Allahabad HC Seeks Response From Central & State Authorities In Habeas Corpus Petition Against Custody Of 3 Persons Arrested With Siddique Kappan On Way To Hathras
The Allahabad High Court on Tuesday directed the Central and the State Government to file their counter-affidavits in a Habeas Corpus petition filed by 3 alleged PFI Members, arrested by the UP Police while they were going to Hathras to meet family of the deceased gang-rape victim and later remanded to judicial custody by CJM Mathura. A Division Bench of the Court had...
The Allahabad High Court on Tuesday directed the Central and the State Government to file their counter-affidavits in a Habeas Corpus petition filed by 3 alleged PFI Members, arrested by the UP Police while they were going to Hathras to meet family of the deceased gang-rape victim and later remanded to judicial custody by CJM Mathura.
A Division Bench of the Court had earlier issued notices to the concerned authorities, vide order dated November 18, 2020.
When the matter was taken up on Tuesday, January 5, the Bench comprising Justices Surya Prakash Kesarwani and Shamim Ahmed directed the State-respondents as well as Union of India to file their replies within two weeks.
The Petitioners were booked under the stringent Unlawful Activities (Prevention) Act, 1967 (UAPA) while they were going to meet the bereaved family in Hathras. In the present petition filed through Advocates Shashwat Anand and Ankur Azad, they have challenged the FIR and their custody order as illegal.
During the hearing on Tuesday, the Petitioners filed a supplementary affidavit, stating that they are the 'unfortunate scapegoats' of a game of quid pro quo going on between the Police and the Media, as part of their face-saving and image-building campaign by diverting attention from the misdeeds in Hathras to an imaginary 'Conspiracy to Cause Riots and Caste-based Unrest'.
"The impugned FIR is based upon "Media Reports" while, all the media reports (supra) whereupon it is stated to be based, have in fact, cited the statements and information supplied by the Police Authorities as the basis of their reports," the Petitioners pointed out citing contents of both the FIRs as well as various media reports.
Illegality of Custody
It may also be noted that the Petitioners have challenged the order of judicial remand, inasmuch as it was passed by the Court of Magistrate, which is alleged to not be a competent authority for dealing with cases under the scheduled offences of UAPA, in terms of Section 13(1) of the National Investigation Agency Act, 2008.
When this issue was raised in the writ petition, the UP Police's Special Task Force (which is investigating the case), moved an application to transfer all the Remand Records from the Court of CJM, Mathura to the Court of Additional District and Sessions Judge, Mathura.
The application was allowed and the Mathura District and Sessions Judge transferred the case to Additional District and Session Judge.
Referring to these developments, the Petitioners have submitted that they are languishing in unlawful judicial custody ever since they were unlawfully arrested and detained, which fact is clear from the application made to the District and Sessions Judge, Mathura, by Deputy Superintendent of Police, STF, categorically stating that trial and remand in regard to offences under UAPA, 1967, lies within the jurisdiction of a Special Court under S. 22 of the NIA Act, 2008, failing which the jurisdiction lies with the Sessions Court.
Further, the Petitioners have contended that the transfer order passed by ADSJ, Mathura, also suffers from the vice of inherent lack of jurisdiction, not being a designated Special Court under the NIA Act, 2008, and is also void for the reason that the ADSJ, Mathura, cannot 'accept/ratify' the non est remand order passed by the CJM, Mathura, as the same also suffers from inherent lack of jurisdiction.
Registration of Two FIRs illegal
Inter alia, the Petitioners have contested registration of two FIRs against them dated 4.10.2020 (at Hathras) and 7.10.2020 (at Mathura), with identical subject-matter, i.e. 'Conspiracy to instigate Riots and create Caste-based Unrest.
They referred to the observations made by the Apex Court in TT Antony v. State of Kerala, (2001) 6 SCC 181, that there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.
"This is due to the fact that the investigation covers within its ambit not just the alleged cognizable offence, but also any other connected offences that may be found to have been committed," the Petitioners added.
They further submitted that the Apex Court has categorically held thar "a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
The Court has granted liberty to the Petitioners to file a rejoinder affidavit within three days of filing of a counter by the Respondents.
The matter is now fixed for hearing on January 27, 2021.
Case Title: Atiq Ur Rehman & Ors. v. State of UP & Anr.