TaxTMI 
TaxTMI 
2020 (6) TMI 821
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....No. 48/2020 was dismissed by the Ld. Metropolitan Magistrate/Duty M.M., Shahdara District, vide order dated 03.05.2020 on various grounds, including on the ground that she was involved in another case, being FIR No. 59/2020, registered under Sections 13/16/17/18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) - Section 120B read with Sections302/307/353/186/212/395/427/435/436/452/454/109/114/147/148/1 24A/153A of the Indian Penal Code, Sections 3 & 4 of the Prevention of Damage to Public Property Act, and Sections 25/27 of the Arms Act, and which is being investigated by the Crime Branch. 3. The petitioner states that aggrieved by the dismissal of the bail application, his sister approached the learned Ld. Sessions Judge under Section 439 of the Cr.P.C. Vide order dated 13.05.2020, the learned Sessions Judge, Shahdara District allowed the bail application of Gulfisha Fatima in FIR No. 48/2020. The petitioner submits that despite Gulfisha Fatima being granted bail in FIR 48/2020, she was illegally continued to be kept in custody on account of the registered FIR No. 59/2020, as aforesaid, by the Crime Branch. 4. The petitioner submits that Special Courts constituted u....
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....th regard to their respective authority to represent the respondents in the matter. List on 29.05.2020." 7. On 29.05.2020, Mr. Mehra, learned Standing Counsel for the GNCTD submitted that as per the law settled by this Court and the Supreme Court, it is only on the aid and advice of the Council of Ministers of the GNCTD, that the power under Section 24(8) Cr.P.C. to appoint the Special P.P./ Special Counsel could be exercised by the Hon'ble Lieutenant Governor, and that the Hon'ble Lieutenant Governor has no independent power to make such appointments. He also stated that Delhi Police had accepted the said position, and had applied for appointment of Special P.P./ Special Counsel to the Ministry of Home, GNCTD, and that the Home Minister in the GNCTD had issued appropriate orders in that regard. 8. Mr. Mehra forwarded the communication dated 28.05.2020 addressed to Mr. Satyendra Jain, Hon'ble Minister of Home, GNCTD by Mr. Rajesh Deo, DCP (Legal Cell), PHQ, Delhi, which also contained the endorsement made by the Hon'ble Minister, approving the appointment of Special P.P./ Special Counsel to represent the respondents in the present case. He also forwarded the communicati....
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.... (u) of Section 2 of the Code, and the provisions of the Code shall have effect accordingly. Section 2(u) of the Code defines "Public Prosecutors" to mean any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor. 11. We do not find any merit whatsoever in this submission of Mr. Pracha. This is for the reason that we are dealing with a writ petition under Article 226 of the Constitution of India, wherein the petitioner seeks a writ of Habeas Corpus. The High Court is not a Special Court designated by the Central Government under Section 11 of the NIA Act and, in the present case, the Central Government has not, in terms of Section 6(4) of the NIA Act, directed the NIA to investigate the offences alleged against Gulfisha Fatima. Therefore, in our view, advertence to Section 2(e) and Section 15 of the NIA Act is completely misplaced. Accordingly, we reject this submission of Mr. Pracha. 12. Before we proceed to notice the next submission of Mr. Pracha, we may take note of the relevant factual developments which have taken place after the filing of the present petition, and after issuance of notice in the petition by this C....
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....that the judicial remand of the accused Gulfisha Khatoon be extended for a period of 30 days. As per the provisions of Section 167 Cr.P.C when the investigation cannot be completed within 24 hours and the accusation or information well founded, the accused can be remanded to JC/PC, subject to the statutory condition mentioned therein. In view of the same, accused Gulfisha Khatoon is remanded to judicial custody till 25.06.2020. At this stage, Ld. Defence Counsel has moved separate application praying for signature of the undersigned upon the case diary. In view of the same, the case diary is signed by the undersigned. A copy of the order be given dasti to the concerned parties." (emphasis supplied) 14. There is no dispute on either side, and it is also well settled law that a writ of Habeas Corpus would not lie where a person is under detention/ arrest in pursuance of orders passed by a Court. A person who is in custody - either in police remand, or in judicial remand, cannot maintain a writ of Habeas Corpus unless the judicial authority which has remanded the detenue to one or the other kind of remand, is a usurper of authority. It is also not dispute....
