Former Congress councillor and human rights defender Ishrat Jahan’s bail application came up for hearing before a Delhi district today, on August 26. She has been booked under the Unlawful Activities (Prevention) Act (UAPA) in connection with the Northeast Delhi violence case.

Pradeep Teotia, appearing for Jahan, told the court that the Delhi Police is unnecessarily increasing her period of incarceration and deriving “sadistic pleasure” out of this. Additional Public Prosecutor, Amit Prasad (appearing for Delhi Police) argued that Jahan’s bail application was not maintainable because it was filed under section 439 (Special powers of High Court or Court of Session regarding bail) of the Criminal Procedure Code whereas, the special court can only hear cases filed under section 437, which deals with the provisions of when bail matters may be taken up in case of a non-bailable offence.

To this, Pradeep Teotia told Additional Sessions Judge Amitabh Rawat that the court had heard bail applications under section 439 and that the prosecution knew this beforehand and still did not point it out earlier. He said, “Rule of practice and Rule of law are different. Prosecution wants to derive sadistic pleasure that I will continue to be in custody? I can file a new application. The Court has already heard the application on merits.”

The court also raised the issue that the arguments will remain the same irrespective of applications. But Amit Prasad contended that the arguments will change. He argued,  “By invoking a wrong provision of law, they (Ishrat Jahan) can’t seek remedy. If the application itself is not maintainable, what are we arguing about then?”

To this, Teotia reiterated that the State should have highlighted this issue earlier and not wait for six months to pass by. He argued, “This is torture on me also. After taking so much of Court’s time! Then, one should also not seek bail orally. I don’t have any words. Someone has been in jail, court can’t see if prosecution and defense are fighting like cat and mouse.”

He added that this is a trivial issue and that this will not change his prayer, facts of the case or his arguments for bail. The court asked if the procedure is different because this is a bail application under the stringent anti-terror law. Judge Rawat asked, “Is there not a requirement to file an application?” Teotia expressed his displeasure over filing a second application for which another date will have to be sought, delaying the process of seeking bail.

He further said that the case should be adjudicated fairly and hiding the issue of maintainability for 6 months and then raising it, is a “waste of judicial time”. Public Prosecutor Amit Prasad argued that he had judicial precedents in support of his arguments, and the court asked him to submit the judgments in this regard. The matter has been posted on September 1 for further hearing.

Related:

No evidence of conspiracy against me: Ishrat Jahan to Delhi court
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Meet Ishrat Jahan citizen, advocate, activist, politician, daughter, sister, and wife

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An important order delivered by a Division Bench of the High Court of Jammu and Kashmir and Ladakh, has held that the request of an Investigating Officer (IO) for time extension for detaining an accused beyond the stipulated period of 90 days, cannot be a substitute for the report of the public prosecutor under section 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967.

Section 43D(2)(b) provides that if the investigation agency has not been able to complete the investigation in the case within the prescribed period of 90 days, the public prosecutor appearing for the agency has to mandatorily file a report before the court. Further, if the court is satisfied by such a report, the progress of the investigation and the specific reasons provided by the prosecutor for detaining the accused, it shall extend the period of custody to 180 days.

In the present case before the High Court, the appellants, Showkat Ahmad and Nayeem Ahmad Khan, have had their detention period extended thrice by the trial court, Srinagar, beyond the period of ninety days. They contended before the High Court that there is no report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of ninety days. It was argued that the trial court did not provide any specific reason to extend their detention.

Showkat and Nayeem have been booked under sections 17 (punishment for raising funds for a terrorist act), 18 (punishment for conspiracy), 38 (offence relating to membership of a terrorist organisation), 39 (offence relating to support to a terrorist organisation) and 40 (offence of raising funds for terrorist act) of UAPA.

Court’s observations

After being denied bail by the trial court, the appellants approached the High Court, averring that since the police agency couldn’t complete its investigation within a period of 90 days, they should be released on bail.

On the outset, the Division Bench of Justices Dhiraj Singh Thakur and Vinod Chatterji Koul, noted that the trial court had misdirected itself by not granting bail to them. “It is pertinent to mention here that the status of the prosecutor is not a part of the investigating agency as it is an independent statutory authority,” read the order.

The Bench referred to two cases of State of Maharashtra v. Surendra Pundlik Gadling (2019) and Hitendra Vishnu Thakur and others v. State of Maharashtra and others (1994), where the Supreme Court has ruled that the public prosecutor has the option to agree or disagree with the reasons given by the Investigating Officer (IO) for seeking extension of time, and that the request of an IO for extension of time is not a substitute for the report of the public prosecutor.

Citing these cases, the High Court Bench reiterated, “It comes to fore that emphasis has been laid by the Supreme Court on the importance of scrutiny by a Public Prosecutor so as not to leave a detenu in the hands of I.O. alone, inasmuch as Public Prosecutor has an option to agree or disagree with the reasons given by I.O. for seeking extension of time. Besides, request of I.O. for extension of time is not a substitute for the report of a public prosecutor under the provisions of Section 43D (2)(b) of ULA(P) Act.”

Noting that the trial court did not deal with the rights of the appellants to grant of default bail, the High Court set aside its order and granted bail to Showkat and Nayeem.

The order may be read here:

Related:

Understanding the UAPA
HRD Ishrat Jahan awaits bail in Delhi Violence Case
Delhi HC’s fitting reply to the criminalisation of dissent and protest
Bail under UAPA: Does the new SC judgment offer a ray of hope?

The post PP must submit report giving specific reasons for detention under UAPA: J&K and Ladakh HC appeared first on SabrangIndia.

protests against the atrocity (Image: Indian express)

Three years ago, on July 11^th 2016, 6 Dalit members of a family and their neighbour were thrashed in Una,  Gir somnath district, Gujrat by gau rakshaks for skinning a dead cow that was killed by a lioness.

The Dalit men were paraded semi naked, trashed and then dragged behind the SUV of the accused to the police station where they again beat up the men and fled later when the police arrived.

The video of the men being trashed with sticks, pipes and even knives went viral causing protest all over the state.
 

And the trial began 2 years after the incident in 2018.  Dipendra Yadav, who was appointed as the special public prosecutor in this case, had written to the concerned authorities asking for an office space, security and transport facilities but his demands were not met. He had threatened to quit within 3 months of being appointed for lack of security.

There was opposition from both the defense and prosecution on the plea from the victims’ lawyer Govind Paramar for the case to be expedited and be taken up on day-to-day basis.

But the special court of fifth Additional District in Veraval which handles the cases pertaining to the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act allowed the petition and ordered for conducting the case on daily basis for 90 days. And the case was to begin from July 29^th.

The decision of the prosecutor to quit has come as a blow to the victims as this step may put the trial on hold once again. They hope that the judiciary and the department of law will take some positive step to ensure the trial proceeds as they have waited from three years.

Yadav was fed up of waiting for the Government to provide him security, remuneration, transport and office space. His application will be heard on 26^th July after which the court will decide to accept or not his decision to quit from the case.

Courtesy: Two Circle

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