"Bail Plea Doesn't Become Maintainable By Invoking Wrong Provisions In Law": Prosecution Opposes Ishrat Jahan's Bail Plea In Riots Case

Opposing a bail plea moved by Former Congress Councillor Ishrat Jahan in Delhi riots larger conspiracy case, the Prosecution has challenged the maintainability of the bail application moved by Jahan.

Additional Sessions Judge Amitabh Rawat was informed by Special Public Prosecutor Amit Prasad that bail application filed under sec. 437 must have been moved in place of sec. 439 of CrPC primarily because of the reason that the Court hearing the plea is a special court designated under UAPA Act and therefore exercises all powers that are before the Court of Magistrate within the rigours of sec. 437 of CrPC.

"An application under sec. 437 is applicable in these cases. All the applications across the board are filed under sec. 439 and thus are not maintainable," Prasad argued.

He therefore argued that as a designated Court, application under sec. 439 is not maintainable.

"All the rigours of sec. 437 will apply the moment the provision applies to a Court," he argued.

To support this argument, Prasad relied on a full bench judgment of the Gauhati High Court dealing with the powers of the Magistrate and the Supreme Court judgment in the Watali case which upheld the observations made in the Gauhati High Court case.

Arguing that Jahan must withdraw her application under sec. 439 of CrPC, Prasad submitted that the maintainability of bail applications is at the root of law.

On the other hand Advocate Gaurav Dalal appearing for Jahan said that he will rebut by relying on certain judgments and asked the SPP to clarify if he will argue only on maintainability or whether he'll also argue on merits.

On this, Prasad said:

"By invoking a wrong provision of law, an application doesn't become maintainable. Maintainability is at the roots of law."

On the other hand, Advocate Pradeep Teotia appearing for Jahan submitted thus:

"I didn't object that the application cannot be made under sec. 437. If they would have said this before 6 months, I would have understood. They are increasing my incarceration like this. What effect will it have on my prayer, facts or Arguments?"

Teotia also submitted that the effect of bail hearing will not change even in the case of UAPA.

Refuting this, Prasar argued:

"Assume a situation that applicant has make a case of bail and Court grants bail. Will that grant of bail will not hit at the root because maintainability is at its root?"

To this, Teotia responded:

"Jail is a very bad thing. Every day counts. Your file says there is no material against me."

Earlier, Jahan had told the that that there is no iota of evidence to show her involvement in the Delhi Riots larger conspiracy case and that the prosecution has falsely implicated her in the matter.

It was also submitted that Jahan's case is on a better footing than the other co accused persons who have been granted bail in the matter.

Others who were charge-sheeted in FIR 59/2020 include Former AAP Councillor Tahir Hussain, Jamia Coordination Committee members Safoora Zargar, Meeran Haider and Shifa-Ur-Rehman, activist Khalid Saifi, Shadab Ahmed, Tasleem Ahmed, Salim Malik, Mohd Salim Khan and Athar Khan.

A supplementary chargesheet was thereafter filed in the case against former JNU student leader Umar Khalid and JNU student Sharjeel Imam.

The matter will now be heard on September 1.