[Hathras arrests] Allahabad High Court grants State one week to file supplementary counter affidavits

The Allahabad High Court last week granted the State no more than one week to file supplementary counter affidavits in a case regarding the detention of three persons who were arrested en route to meeting the family of the Hathras gang-rape victim [Atiq Ur Rehman And 2 Others v. State of UP]..A Division Bench of Justices Shamim Ahmed and Surya Prakash Kesarwani passed the order in the petition filed by Atiq Rehman and two others who were arrested along with journalist Siddque Kappan by the Uttar Pradesh Police last year..The Court ordered,“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 previous hearing, the State informed the Court that the petitioners would be allowed to meet their lawyers in jail, in accordance with the jail manual..On October 5, 2020, when the Hathras gang-rape incident took place, these four people were arrested by the Uttar Pradesh Police on their way to Hathras..It was contended by the petitioners that they were ‘illegally’ detained by the authorities, and after two days, they were taken to the Executive Magistrate, and not the Judicial Magistrate. At present, Kappan’s case is before the Supreme Court, while the other three detainees have approached the Allahabad High Court through this petition..The rejoinder filed by Rahman and two other before the High Court rebuts the contentions raised by the State justifying their arrest..Arrest was illegalThe petitioners contend that no legal procedure was followed during their arrest. When the arrest was made, the accused were placed before an ‘Executive Magistrate’ and not 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 CrPC.”Furthermore, it was submitted that the petitioners were not called upon to “show cause or execute any bond as required by law, in utter violation of the mandatory provisions of CrPC, and were unlawfully and without jurisdiction remanded to judicial custody and sent to jail, initially, for 14 days, which term has successively been getting extended.”.Investigation by State agencies is an abuse of powerThe State had contended that the concerned investigation was legal and that there was an ‘equal right’ vested in the State and the Central government in such matters. The petitioners counter,“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).”.Kappan’s case does not restrict the current petitionIt was further submitted in the reply that the proceedings in Kappan's case before the Supreme Court does not create any bar in the hearing of the instant petition..Plea in Supreme Court seeks urgent interim bail of 5 days for Siddique Kappan to his meet 90-year-old ailing mother.The State has been directed to file the concerned counters within a week, after which the petitioners have to file the concerned rejoinder within three days' time. The matter will be taken up next on February 18..Senior Advocate Farman Naqvi, assisted by Advocate Shashwat Anand, appeared for the petitioners. Additional Advocate General Manish Goyal is representing the State..[Read Order]