Delhi High Court
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UAPA offences triable by courts other than Special Court under NIA Act: Delhi High Court

Aditi Singh

Holding that Unlawful Activities Prevention Act (UAPA) does not state that offences under it can be tried only by a Special Court constituted under NIA Act, the Delhi High Court today dismissed a habeas corpus petition concerning the alleged illegality of custody of Delhi riots accused. (Aqil Hussian vs State & Ors)

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.
Delhi High Court held.

A judgment to this effect was passed by a Division Bench of Justices Vipin Sanghi and Rajnish Bhatnagar.

The sister of the Petitioner, Aqil Hussain was arrested by the Delhi Police in connection with an FIR registered for the Delhi riots and was thereafter remanded to judicial custody.

In the meantime, offence under UAPA were added to the FIR in question.

Subsequently, a remand application was moved by the Delhi Police before the concerned designated Court under UAPA, i.e. the Court of Additional Sessions Judge Dharmender Rana, for extension of judicial remand of the Petitioner's sister.

After hearing the parties, the Court extended the judicial custody remand of the Petitioner's sister.

It was the Petitioner's case that due to invocation of offences under UAPA, only a Special Court constituted and empowered under Section 13 of the NIA Act could remand his sister to custody.

Since these Special Courts had not been sitting due to the lockdown on account of COVID-19, grant of custody of the Petitioner's sister by an Additional Sessions Judge was without authority of law and illegal, it was argued.

Inter alia, the Petitioner also challenged the appointment of Standing Counsel Amit Mahajan as the Special Public Prosecutor, and several Law Officers as the Special Counsel for the case.

It was stated that since the appointment was not made under Section 15 of the NIA Act, it could not be sustained.

The Court, at the outset, rejected the objections against the appointment of special counsel on the ground that case before it was a writ petition under Article 226 of the Constitution of India.

"The High Court is not a Special Court designated by the Central Government under Section 11 of the NIA Act and, in the present case, the Central Government has not, in terms of Section 6(4) of the NIA Act, directed the NIA to investigate the offences alleged against Gulfisha Fatima. Therefore, in our view, advertence to Section 2(e) and Section 15 of the NIA Act is completely misplaced.", it said.

The Central Government broadly argued that the National Investigation Agency (NIA) did not per se get the power or jurisdiction to investigate all cases registered under scheduled enactments contained in the NIA Act, including the UAPA.

The Court was informed that in the present case, although UAPA had been invoked, the case had not been assigned to the NIA for investigation by the Central Government and the Delhi Police continued with the investigation of the case.

The Central Government thus submitted that the Petitioner's argument that only the NIA designated Special Court could have remanded his sister to judicial Custody was not sustainable.

In view of the submissions made by the parties, the Court opined that the Petitioner's reliance on the NIA Act was "completely misleading and is a red herring".

The Court observed that the NIA Act primarily pertained to the constitution of the National Investigation Agency, and provided for the trial of cases entrusted to and investigated by the NIA in respect of scheduled offences, by a Special Court.

In the present case, it was nobody's case that the Central Government had entrusted the investigation registered against the detenue under UAPA to the NIA, the Court added.

As far as UAPA was concerned, the Court further observed that the other police establishments were equally competent to investigate cases under it.

The UAPA does not state that all cases under the said act necessarily have to be investigated by the NIA. Section 43 of the UAPA prescribes the ranks of Police Officers competent to investigate offences under Chapters IV and VI of the said Act by different Police Organisations.. 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.
Delhi High Court noted.

In the light of the fact that the District and Sessions Judge, New Delhi District had assigned cases under UAPA to Additional Sessions Judge Dharmender Rana in terms of Section 10(3) CrPC and that Judge Rana did preside over a court of Sessions, the Court concluded that Judge Rana was competent to deal with the bail application, as well as the aspect of extension of remand.

It added that even if it were to be assumed that for some reason, Judge Rana was not competent, the de facto doctrine would save his order since he is an Additional District and Sessions Judge who acted under the colour of authority vested in him by the order passed by the learned District and Sessions Judge under Section 10(3) of the Code.

To hold otherwise would cause public disorder, confusion and mischief. The said Doctrine has been evolved to preserve good order and peace in the society and to protect interest of the public and the individual.
Delhi High Court

In view of the well-settled law that a writ of habeas corpus did not lie where a person was under detention/ arrest in pursuance of orders passed by a judicial officer who was not a usurper of authority, the Court held that the present writ petition was not maintainable.

Advocates Mehmood Pracha, Shariq Nisar and Jatin Bhatt appeared for the Petitioner.

Centre was represented by Additional Solicitor General Aman Lekhi with Standing Counsel Amit Mahajan and Advocate Rajat Nair.

Read the Order:

Aqil Hussian vs State & Ors - final order.pdf
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