the Indian Penal Code, Prevention of Damage to Public Property Act, Arms Act and the UAPA..Delhi Riots: Delhi Court grants interim bail to former Congress municipal councillor on account of her wedding.In July last year, the Delhi High Court dismissed the former Congress Councillor's petition against the extension of time period to conclude the investigation in the case against her.