Allahabad High Court Issues Notice On Habeas Corpus Petition Against Custody Of 3 Persons Arrested With Siddique Kappan On Way To Hathras

A Bench of Justices Pritinker Diwaker and SC Sharma has issued notices to the Central Government, the State of UP, Superintendent of Jail (District Jail, Mathura) and Prabal Pratap Singh (Sub-Inspector, PS Maant, Mathura - the Informant/ Complainant).

The Court has listed the matter concerning release of Atik Ur Rehman, a student; Alam, a cab driver and Masud, an activist, for hearing on December 14, 2020.

The matter was first heard on Tuesday, whereby the High Court had granted one day's time to the Petitioners to amend their writ petition. The plea now categorically challenges the order of judicial remand, stating that the same is unlawful and suffers from the vice of inherent lack of jurisdiction in that, with the commencement of the National Investigation Agency Act, 2008 , the Court of Magistrate is now, no more a Court, as regards the offences under the Unlawful Activities Prevention Act, 1967.

It is argued that any offence under the Unlawful Activities (Prevention) Act, 1967 (UAPA) is a Scheduled Offence under the National Investigation Act, 2008 and Section 13(1) of the said Act categorically lays down that every Scheduled Offence under the 2008 Act, shall exclusively be triable by a Special Court.

Further, it is contended that CJM, Mathura has no jurisdiction either to try the matter or remand the petitioners to police or judicial custody, in the light of the Judgment of the Hon'ble Supreme Court dated 12/10/2020 (Bikramjit Singh vs. State of Punjab).

Background

The plea has been moved by Shakhavat Kha (maternal uncle and father-in-law of Atik Ur Rehman) through Advocates Shashwat Anand and Sarveshwari Prasad. Arguments were led by Senior Advocate SFA Naqvi.

It is contended therein that the accused-Petitioners, being concerned social activists were going to meet the bereaved family and offer them consolation. Further, Alam, being a taxi/ cab driver was ferrying them to the said destination. However, they were detained on October 5, 2020, in Mathura, while they were on their way.

The plea submits that an FIR dated 07/10/2020 was lodged against them as an afterthought, apparently after the police authorities realized that the Petitioner's arrest and detention is unlawful. They were booked under Sections 153-A, 124-A, 295-A of IPC , Sections 17 and 18 of UAPA and Section 65, 72 and 75 of the IT Act. Thereafter, they were produced in the Court of CJM, Mathura, on the said date in the afternoon and were remanded to judicial custody for 14 days.

On Friday, a local Court in Mathura rejected their bail pleas in view of the bar under Section 43D(5) in The Unlawful Activities (Prevention) Act, 1967.

It is alleged that thereafter, "in illegal exercise of powers by the Executive Magistrate (SDM, Maant, Mathura), totally beyond the applicable purview and domain of Ss. 107/116/151 and S. 167 CrPC," the Petitioners were sent to jail in judicial custody of 14 days (being successively extended).

The Plea also contends,

"The Chief Judicial Magistrate, Mathura, vide its Order dated 04/11/2020 has illegally handed them over to police custody of Respondent No. 2, from 04/11/2020 05:00PM to 06/11/2020 05:00PM, upon their application under S.43D(2) of UAPA, 1967 claiming 10 days police remand, in sheer defiance of the settled law of the land, applicable to the instant case."

The plea argues that "from a bare perusal of the said FIR dated 07/10/2020, it is conspicuous, that no offence has been made out as against the petitioners".

The plea also states,

"The petitioners are unfortunate victims and scapegoats of the high-handedness of the police authorities. They have committed no offence, which is clear from a bare perusal of the Sections, slapped on them and the allegations in the FIR, which are completely false and bogus, and no case as against them is made out."

It is therefore urged that a writ in the nature of Habeas Corpus be issued, quashing the remand order passed by CJM, Mathura. It is also pleaded that the FIR against the accused-Petitioners be quashed.

An interim relief is also sought for enlarging the petitioners on bail during the pendency of the instant proceedings. Petitioners have also sought permission to interact with their lawyers, and family members, through regular interviews via Video Conferencing and have urged that the District Judge, Mathura, be directed to visit the Mathura District Jail, to inquire into the Human Rights Violations in the jail premises, if any, and submit a report before the High Court. 

The Chief Judicial Magistrate (CJM), Mathura Anju Rajput had on 16^th October dismissed an application filed by the Kerala Union of Working Journalists (KUWJ) to meet Malayalam Journalist Siddique Kappan, presently lodged at Mathura jail.

Significantly, the Kerala Union of Working Journalists has filed an application for interim directions before the Supreme Court, seeking permission for regular VC meetings of Kerala journalist, Siddique Kappan, with his family members and lawyers.

A habeas corpus plea seeking his relief is already pending before the Supreme Court and on the previous hearing, the Court issued notice in the matter, while noting that there was a possibility that the Petitioner would be directed to approach the High Court. CJI Bobde said that they are trying to discourage Article 32 petitions.

Click Here To Download Order

Read Order