TMI Blog2020 (6) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates 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, 2008 (NIA Act) empowered to extend the judicial custody of persons charged under any provisions of the UAPA, (including sections 13/16/17/18 which have been invoked against Gulfisha Fatima), have not been holding sittings since 23.03.2020 owing to the suspended functioning of courts subordinate to this Court due to the COVID-19 pandemic, and the consequent lockdown measures imposed by the Union Government. The petitioner submits that as the Special Courts empowered to extend the judicial remand custody have not been sitting, the continued detention of Gulfisha Fatima in FIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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), GNCTD to the Deputy Commissioner of Police (Legal Cell), whereby it was informed that Mr. Tushar Mehta, learned Solicitor General; Ms. Maninder Acharya, learned ASG; Mr. Aman Lekhi, learned ASG; Mr. Amit Mahajan, learned Senior Standing Counsel; and Mr. Rajat Nair, Advocate were appointed as Special P.P./ Special Counsel to represent Delhi Police in the present case. Mr. Mehra submitted that the aforesaid law officers/ Special Counsels would be representing the respondents in the present case, since the approval of the GNCTD had been specifically obtained in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 controversy that arises for our consideration, we will also notice the legal position as it exists about which there is no dispute. 13. The respondents have stated in their response that Gulfisha Fatima, since the inception of her detention, has been produced before the Competent Court, which duly passed orders granting remand of Gulfisha Fatima. The submission of the respondents is that vide order dated 28.05.2020 passed by Ld. Additional Sessions Judge-02, Patiala House Court, New Delhi in case FIR No. 59/2020, PS Crime Branch, State vs. Khalid Ors., the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Habeas Corpus, the High Court shall examine the issue: whether the detention of the detenue is illegal on the date of the petition, if no further developments have taken place between the date of institution of the petition and the date of return/ hearing. However, where further developments have taken place, it is the date of return of the notice, or even the date of hearing on which the legality of the detention would be examined. In this regard, we may refer to two decisions by this Court. The first is R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial 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 from 23.05.2020 to 30.05.2020 for exercise of various jurisdictions in the New Delhi District. 2. In exercise of powers vested with the District Sessions Judge (New Delhi District) inter alia under Section 10(3) Code of Criminal Procedure 1973, as in force in Delhi, I hereby authorize the following Additional District Sessions Judges of New Delhi District to hear and dispose of fresh bail applications and pending bail applications pertaining to the New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 Orders passed by this Court, inter alia, with regard to the manner in which the remand of the under trials would be dealt with in the light of the Covid-19 pandemic. Reference has also been made to the order passed by the Supreme Court in suo moto proceedings in Writ Petition (C) No. 1/2020 on 23.03.2020 to submit that the detention of Gulfisha Fatima has continued under judicial orders. We do not consider it necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 as to the fact that the court of additional sessions judge, and the special court under MCOCA, are criminal courts and by virtue of their position they stand in subordination to the court of Sessions Judge. Such courts being criminal courts within the meaning of the expression used in Section 408 and Section 409 Cr.P.C., withdrawal of judicial business from one such criminal court and its transfer to anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 officer-incharge of the police station shall forward the report to the State Government forthwith. (2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 of justice, the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State. (3) The Supreme Court or the High Court, as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the following classes of criminal courts, namely: (i) Courts of Session; 14. The other classes of criminal courts enumerated thereunder are not relevant in this case and need not be extracted. 15. Section 14 of the Act says that: 14. For the purpose of providing for speedy trial, the State Government shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 said order is not in question before this Court and, therefore, it cannot be gone into these proceedings. 28. To explain the De facto doctrine, Mr. Lekhi has placed reliance on Gokaraju Rangaraju v. State of Andhra Pradesh (1981) 3 SCC 132. Mr. Lekhi has drawn our attention particularly to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oid. 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 collaterally. 13. In Black on Judgments it is said: A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no mere usurper but holds it under colour of lawful authority. And there can be no quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 (Cri) 475] . It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18-3-2018/19-3-2018 and decided by the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trusted 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) of section 8 of the Code, below the rank of an Assistant Commissioner of Police; (c) in any case not relatable to clause (a) or clause (b), below the rank of a Deputy Superintendent of Police o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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