'Not Maintainable': HC dismisses Gulfisha's habeas corpus plea

New Delhi: Days after a division bench recused from hearing Delhi riots UAPA accused Gulfisha Fatima's habeas corpus plea citing her lawyer Mehmood Pracha's "heckling", another bench of the Delhi High Court has dismissed the plea while holding it as "misplaced" and "not maintainable".

A division bench of Justices Vipin Sanghi and Jasmeet Singh was hearing a plea moved by Fatima where she claims her judicial custody in the case involving a "larger conspiracy" behind the Delhi riots as "illegal" and in violation of law since the remand extension order was passed by a Sessions judge and not a special court judge. Fatima, through Advocate Mehmood Pracha, had also claimed that a Supreme Court judgement passed in October last year had also made her custody illegal.

During the course of the proceedings on Friday, Advocate Jatin Bhatt, on behalf of Fatima, argued that the prosecution should place on record her remand order passed by a trial court as they don't have a copy of the same, as argued in an earlier hearing.

"The plea is regarding her illegal custody which she continues to remain in...the remand order was passed by a Sessions judge which is illegal…," Bhatt submitted. However, the bench, displeased with the plea, questioned at the outset the maintainability of the habeas corpus plea.

"Habeas corpus will not merit for problems in the remand order...there is a proper platform to take your grievance...how is this maintainable?" Justice Sanghi asked the counsel.

However, when Bhatt insisted on her judicial custody being illegal because of a faulty trial court order, the court shot back, asking the lawyer to show as to how was this plea maintainable with regard to an earlier plea moved by Fatima's brother claiming his sister's custody as illegal and which was subsequently dismissed by the court.

Despite Bhatt's insistence, the bench refused to intervene in the said plea and reiterated the petitioner's grievance should be challenged before an appropriate platform. "We don't have to tell you...in a writ petition we won't violate judicial orders," Justice Sanghi orally observed.

Meanwhile, Special Public Prosecutor Amit Mahajan too opposed the plea stating that it is not maintainable and should be dismissed.

Eventually, in its order, the court noted: "This petition is completely misplaced and not maintainable...the facts will show that the petitioner is in judicial custody and detention, therefore, cannot be termed as illegal".

In an earlier hearing, a division bench had pulled up Advocate Pracha for "not having basic understanding of law" and "heckling" the court. As per police reply however, Fatima's custody was claimed as valid as it was pursuant to a trial court order passed on September 17 following her arrest on April 11.