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....ts that on account of imposition of the lockdown in the wake of COVID-19 Pandemic since 23.03.2020, the designated Special Court under the NIA Act is not functional. Mr. Pracha submits that Shri Dharmendra Rana, learned ASJ-02 purported to act on the basis of an administrative order issued by the District and Sessions Judge, New Delhi District, Patiala House Court, whereby the learned District and Sessions Judge fixed the Roster of learned Judges to hear urgent matters. He submits that the said administrative order issued by the learned ASJ could not vest jurisdiction upon the learned ASJ-02 to exercise the jurisdiction vested in the Special Court, which jurisdiction could only be vested by the Central Government under Section 11 of the NIA Act. In this regard, Mr. Pracha has drawn our attention to the order dated 22.05.2020 issued by the learned District and Sessions Judge, New Delhi District, Patiala House Court, New Delhi. The said order, insofar as it is relevant, is extracted herein below: "OFFICE OF THE DISTRICT & SESSIONS JUDGE: PATIALA HOUSE COURT: NEW DELHI DISTRICT: NEW DELHI ORDER In pursuance to High Court order No. R305/RG/DHC/2020 dated 21.05.2020 an....
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....o. 59/2020 P.S. Crime Branch under section 120B r/w 124A, 153A, 302, 307, 353, 186, 212, 395, 427, 435, 436, 452, 454, 109, 114, 147, 148, 149, 34 IPC and 3 & 4 of Prevention of Damage of Public Property Act 1984, 25/27 Arms Act after filling an application for permission for interrogation/ arrest before the learned Duty MM, Mandoli Jail. After formal arrest, she was produced before the learned Duty MM, Mandoli Jail and an application for 10 days police custody remand was moved. The learned Duty MM, Mandoli Jail granted 5 days police custody remand till 16.04.2020, and directed that the accused be produced before learned Duty MM on 16.04.2020. On 16.04.2020, Gulfisha Fatima was sent to judicial custody till 30.04.2020. On 19.04.2020, Sections 13, 16, 17 & 18 of UAPA were added in case FIR No. 59/2020. An intimation with regard to invocation of the said provisions of the UAPA was given in writing on 20.04.2020 to Shri Dharmender Rana, Learned Additional Session Judge, Designated Court for UAPA, Patiala House Courts, New Delhi by the I.O. On 20.04.2020, an intimation with respect to invocation of the provisions of the UAPA against the accused Gulfisha Fatima was also given to the Sup....
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....e administrative order, as issued by him on 22.05.2020 whereby the learned ASJ-02, New Delhi, Shri Dharmender Rana was assigned the task of hearing and disposing of fresh bail applications and pending bail applications pertaining to the New Delhi District, Sessions Division, inter alia, in respect of cases under the UAPA. As noticed above, Shri Dharmender Rana, ASJ-02, New Delhi District was also empowered to deal with the entire remand work pertaining to the UAPA and other laws. In this regard, Mr. Lekhi has drawn our attention to a decision by a learned Single Judge of this Court in Rambeer Shokeen v. State (NCT of Delhi), 2017 SCC Online Del 8504 wherein this Court was dealing with a case under the MCOCA. This judgment of Single Bench of this Court was further affirmed by the Supreme Court vide their order dated 31.01.2018, reported as (2018) 4 SCC 405. The learned Single Judge observed in this decision as follows: "46. An officer of Delhi Higher Judicial Service is selected and appointed by the High Court to preside over the court of Sessions Judge, such appointment being under Section 9(2) Cr.P.C. By virtue of such appointment, the presiding judge of the court of sess....
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....ne manner. He submits that the detenue cannot take advantage of the situation to seek release from custody when her judicial custody has been extended by a Judicial Officer, who is competent to do so. 21. Mr. Lekhi further submits that the reference made by Mr. Pracha to the NIA Act is completely irrelevant. He submits that the object of the NIA Act - which is evident from its long title is "to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto". He submits that the National Investigation Agency does not per se get the power or jurisdiction to investigate all cases registered under one or the other of the enactments contained in the Schedule to the said Act. He submits that the UAPA is only one of the several enactments enlisted in the Schedule to the NIA Act. Section 6 of the NIA Ac....
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....t only the Central Government is entitled to determine whether a given Scheduled Offence should be investigated by the NIA. He points out that, in the present case, though provisions of UAPA - a scheduled enactment, have been invoked against, inter alia, Gulfisha Fatima, the case has not been assigned to the NIA for investigation by the Central Government. The officer-in-charge of the police station where the case is registered is, therefore, obliged to continue with the investigation of the case. Thus, he submits that reference to provisions of NIA Act is completely misplaced. The submission of Mr. Pracha that only the NIA designated Court could have remanded Gulfisha Fatima to judicial Custody is seriously disputed by Mr. Lekhi. Our attention has also been drawn to Section 13 of the NIA Act, which reads as follows: "13. Jurisdiction of Special Courts.-(1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed. (2) If, having regard to the exigencies of the situation prevailing in a State if,- (a) it is not possible to hav....
