Delhi Police has told the high court that a plea questioning the legality of the arrest of a woman under an anti-terror law in connection with protests here against the CAA and NRC was not maintainable as she was always in lawful custody.
The submission was made before a bench of justices Vipin Sanghi and Rajnish Bhatnagar by central government's standing counsel Amit Mahajan, who has been appointed the special counsel to represent the police in the instant matter.
The court took on record the reply filed by Delhi Police and listed the matter for hearing on June 8.
The appointment of Mahajan as special counsel in the matter was opposed by Delhi government's standing counsel Rahul Mehra on the last date of hearing on May 20 and the bench had said that it would hear arguments on May 29.
Subsequently, the court on Friday heard arguments on who would represent police in the instant matter.
Mehra told the bench that as per law laid down by the high court and the Supreme Court, the Lieutenant Governor can appoint special public prosecutors or special counsel only on the aid and advice of the council of ministers of the Delhi government.
Mehra said in the instant case, Delhi Home Minister Satyendra Jain has endorsed the appointment of Solicitor General Tushar Mehta, Additional Solicitor General Maninder Acharya, Additional Solicitor General Aman Lekhi, central government standing counsel Amit Mahajan and advocate Rajat Nair as special public prosecutor or special counsel for the police.
Mahajan told the court that Delhi Police has obtained Jain's approval so as to avoid the controversy of who was representing the agency in the instant case.
After hearing both lawyers, the bench said, "The controversy taken note of by us in our previous order, and taken note of aforesaid, does not survive for determination in the present case.
"We hope and expect that such like issues would be similarly resolved in other cases as well, so that the focus of the court remains on determination of the merits of the disputes before it, rather than on such like issues."
The observation by the court came while hearing the habeas corpus plea moved by the woman's brother alleging that she was being illegally detained by the police as she has not been produced before a special judge for extension of her custody.
The police, in its affidavit filed through Mahajan, has contended that the custody of the woman was lawful as she has always been produced before the lower court which was authorised by the high court to pass remand orders during the period of lockdown when the normal functioning of subordinate judiciary was suspended.
The woman was arrested on April 9 for allegedly being involved in an anti-CAA and NRC protest at Jafrabad in North East Delhi.
She was granted bail on May 13 but was not released from jail and the family learnt that another FIR has been lodged against her for an alleged anti-national activity under the Unlawful Activities Prevention Act (UAPA), but she was not produced before the special judge as mandated under the NIA Act.
The petition said as the woman was charged under the UAPA, only a special court constituted and empowered under the National Investigation Agency (NIA) Act can extend her custody.
"The special courts have not been functioning due to the suspension of normal court functioning during the lockdown period and risks associated with COVID-19 pandemic. Consequently, the custody of the sister of the petitioner is without authority of law, and illegal," the plea contended.
The plea sought direction to authorities to produce the woman before the high court and to satisfy the court that her custody was not illegal. It also sought her release from the jail.
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