Sushree Mohanty
Allahabad High Court had last week allowed the State a week’s time to file documents in the form of counter affidavits for a the case with respect to the alleged arrest of three people who were detained when they were on the way to meet the family members of the Hathras gang-rape victim in the case of Atiq Ur Rehman And two others versus Territory of UP.
A Two-Judge bench comprising of of Justices Shamim Ahmed and Surya Prakash Kesarwani passed the judgement in the appeal filed by Atiq Rehman and two other persons who were detained alongside journalist Siddque Kappan by the Uttar Pradesh Police a year ago.
The court, in its order stated that, “Learned AGA prays for and is granted one week and no more time to enable the State-respondents to file supplementary counter affidavits to the supplementary affidavit. Petitioners shall have three days’ time thereafter to file supplementary rejoinder affidavit.”
During the past hearing, the State had told the Court that the petitioners would be permitted to meet their advocates in prison, as per the prison manual.
On October 5, 2020, when the Hathras gang-rape case occurred, these four individuals were detained by the Uttar Pradesh Police en route to Hathras.
The petitioners contested that they were ‘illegally’ arrested by the concerned officers, and following two days, they were taken to the Executive Magistrate, and not the Judicial Magistrate.
As of recent, Kappan’s case is moved under the purview of the Supreme Court, while the other three prisoners have moved toward the Allahabad High Court through this appeal.
The rejoinder recorded and filed by Rahman and two other before the High Court invalidates the contentions raised by the State advocating their detain in custody.
Defending their contentions, the petitioners allege that no legitimate process was followed during their arrest and after detaining them, the officers produced them before an ‘Executive Magistrate’ instead of a ‘Judicial Magistrate’
“After keeping the petitioners in custody, the entire day and overnight, and a large part of the next day, i.e., 06th October, they were produced before the Executive Magistrate (SDM, Maant, Mathura) who arbitrarily and illegally remanded the petitioners to judicial custody, purported to be in exercise of his powers u/S.167 of the Code of Criminal Procedure.”, read the report.
Additionally, it was presented that the applicants were not called upon to “show cause or execute any bond as required by law, in utter violation of the mandatory provisions of Code of Criminal Procedure, and were unlawfully and without jurisdiction remanded to judicial custody and sent to jail, initially, for fourteen days, which term has successively been getting extended.”
The State further submitted that the said investigation was lawful and that there is an ‘equal right’ conferred upon the State and the Central government in such matters.
“As regards the allegation as to “equal right” of the Central and State Governments, it is submitted that the power of State Government, in the matter of investigation of offences under the UAPA, is subservient to the power of the Central Government as is crystal clear from the mandatory provisions of Section 6 of the NIA Act. Thus, the ‘Equal-Right Theory’ of investigation or transfer of investigation from one agency to another, propounded in the para under reply, is legally untenable, unwarranted and misconceived. In view of the above, it is submitted that the investigation by the State Agency/Agencies is an abuse of the process of law and void, without authority of law and in legal parlance, it amounts to a fraud on the Statute (NIA Act).”, the state argued.
It was further submitted in the answer that the procedures for Kappan’s case moved before the Hon’ble Supreme Court does not bar the authority to hear an instant petition in the matter.
The State has been notified to issue the counter affidavits within seven days, after which the petitioners need to file the concerned rejoinder in three days’ time period. The matter will be taken up for further hearing on February 18, 2021
Senior Advocate Farman Naqvi and Advocate Shashwat Anand, appeared for the applicants while the State is being represented by Additional Advocate General Manish Goyal.