Amid the prevailing confusion over the magisterial court's power to handle cases under Unlawful Activities Prevention Act, triggered by a sessions court's order, the Delhi high court on Friday directed chief metropolitan magistrate to deal with the cases under anti-terror law.
"It is clarified that till the question of law is decided by this court, the CMM is directed to take cognisance in the matter under the UAP Act," said Justice Manmohan , clarifying his July 2 order, by which he had stayed the sessions court's June 8 order.
The June 8 order of Additional Sessions Judge Surinder Rathi had questioned the magisterial court's power to deal with the cases under the anti-terror law and to extend the custody of terror case accused.
Justice Manmohan's order came on the plea of city police, which had been probing the February 2012 terror attack on an Israeli diplomat and had sought high court's clarification on the magisterial court's power in dealing with the cases under anti-terror law UAPA.
The high court also expressed displeasure over another sessions court order, which, amid the confusion over the magisterial court's power, had extended Kazmi's remand only by three days on July 3, despite the high court's stay on ASJ Rathi's June 8 order.
"Once I stayed the matter, the ASJ could not have proceeded with the case. This is not politics. We have a hierarchy of courts and they can't take the law onto themselves," Justice Manmohan said.
The court made these remarks after the police counsel Pawan Sharma informed that despite the court's stay order on July 2, ASJ P K Jain had extended Kazmi's custody after the CMM had refused to do so in light of an observation made by the sessions court against the magisterial court on June 8.
The police had approached the high court in the wake of recent confusion among lower courts in dealing with the issue of extending the judicial custody of journalist Syed Mohammad Kazmi, arrested for his alleged role in the terror attack over the Israeli diplomat.
The confusion had cropped up after Additional Sessions Judge S S Rathi on June 8 had questioned the CMM's power to extend the judicial or police custody of an accused under the anti-terror law, UAPA.
"Not only the prosecution and the defence but also the court of CMM were per se in dark and were blissfully ignorant about the non-competence of the magisterial court to deal with matter under UAPA as evidently they were never discussed at any point of time," ASJ Rathi had said on June 8 in a ruling delivered over a plea by Kazmi.
Kazmi had gone to his court challenging the CMM's June 2 order, which had extended the probe period of the case by another 90 days after the scribe had already spent 90 days in custody since his arrest by the Special Cell on March 3.
After ASJ Rathi's June 8 order, both the defence and prosecution counsel in the case of terror attack on an Israeli diplomat had found themselves running from one court to another for extension of Kazmi's judicial custody as the CMM's court had refused to take up the matter.
On a plea by the police challenging ASJ Rathi's order, the high court had even stayed it on July 2, but the CMM had refused to take it up saying a plain reading of the high court's order reveals "no stay has been granted upon the observations" made by the sessions court on magisterial court's power to deal with the issue of extension of custody of terror law accused.