'Arrest Of 3 Persons With Siddique Kappan Based On Intelligence Inputs, Not Media Reports': UP Govt Tells Allahabad High Court

The Government has thus controverted the priosners' claim that their arrests were perpetrated on the basis of "communal and divisive" reports carried out by several media outlets against them.

As per the Petitioners' counsel, Ankur Azad, the Government has claimed that the arrests were made on the basis of certain intelligence inputs, although the FIR is silent on the said aspect.

Azad also told LiveLaw that it is the Government's case that the three detenus were trying to create Islamic Rule in the nation and it has recovered certain incriminating materials at the time of arrest, in the form of Mobile phones, Laptop, Pamphlets having headlines of "Justice for Hathras Victim" etc. However, as per the Petitioners, they were not carrying any placards or pamphlets.

The Petitioners Atik Ur Rehman, a student; Alam, a cab driver and Masud, an activist, were intercepted by the Deputy Superintendent of Police on October 5, 2002, while they were going to Hathras and were later remanded to judicial custody by CJM Mathura.

As per the Government, the first and third prisoners have a criminal history and in the instant case, they were conspiring to cause riots and caste-based unrest in Hathras.

Accordingly, they have been charged for offences punishable 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

Default Bail

Meanwhile, the Petitioner-accused have sought default bail under Section 167(2) of CrPC.

In a rejoinder affidavit filed through Advocates Shashwat Anand and Ankur Azad, it is stated that the petitioners have been languishing in jail since October 7, 2020, and the period of 90 days expired on January 5, 2021.

It is submitted that no charge-sheet has been filed by the Police authorities and accordingly, the Right to Default Bail accrued to the petitioners on January 6.

It is significant to note that the Additional District and Sessions Judge, Mathura, vide order dated January 4, extended the period of judicial remand of the petitioners from 90 days to 180 days.

The Petitioners have contended that this order (for extension of remand) has been passed without any authority of law, inasmuch as an Additional Sessions Judge is not a competent authority under the NIA Act and it is only a Sessions Judge, who has the authority to extend their remands.

"Both the CJM and the Additional District and Sessions Judge are no Courts, at all, under the statutory scheme of the NIA Act, to deal with any case thereunder…

Obviously, the said order of extension of judicial remand from 90 days to 180 days, has been passed without any authority of law, and as such is void ab inito, non est and total nullity, for inherent lack of jurisdiction," the rejoinder states. Reliance is placed on Bikramjit Singh vs. State of Punjab.

It further reads as under,

"In the circumstances, the petitioners have an indefeasible and absolute right to Default Bail, accrued to them as aforesaid, and are ready and willing to furnish bail, and solemnly undertake to comply with and adhere to such terms and conditions of their release as may be deemed reasonable by this Hon'ble Court."

The matter is now listed for hearing tomorrow, i.e., February 24, 2021.

Sr. Adv. SFA Naqvi, along with Adv. Shashwat Anand, are appearing for the Petitioners.

Sr. Adv. Manish Goyal, AGA along with Adv. Rajesh Mishra, AGA are appearing for the Respondents.

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