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....Section 16 of the NIA Act, which, inter alia, provides "A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts" She submits that in the facts of the present case, neither a complaint has been submitted, nor a police report has been submitted before the Special Court. If, and only if, the case is entrusted to the NIA for investigation by the Central Government, the question of either filing a complaint or a police report before the Special Court would arise. Even in that situation, the Special Court would come into the picture only upon it taking cognizance of the complaint or police report, and not before that. 25. Learned counsel, in this regard, has drawn our attention to Vidyadharan v. State of Kerala (2004) 1 SCC 215. This was a case under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. For trial of offences under this Act, Special Courts are constituted, like for the trial of scheduled offences entrusted to, and investigated by the NIA. The Supreme Court examined the character of the Spec....
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....e of provisions for "trial before a Court of Session". (emphasis supplied) 26. The submission of learned counsels for the respondents is that it is only the trial of the scheduled offence(s) entrusted to, and investigated by the NIA, which are required to be conducted by the Special Court, and so far as the aspect of remand to police/ judicial custody is concerned, the same could be ordered by any Court of Sessions - even in a case entrusted to and investigated by the NIA. 27. The further submission of Mr. Lekhi is that, even if one were to assume that there was some defect inasmuch, as, the detenue Gulfisha Fatima was not produced before the "Special Court" for the purpose of extending her remand - as claimed by the petitioner, but was produced before the learned ASJ-02- Shri Dharmender Rana - who extended her judicial remand custody till 25.06.2020, the said order passed by the learned ASJ-02 cannot be described as non est. He submits that the Court of the learned ASJ-02 is also a Sessions Court, and he has acted under the colour of authority vested in him by an order passed by the learned District and Sessions Judge, New Delhi District, Patiala House Court, dated ....
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....e officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence. No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he....
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....a High Court consisting of P. Govindan Nair, K.K. Mathew and T.S. Krishna-moorthy Iyer, JJ., said about the de facto doctrine: "This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid." 16. In the judgment under appeal Kuppuswami and Muktadar, JJ., observed: "Logically speaking if a person who has no authority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be considered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at the later date. Courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a ju....
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....ubhai Ratilal Patel v. State of Gujarat and Ors., (2013) 1 SCC 314. In particular, he has referred to the following observation made in paragraph 31 of the report: "31. ....... It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B. Ramachandra Rao [(1972) 3 SCC 256 : 1972 SCC (Cri) 481 : AIR 1971 SC 2197] and Kanu Sanyal [(1974) 4 SCC 141 : 1974 SCC (Cri) 280] , the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted........" 31. He also relies upon State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, and in particular, he has drawn our attention to paragraph 10, which reads as follows: "10. The question ....
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....e submission of Mr. Pracha that the learned ASJ-02, Shri Dharmender Rana was not competent, and did not have the jurisdiction to direct extension of judicial remand of Gulfisha Fatima vide his order dated 28.05.2020 upto 25.06.2020 is completely misplaced and we reject the same. 34. Reliance placed by Mr. Pracha on the NIA Act is completely misleading and is a red herring. As we have noticed hereinabove, the NIA Act primarily is an Act to constitute the National Investigation Agency, and to provide for trial of cases entrusted to and investigated by the NIA in respect of scheduled offences, by a Special Court. In the present case, it is not even the petitioner's submission that the Central Government has entrusted the investigation of the case registered against the detenue Gulfisha Fatima under UAPA to the NIA. The UAPA does not state that all cases under the said act necessarily have to be investigated by the NIA. Section 43 of the UAPA prescribes the ranks of Police Officers competent to investigate offences under Chapters IV and VI of the said Act by different Police Organisations. The said section reads as follows: "43. Officers competent to investigate offences un....
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....t." 37. Therefore, Section 45 only lays down the restriction of grant of prior sanction by the Central Government, or the State Government, as the case may be. It does not state that only a Special Court constituted under the NIA Act would have jurisdiction to try offences under the UAPA. Just because UAPA is one of the enlisted enactments in the Schedule to the NIA Act, it does not follow that every offence under the UAPA has necessarily to be investigated by the NIA, and that the trial of such case necessarily has to proceed before the Special Court. 38. There is no dispute about the fact that Shri Dharmender Rana, ASJ02, is a court of Sessions. He had been entrusted by the District and Sessions Judge, New Delhi District, New Delhi with the task of hearing and disposing of fresh bail applications and pending bail applications, and also authorised to deal with the entire remand work pertaining to, inter alia, UAPA. The learned District and Sessions Judge acted completely within the scope of the authority vested in him under Section 10(3) of the Code, to assign work to the Additional District and Session Judges serving in the New Delhi District, and this position has been squ....