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Seeking bail in the Delhi riots larger conspiracy case, accused and President of the Alumni Association of the Jamia Milia Islamia (AAJMI) Shifa Ur Rehman today argued before the court against the state's earlier objections to the maintainability of bail plea before the Special Court under Section 439 of Code of Criminal Procedure (CrPC).

The matter was listed before the court of Additional Sessions Judge Amitabh Rawat. 

Relying upon the same Apex Court judgment which the state counsel had earlier referred to while questioning maintainability of the bail plea, Rehman's counsel Abhishek Singh stated that in 'State vs. Mohammad Hussain' the ultimate conclusion was that where the NI Act applies, the original bail application shall lie only before the Special Court and appeal against the order, therein, shall lie only before the High Court.

Therefore, he contended that under this judgment he could nowhere find that jurisdiction of the Special Court had been excluded to hear the original bail plea under Section 439 of CrPC. 

He said that the state merely cannot take a sentence out of a judgment and read it before the court, without its context, to prove the validity of its objection to the maintainability of the bail plea. 

He added that the issue that arose in this case was the interpretation of Section 21 of the National Investigation Agency Act, 2008 (the NIA Act). He further said that the original jurisdiction of the High Court was excluded to hear bail plea under Section 439 CrPC only because otherwise it would have clashed with its appellate jurisdiction. 

Adv. Singh summed up his submission as that, "Section 21 of NI Act only excludes the original jurisdiction of the High Court to consider a bail plea under Section 439 CrPC, it nowhere mentions that the original jurisdiction of a Special Court to hear bail plea under Section 439 is ousted."

He said that by the virtue of Section 16(3) of the NIA Act, a Special Court has been rendered upon with the power of a Court of Sessions, therefore the bail before the present court is maintainable. 

Therefore, contesting against the state's reading of the same judgment, he contended before the court that the bail application has to be filed only under Section 439 CrPC, not under Section 437. 

He also referred to Supreme Court's judgment in Usmanbhai Dawoodbhai Menon & Ors. Vs the State of Gujarat to further strengthen his contention that even if the exclusion as to consider the bail plea under Section 439 CrPC had been made, it was made only regarding the High Court, not the Special Court. 

He added that Kerala High Court had also interpreted the same judgment in a similar manner laying down that the exclusion was made only in relation to the original jurisdiction of the High Cort to consider bail under Section 439. 

However, the court highlighted the fact that in other cases related to the same FIR, i.e. 59/2020 the maintainability of the bail plea under Section 439 CrPC was challenged and before the court could reach a conclusion, few of the pleas were already withdrawn and fresh bail pleas under Section 437 CrPC had been filed. 

Therefore, allowing Singh to file a short note regarding his contentions, the court adjourned the matter till Sep 21. 

In the previous hearing, Singh had also made arguments on principles of parity.

He argued that the power to grant sanction for prosecution under Section 45 of Unlawful Activities (Prevention) Act requires independent review. However, this exercise was not carried out by the Centre.

Singh had argued that after the Centre granted sanction to probe the matter for completion of the exercise as contemplated under law, however, the probe was not complete as prosecution made an application for extension of investigation on Aug 4, 2020.

Hence on Jul 31, 2020, if the investigation was not complete, the independent review of evidence gathered could not have taken place, Singh had submitted.

It had also been argued that no other person from the Alumni Association has been made an accused in the present case which was against the rule of parity.

Singh had also raised objections on prosecution using the words “protestors” and “rioters” interchangeably. Singh argued that if all the protestors were rioters, then all should have been booked like Rehman.

“There is a difference between protestors and rioters. Protest is a fundamental right. Here I am arguing why he is placed in the bracket of rioters and not protestors. He paid some amount for protestors but does that amount to an offence under UAPA”, Singh had said.

“If certain section of society is aggrieved by a piece of legislation and they protest against it, that is not a crime. They can certainly protest, he had added. 

Case Title: Shifa-Ur- Rehman vs NCT Delhi