Former Congress councillor Ishrat Jahan, accused in an Unlawful Activities (Prevention) Act case in connection with Northeast Delhi riots, has through her lawyer told a special court that the prosecution was deriving “sadistic pleasure” by increasing the duration of her incarceration by arguing that her bail application was filed under the wrong provisions.
Additional Public Prosecutor Amit Prasad argued before Additional Sessions Judge Amitabh Rawat that Jahan’s bail application was not maintainable. The court adjourned the matter till September 1. Jahan’s bail arguments have been pending before a special court for over six months.
Prasad had argued that Jahan’s bail was filed under section 439 (Special powers of High Court or Court of Session regarding bail) of the CrPC whereas the special court can only hear cases filed under section 437 CrPC, which deals with the provisions of when bail may be taken in case of a non-bailable offence.
“As designated Court, an application under section 439 is not maintainable before this Court. All the rigours of section 437 will apply the moment the provision applies to a Court,” Prasad told the court.
Advocate Pradeep Teotia, who appeared on behalf of Jahan, told the court had heard bail applications under section 439 CrPC and said that the prosecution knew it beforehand that he filed an application under this provision and did not point it out earlier.
“Rule of practice and Rule of law are different. The prosecution just want to derive sadistic pleasure that I will continue to be in custody? This is not a big thing. I can file a new application. The court has already heard the application on merits.
The court asked Prasad if he files a new plea won’t the arguments on merit stay the same.
Prasad told the court, “No, the arguments will change… when there is a prescribed way, they have to follow that… By invoking a wrong provision of law, they can’t seek remedy. If the application itself is not maintainable what are we arguing on then?”
Teotia told the court, “This you already knew. This is torture on me also. After taking so much of Court’s time…. Then one should also not seeking bail orally. I don’t have any words. Someone has been in jail, Court can’t see if prosecution and defence are fighting like cat and mouse.”
Prasad told the court, “Assuming application has made a case of bail and court grants bail, would that grant of bail not hit at the root of bail? The plea on the basis of which the bail is granted in itself is not maintainable. The legal bar/defect is there.”
Teotia said that as officers of the court they ought to be fair.
“Suddenly you are raising the issue of maintainability after 6 months. Case should be adjudicated fairly. Hiding it for 6 months and then raising it, is wastage of judicial time,” Teotia told the court.
This story first appeared on indianexpress.com