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2020 (6) TMI 821
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....olitan 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 under the National Investigation Agency Act, 200....
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....espondents 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 communication dated 29.05.2020 issued by the Deputy Secretary (Home), GN....
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....ll 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 Court on 19/20th May, 2020. To appreciate the contours of the controve....
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.... 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 disputed by learned counsels, and it is an equally well settled proposition of law, that while dealing with a writ petition seeking issuance of writ of ....
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.... 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 and in continuation of this Office earlier order No. 6364-6454/D&SJ/ NDD/2020 dated 16.05.2020, the roster of the following Judicial Officers shall remain effective....
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....erty 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 Superintendent, Mandoli Jail, Delhi with a request that the provisions of the said Act be added in the warrant. 18. The respondents have thereafter proceeded to refer to the various Administrative Orde....
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....il 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 sessions is conferred with the powers of withdrawal or transfer of cases and appeals from one criminal court to another in the same sessions division in terms of Section 408 and 409 Cr.P.C. There can be no dispute ....
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....rther 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 Act is adverted to by him, and the same reads as follows: "6. Investigation of Scheduled Offences.-(1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the o....
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....as 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 have a fair, impartial or speedy trial; or (b) it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or (c) it is not otherwise in the interests o....
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....r 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 Special Courts constituted under the said Act and observed: "13. So the first aspect to be considered is whether the Special Court is a Court of Session. Chapter II of the Code deals with "Constitution of Criminal Courts and Offices." The section which falls thereunder says that: "6. ... there shall be, in every State, th....
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....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 22.05.2020 by resort to Section 10(3) of the Code. He submits that the de facto doctrine would apply in the facts and circumstances of the case. He also points out that the petitioner has not challenged the order passed by the learned ASJ-02 dated 28.05.2020 and, therefore, this Court has to proceed on the basis that the said order is valid and legal. Validity and legality of the....
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....o 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 claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is supposed to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned....
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....he 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 judge or officer not legally competent may acquire validity." 17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have th....
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....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 as to whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in Saurabh Kumar v. Jailor, Koneila Jail [Saurabh Kumar v. Jailor, Koneila Jail, (2014) 13 SCC 436 : (2014) 5 SCC (Cri) 702] and Manubhai Ratilal Patel v. State of Gujarat [Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 : (2013) 1 SCC (....
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....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 under Chapters IV and VI.- Notwithstanding anything contained in the Code, no police officer,- (a) in the case of the Delhi Special Police Establishment, constituted under sub‑section (1) of section 2 of the Delhi Special Police Establishment Act, 1946, (25 of 1946), below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank; (b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area notified as such under sub‑section (1)....
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..... 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 squarely settled by the decision in Rambeer Shokeen (supra), which has been affirmed by the Supreme Court. 39. Pertinently, the respondents have stated in their response that Shri Dharmender Rana, ASJ-02, New Delhi, was designated to deal with cases under the UAPA. That is why intimation of adding Sections under the UAPA to the FIR No 59/2020 was sent to Shri Dharmender Rana, ASJ-02, this statement has not been controverted by the petitioner. 40. In the light of the aforesaid discussion, it is clear to us that Shri Dharmender Rana, ASJ-02 was competent to deal w....