Delhi High Court: A petition was filed seeking to direct the special designated NIA court to expeditiously pronounce the Order on the second regular bail application of the Petitioner dated 20-08-2024 in case arising out of FIR dated 30-05-2017 and set aside the order dated 23-12-2024 passed by Trial Court and to treat the instant petition as the second bail application, and adjudicate and grant regular bail to the Petitioner who has been arraigned as Accused 18. Vikas Mahajan, J., granted custody parole to the petitioner for two days i.e. on 11-02-2025 and 13-02-2025 to attend the ongoing Parliamentary Session subject to certain conditions.
The present petitioner was arrested on 09-08-2019 in connection with the case registered by NIA under Sections 120B, 121, 121A IPC and Sections 13, 16, 17, 18, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967. The case of the prosecution is that based on credible information that Hafiz Muhammad Saeed, Amir of Jammat-ud-Dawah and secessionist and separatist leaders, including members / cadres of the Hurriyat Conference, have been acting in connivance with active militants of proscribed terrorist organizations viz. Hizb-ul-Mujahideen (HM), Dukhtaran-e-Millat, Lashkare-Taiba (LeT), and other terrorist organizations / associations / gangs for raising, receiving and collecting funds domestically and abroad through various illegal channels, including hawala, for funding separatist and terrorist activities in Jammu and Kashmir.
The investigation revealed that various terrorist organizations viz. Jammu Kashmir Liberal Front (JKLF), HM, LeT, in connivance with various secessionist groups particularly the APHC / Hurriyat Conference and its constituents funded by Pakistan and its agencies and terror groups have entered a criminal conspiracy to wage war against the Government of India. Hurriyat leaders and their supporters were and are following the ideology of ‘freedom’ i.e. secession of the State of Jammu & Kashmir from the Union of India. During the course of investigation, the role of the petitioner surfaced, and it transpired that he was also involved in the crime and, accordingly, he was arraigned as an accused and arrested.
The filing of present petition has been necessitated by the fact that although the petitioner’s bail application was considered and heard by the Special Designated NIA Court but the order thereon was not pronounced by the said court assigning the reason that albeit the court is a Special Designated NIA Court, however, it does not have jurisdiction to try the said criminal case, as it is only the Special Designated Court of MPs/MLAs which has the jurisdiction to try the same.
The short question in the present matter is whether the petitioner/applicant is to be granted custody parole to enable him to attend the Parliament session.
The Court noted that the Legislators or the Parliamentarians have no statutory right to participate in the session of the House so long as they are under lawful detention. Since August, 2024 the application(s) of the applicant filed before the Special Court (NIA), seeking regular or interim bail, could not be taken to their logical end only because the administrative order designating the said Special Court (NIA) as MP/MLA court is under consideration.
The Court placed reliance on Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509 wherein it was held that “access to justice is a fundamental right guaranteed under Articles 14 and 21 of the Constitution of India. If access to justice is a facet of fundamental rights, then non-availability of forum for disposal of applicant’s application for bail, either interim or regular, renders the petitioner remediless for the time being, and concomitantly deprives him of the aforesaid right. Thus, in the peculiar facts and circumstances of the present case and to balance the competing interests and rights, this Court would not completely negate petitioner’s plea for custody parole to attend the Parliamentary session.”
Thus, custody parole is granted to the petitioner for two days i.e. on 11-02-2025 and 13-02-2025 to attend the ongoing Parliamentary Session. The Court directed that the Director General (Prisons) Delhi, in consultation with the Secretary General, Lok Sabha, shall make the requisite arrangements for the applicant/petitioner to attend the Parliamentary Sessions on 11-02-2025 and 13-02-2025, subject to the following conditions:
-
The petitioner is granted custody parole for the duration of the sessions on each of the two days, i.e. 11-02-2025 and 13-02-2025;
-
In case, the sessions go beyond the official jail hours, the Jail Authorities are directed to allow the petitioner to surrender after such official hours;
-
On both the days, the petitioner would be in the custody of the Jail Authorities with adequate police security and protection to and from, as well as at the concerned location of the Parliamentary Sessions. Such security and protection shall be ensured by the Director General (Prisons) in consultation with the Secretary General, Lok Sabha, as per the condition(s)/restriction(s) imposed by the Secretary General, Lok Sabha;
-
The petitioner shall not use any phone, mobile, landline or any other telecommunication devices, nor shall he be allowed to have access to W.P.(Crl.)No.233/2025 Page 16 of 16 the internet;
-
The petitioner shall not interact with any person except to his limited responsibility as a Member of Parliament;
-
The petitioner shall not address the media in any manner whatsoever; and
-
The Secretary General, Lok Sabha is requested to ensure compliance of the present conditions.
[Abdul Rashid v. NIA, 2025 SCC OnLine Del 760, decided on 10-02-2025]
Advocates who appeared in this case:
Mr. H. Hariharan, Sr. Adv. with Mr. Vikhyat Oberoi, Mr. Aditya Wadhwa, Ms. Nishita Gupta, Mr. Shivam Prakash, Mr. Ravi Sharma, Ms. Jagriti Pandey, Ms. Punya Rekha Angara, Ms. Vasundhara, Ms. Sana Singh, Mr. Aman Akhtar, Mr. Vinayak Gautam and Mr. Hasain Khwaja, Advocates for petitioner
Mr. Sidharth Luthra, Sr. Adv. with Mr. Akshai Malik, SPP for NIA, Mr. Ayush Agarwal, Mr. Khawar Saleem, Mr. Udbhav Sinha, Mr. Siddhant Gupta and Mr. Yatharth Sharma, Advs. for NIA Mr. B.B. Pathak, Addl. SP, CIO, Mr. Anil Kumar, Dy. Sp. Consultant, Mr. Abhishek Kumar, Dy. Sp., NIA Mr. Kanhaiya Singhal, Adv. for Delhi High Court.