Delhi riots: HC vacates interim stay on bail granted to school owner Faisal Farooq amid Centre, AAP govt tussle
Justice Suresh Kait said the controversy between the Centre and AAP govt over who will represent Delhi Police has been going on since 22 June, and if the stay remained in force it will prejudice the accused.
New Delhi: The Delhi High Court on Thursday vacated its interim stay on the bail granted to a private school owner in a north-east Delhi riots case as the counsels for the Centre and the AAP government could not agree on who was representing the police.
Justice Suresh Kait said the controversy over who will represent Delhi Police in the matter has been going on since 22 June, the first day of hearing, and was likely to continue and if the stay remained in force, it will prejudice the accused.
"This cannot continue like this," the judge said and vacated the interim order of 22 June which had directed not to release the school owner Faisal Farooq.
The high court also directed all counsels to give their written arguments on the issue of who will represent Delhi Police in the matter and listed it for hearing on 22 July.
The 22 June order had come on the police plea challenging a 20 June order of a trial court granting bail to Farooq.
The controversy over who will represent the police in the instant case continued to plague the matter with lawyers of the Centre and AAP government continuing to oppose each other's claims regarding representing the probe agency.
Additional Solicitor General (ASG) Aman Lekhi contended that he has a letter from the Lieutenant Governor authorising him to appear in the matter and placed the communication before the court.
The contention was vehemently opposed by Delhi government standing counsel (criminal) Rahul Mehra, who said the 1 July letter was issued illegally as the LG took the decision without aid and advise of the Council of Ministers.
Mehra said there were judgments of the Supreme Court and Delhi High Court which clearly said that LG cannot appoint special prosecutors without aid and advise of the Council of Ministers.
Opposing Mehra's arguments, Lekhi said that the apex court and HC judgements he was referring to did not pertain to appointment of a law officer of the Attorney General's office to appear in a criminal matter as a prosecutor.
The judgements pertained to appointment of private lawyers as special prosecutors, Lekhi said.
He said Mehra's reliance on those judgments were "utterly and totally misconceived" as facts in those decisions were totally different from the instant case.
The ASG further argued that it was "outrageous" to say that central government needs to take the state government's permission to appoint a law officer as a special prosecutor in matters in which the Centre is "interested".
He also said that a client has the right to decide whom to appoint to represent it.
Countering the ASG's arguments, Mehra said these were "diversionary tactics" of the central government law officer.
"They are impersonating the state. Under which provision of law is it permitted? If this is allowed, it will happen in Bengal, Maharashtra, Chhattisgarh..," he said.
Mehra further argued that Delhi Police was not like an ordinary client and it cannot choose whom to hire to represent it.
"If police starts to choose its lawyers, then investigation and prosecution would be hand-in-glove. Prosecutors would become mouth piece of the investigation," he said and added that this was not permitted under the criminal procedure law.
After hearing their arguments, Justice Kait said that this controversy first cropped up on 22 June, when the matter was first heard, and "the said issue continued till date".
The judge further said that apart from the instant case, Farooq was also arrested in another FIR and if he seeks bail in that matter and is granted the relief, the 22 June order would prejudice him.
Justice Kait, thereafter, proceeded to vacate the 22 June order.
The ASG urged the judge not to do so, saying it would have serious consequences, but Justice Kait did not agree with him.
On Wednesday, the high court had directed the central government counsel, Amit Mahajan, to show that he was appointed by the Lieutenant Governor to represent the probe agency in the matter.
The 1 July letter placed before the court on Thursday indicated that apart from Mahajan and Lekhi, Solicitor General Tushar Mehta and other law officers were also appointed by LG to represent the police in the instant matter.
In the instant case, Farooq, owner of the Rajdhani School in Shiv Vihar locality, was among the 18 arrested for alleged involvement in burning and damaging property of the adjacent DRP Convent School.
The Delhi Police had on 3 June filed a charge sheet before a trial court against Farooq and 17 others in the incident in which the building of a private school was burnt down in North East Delhi.
The trial court, in its bail order, had noted that the charge sheet filed against him in the case was bereft of material showing his alleged links with the Popular Front of India, Pinjra Tod group and Muslim clerics.
It had directed Farooq to surrender his passport and not leave the National Capital Region without permission of the court. He should mark his attendance on every alternate Wednesday at the police station concerned. It also asked him not to tamper with evidence or influence the witnesses.
The Crime Branch of the Delhi Police had filed the charge sheet against the accused for allegedly conspiring with the Popular Front of India, Pinjra Tod group, Jamia Coordination Committee and Hazrat Nizamuddin Markaz for creating riots, in and around his school.
It has also been alleged that protestors against the CAA had received funds from the PFI, formed in 2006 in Kerala as a successor to the National Democratic Front (NDF).
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