Habeas Corpus Plea in Allahabad HC to quash FIR against social activists booked under UAPA while on their way to meet Hathras victim's family

A petition has been filed before the Allahabad High Court seeking to quash proceedings initiated against two social activists who were apprehended by the Mathura Police while they were on their way to Hathras to meet with the bereaved family of the Hathras rape victim..The habeas corpus plea seeking the release of the activists prays for a direction to quash an order of the Chief Judicial Magistrate, Mathura which handed over petitioners to police custody..By way of interim relief, the plea also seeks a direction to release the petitioners on bail..The social activists/ petitioners are accused under Sections 153-A, 124-A, 295-A of the IPC, 1860, Sections 17 and 18 of Unlawful Activities (Prevention) Act, 1967 (UAPA), 1967, and Section 65, 72 and 75 of IT Act, 2000..Timeline of Events.The accused (petitioners 1and 3) being social activists, were going to Hathras to meet the family of the deceased gang-rape victim while the petitioner no. 2 was the cab driver ferrying them..The petitioners were apprehended on October 5 at about 04.50 PM by the Mathura Police invoking preventive powers under Sections 107, 116 and 151 of the CrPC..Thereafter, the Executive Magistrate (SDM, Maant, Mathura) passed an order sending the petitioners to jail under judicial custody for 14 days from October 6 to October 19..Subsequently, an FIR dated October 7 was lodged against them. They were produced in the Court of the CJM, Mathura, on the said date in the afternoon and were remanded to judicial custody for 14 days..On November 4, the Chief Judicial Magistrate, Mathura, handed them over to police custody from November 4 to 6 while acting on an application under Section 43D(2) of the UAPA for 10 days' police remand,.These actions of the executive authority are contended to be in sheer defiance of the settled law of the land, applicable to the instant case..It is stated in the petition that any offence under the UAPA is a Scheduled Offence under the National Investigation Act, 2008. Section 13(1) of the said Act categorically lays down that every Scheduled Offence under the 2008 Act, shall exclusively be triable by a Special Court..Furthermore, the Sections 2(h) and Section 22(2) of the 2008 Act make it clear that the offences under UAPA, 1967, fall in the exclusive triable domain of a Special Court, designated by the Central or the State Government by notification. in the absence of this, such offences may be triable by a Court of Sessions alone, states the plea..Hence, it is submitted by the petitioners that the CJM, Mathura has no jurisdiction either to try the matter or remand the petitioners to police custody. .It is contended that such an illegal exercise of power suffers from an inherent lack of jurisdiction. .As such, it is challenged as arbitrary, unwarranted, ultra vires the scheme of the 2008 NIA Act, void ab initio, violative of the personal liberty and the fundamental rights of the petitioners. On these grounds, it is contended that the detention of the activists is liable to be set aside. .The petition has been filed through Advocates Shashwat Anand, Sarveshwari Prasad and Rajesh Inamdar.