Special NIA court can hear Er Rashid’s bail plea in terror funding case: SC
NEW DELHI: Clarifying it wasn’t a precedent, the Delhi High Court on Monday allowed a two-day custody parole to jailed J&K MP Rashid Engineer to attend the Parliament session.
Justice Vikas Mahajan, however, clarified the order was passed on account of Rashid having no other remedy due to non-availability of a court to hear his bail plea and the relief should not be construed as a precedent.
Rashid was allowed to attend the Parliament sessions on February 11 and 13.
“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,” the court said.
The order said it would not “completely negate” Rashid’s plea for custody parole.
Custody parole entails a prisoner being escorted by armed police personnel to the place of visit.
Justice Mahajan in a 16-page judgment said the law was “well settled” on the issue of jailed legislators having no statutory right to participate in the session of the house and Rashid therefore had no “enforceable right” to attend Parliament session.
The court, said the judge, could not “lose sight” that his plea for regular or interim bail was pending in the NIA court since August 2014.
Deprivation of personal liberty without ensuring speedy trial was not consistent with Article 21 of the Constitution of India, and timely delivery of justice was part of human rights, it added.
Rashid was saddled with certain riders, including not using a cellphone or internet, or addressing the media or any person except to his limited responsibility as an MP.
“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,” ordered the court.
The Baramulla MP is facing trial in a terror funding case with the allegations that he funded separatists and terror groups in Jammu and Kashmir.Jammu travel guide
Rashid moved the high court alleging he was left without a remedy after the NIA court dealing with his bail application left him in a limbo post his election to the Lok Sabha last year on account of it not being a special MP/MLA court.
As an interim relief, he sought custody parole.
The court order said if the parliamentary sessions went beyond the official jail hours, jail authorities would allow Rashid to surrender after such official hours and on both the days, he would be in the custody of the jail authorities with adequate police security.
Any prayer for further custody parole would be considered by the “designated court” on merits in accordance with law, it added.
Senior advocate Sidharth Luthra and advocate Akshai Malik, representing the NIA, argued against the granting of custody parole, and said Rashid did not have a vested right to attend Parliament and hadn’t demonstrated a specific purpose for his request.
Luthra highlighted security concerns over Rashid being allowed to enter Parliament, saying custody parole required police escort, posing complications given the restrictions on armed personnel within the premises.
Meanwhile , the Supreme Court on Monday said the special court constituted under the NIA Act could hear the bail plea of jailed J&K MP Engineer Rashid in a terror funding case.
A bench of Justices Dipankar Datta and Manmohan said the trial against Rashid commenced before his election as an MP and 21 prosecution witnesses had been examined by the special court.
A lawyer associated with the case said that with the apex court order clarifying the position, the Delhi High Court could pass directions on the administrative side within two-three days.
The Delhi High Court registrar general moved the top court over the issue of jurisdiction of the court which should ideally hear jailed Rashid’s bail plea.
“Clarify that the high court may authorise the trial of MPs/MLAs (including Ex- MPs/MLAs) who are facing trial of the scheduled offences as prescribed in the Special Acts like NIA Act by the special court designated/constituted under Section 11 of the NIA Act instead of by the Special Courts created for the trial of MPs/MLAs and thereby enabling the High Court to issue necessary notification/office order in this regard,” the high court said in its plea.
The clarification from Supreme Court was required as a 2016 judgment of the apex court designates MP/MLA court to solely try cases involving MP/MLAs.
Rashid was elected from the Baramulla constituency in the 2024 Lok Sabha elections and has been lodged in Tihar Jail since 2019 after the NIA arrested him under the Unlawful Activities (Prevention) Act in the 2017 terror-funding case.
In a related development, the Delhi High Court today allowed two-day custody parole to Engineer to attend the ongoing Parliament session. Justice Vikas Mahajan said Rashid could attend the Parliament session on February 11 and 13.
