Prosecution using 'diversionary tactics', Gulfisha argues for bail

New Delhi: UAPA and Delhi riots accused Gulfisha Fatima on Thursday told a Delhi court that her bail application should not be dismissed merely due to some technical mistakes and that the prosecution was involved in "diversionary tactics" by way of challenging the maintainability of her bail plea.

The issue was raised by Advocate Mehmood Pracha, on behalf of Fatima, before Additional Sessions Judge Amitabh Rawat, after the prosecution objected to the bail plea being filed under Section 439 CrPC instead of Section 437 that should have been moved since as per prosecution, the court of ASJ Rawat, which is hearing the plea, is a special court designated under UAPA Act and hence exercises all powers that are before the Court of Magistrate within the rigours of Section 437 CrPC. Hence, Special Public Prosecutor Amit Prasad stated that the present plea should be withdrawn and a fresh one should be filed.

Several other accused in the UAPA case have withdrawn the bail plea filed under Section 439 and replaced it with that of Section 437. Co-accused Umar Khalid too had withdrawn his bail plea and filed a fresh one after calling the same as prosecution's "dilatory tactics".

During the course of proceedings on Thursday, Advocate Mehmood Pracha, argued that the court has power to take cognizance as a special court as well as powers of sessions court. "Section 16(3) of NIA Act has the power under Section 439 CrPC as well as other powers under CrPC," he submitted.

"The issue is still pending. How are they approaching your lordship? Where is the chargesheet as the special judge," Pracha submitted to ASJ Rawat.

Pracha further argued that the chargesheet in the "larger conspiracy" case, where Fatima is an accused with other student activists, was filed before the court while exercising power as a Sessions Judge and not a special judge and therefore the prosecution cannot approach the court at this stage by questioning the maintainability of the application.

During the hearing, after ASJ Rawat brought up the issue of prosecution's challenge to Fatima's bail plea, Pracha argued: "When personal liberty is involved, nomenclature is not important...this is a diversionary tactic, you should take this seriously. Are you a session judge or a special judge for them...if they go into technicalities they will land in a big soup. How are they remembering that you are a special judge now?"

"You have exemplary powers, constitutional powers and powers under UAPA," Pracha told the court. However, the matter has now been adjourned to September 18.