2020 (6) TMI 821 - HC - Indian Laws

Seeking writ of habeas corpus (to produce the body before the court) for production of his sister - petitioner submits that despite Gulfisha Fatima being granted bail, she was illegally continued to be kept in custody - Learned ASJ extended the judicial remand custody of Gulfisha Fatima upto 25.06.2020, between the date of filing of this petition, and the date of return of the notice/ hearing of the petition - whether the said order has been passed by the learned ASJ-02 without jurisdiction? HELD THAT - The 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. 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. Thus, it is clear that apart from NIA, the other police establishments are equally competent to investigate cases under the UAPA. This position is also clear from Section 6(7) of NIA Act, which clears doubts, if any, by declaring that till the NIA takes over the investigation of the case, it shall be the duty of the officer-in-charge of the police station where the case is registered, to continue to investigate. 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 - thus, it is clear to us that Shri Dharmender Rana, ASJ-02 was competent to deal with bail application, as well as the aspect of remand of Ms. Gulfisha Fatima when he passed the orders on the application moved by the State to seek extension of judicial remand of Gulfisha Fatima, and remanded her to judicial custody till 25.06.2020 vide his order dated 28.05.2020. The present writ petition is not maintainable since the detenue Gulfisha Fatima is in judicial custody under orders passed by the learned ASJ-02, Shri Dharmender Rana who was competent to do so - Petition dismissed.

Summary

Issues Involved:
1. Legality of the continued detention of Gulfisha Fatima.
2. Jurisdiction and authority of the Additional Sessions Judge to extend judicial custody.
3. Application of the de facto doctrine.
4. Applicability of the NIA Act in the context of UAPA cases.

Detailed Analysis:

1. Legality of the Continued Detention of Gulfisha Fatima:
The petitioner sought a writ of habeas corpus for the release of Gulfisha Fatima, asserting that her continued detention was illegal due to the non-functioning of Special Courts under the NIA Act during the COVID-19 pandemic. The respondents argued that Gulfisha Fatima had been produced before competent courts, which duly passed orders extending her judicial custody. The court noted that a writ of habeas corpus would not lie where a person is under detention pursuant to orders passed by a court unless the judicial authority is a usurper of authority. The court found no merit in the petitioner's claim that the detention was illegal, as judicial remand custody was extended by a competent court.

2. Jurisdiction and Authority of the Additional Sessions Judge to Extend Judicial Custody:
The petitioner contended that the Additional Sessions Judge (ASJ-02) did not have jurisdiction to extend Gulfisha Fatima's judicial custody as he was not a designated Special Court under the NIA Act. The respondents countered that the District and Sessions Judge had authorized the ASJ-02 to handle cases under the UAPA due to the pandemic. The court held that the ASJ-02 was competent to extend the judicial remand as he acted under the authority vested in him by the District and Sessions Judge, in accordance with Section 10(3) of the Code of Criminal Procedure (CrPC). The court rejected the petitioner's argument, emphasizing that the ASJ-02 was not a usurper of authority and had acted within his jurisdiction.

3. Application of the De Facto Doctrine:
The court applied the de facto doctrine, which validates the acts of officers who perform their duties under color of lawful authority, even if their appointment is later found to be defective. The court cited the Supreme Court's decision in Gokaraju Rangaraju v. State of Andhra Pradesh to support this doctrine. The court concluded that even if there were any defects in the ASJ-02's authority, his orders were valid under the de facto doctrine, as he acted under the color of authority and public policy necessitated the validation of his acts to prevent confusion and disorder.

4. Applicability of the NIA Act in the Context of UAPA Cases:
The petitioner argued that only a Special Court designated under the NIA Act could extend Gulfisha Fatima's judicial custody. The respondents and the court clarified that the NIA Act does not mandate that all UAPA cases be investigated by the NIA or tried exclusively by Special Courts. The court noted that the UAPA allows other police establishments to investigate cases, and the trial of such cases does not necessarily have to proceed before a Special Court unless specifically assigned to the NIA by the Central Government. The court emphasized that the ASJ-02, being a Sessions Court, had the jurisdiction to handle the remand of Gulfisha Fatima.

Conclusion:
The court dismissed the petition, holding that Gulfisha Fatima's detention was lawful and her judicial custody had been validly extended by a competent court. The court affirmed the jurisdiction of the ASJ-02 to extend the judicial remand and applied the de facto doctrine to validate his orders. The petitioner's reliance on the NIA Act was found to be misplaced, and the court concluded that the present writ petition was not maintainable.