UAPA -What Difference Will It Make If Accused Files Bail Application Under Section 439 or 437? Jamia Alumni President Argues Before Delhi Court

A Delhi Court on Wednesday heard President of Jamia Millia Islamia Alumni Association, Shifa-Ur-Rehman who argued on the maintainability of bail plea under the provisions of UAPA in connection with the Delhi riots larger conspiracy case (FIR 59/2020).

Advocate Abhishek Singh appearing for Rehman submitted before Additional Sessions Judge Amitabh Rawat that UAPA provides for the source of the power of a Special Court to deal with an application for Regular Bail and that sec. 43(D) 5 of UAPA is not the source of power to grant bail but only a restriction on the power to grant bail. 

It is also Rehman's case that the power of the Special Court to grant regular bail can be traced back only to Section 439 and not Section 437 CrPC.

This comes days after Special Public Prosecutor Amit Prasad, while objecting to the maintainability of bail plea filed by co-accused Ishrat Jahan in the case, submitted that application filed under Section 437 must have been moved in place of Section 439 of CrPC, primarily because 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 Section 437 of CrPC.

In furtherance of this, the bail application under Section 439 CrPC was withdrawn by co accused Umar Khalid and Khalif Saifi who withdrew their bail applications under sec. 439 CrPC and filed another applications under Section 437 CrPC. 

"As of today, there is ambiguity. Somebody may take a view that it's not maintainable under sec. 439 or 437 CrPC. On substance, what difference will it make? More so, prejudice if any, is caused to accused persons because they are in custody," Singh argued before the Court.

Singh started his submissions by addressing a judgment of Supreme Court titled State of Andhra Pradesh Vs Mohd Hussain (2014) 1 SCC 258 which was relied by the Prosecution. In the said judgment it was observed "where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a bench of two Judges of the High Court."

On this, Singh submitted that there was not a single line in the said judgment which says that Special Court will not have a power under sec. 439 CrPC to deal with the bail application.

"The exclusion is the exclusion of High Court, as a court of concurrent Jurisdiciton to deal with application of bail under sec. 439 CrPC. This can't be stressed to say that sec. 439 CrPC will not apply," Singh submitted.

It was also argued that the prosecution cannot selectively read specific lines of the judgment and make a meaning out of the same.

Relying on another judgment delivered by the Kerala High Court titled Mammunhi Thalangadi Mahamood v. State of Kerala 2013 SCC OnLine Ker 23516, it was submitted that the power of the Special Court to grant regular bail can be traced back only to Section 439 and not Section 437 CrPC.

Singh also added that the nomenclature of an application does not make any difference and that it is a well-settled principle of Law that wrong mentioning or non-mentioning of provisions of Law would not be relevant if the Court has requisite Jurisdiction to pass an order.  

Stating that the issue was completely academic, Singh argued:

"It's undisputed that your lordship has the special Jurisdiciton to grant or not grant a bail. It won't make a distinction at all if application under sec. 437 or 439 CrPC is filed."

"Assuming if it was to be held that special court cannot exercise power under sec. 439 CrPC, there is no need to ask a party to withdraw it and refile it. Your lords can treat it under sec. 437 CrPC," he added.

Hearing the said submissions, the judge remarked thus:

"There is no finding of the Court. It's just an objection raised by prosecution. In fact, it's an anticipatory objection raised by prosecution."

Accordingly, the matter was adjourned to September 21.

Previously, Rehman had argued that merely being a protestor is not an offence and that every person is entitled to have his or her own opinion.

It was also submitted that the grant of sanction to prosecute him under UAPA in the Delhi Riots larger conspiracy case was 'pre determined' and that the authorities acted under the dictation of somebody while doing so.

He also argued that while the police alleged that Rehman, being Alumni of the Alumni Association of Jamia Milia Islamia (AAJMI), provided support to the protestors, none of the other office-bearers of the association had been made an accused.

FIR 59/2020 contains stringent charges including Sections 13, 16, 17, 18 of the UAPA, Sections 25 and 27 of the Arms Act and Sections 3 and 4 of the Prevention of Damage to Public Property Act,1984 and other offences under Indian Penal Code, 1860.

Appearance: Advocates Abhishek Singh along with Advocate Amit Bhalla, Counsel for Shifa Ur Rehman