Gulfisha's plea: Judges recuse, cite lawyer Pracha's 'heckling'
New Delhi: Citing "heckling" by a lawyer "who doesn't even know basics of law", a division bench of the Delhi High Court on Monday recused from hearing a habeas corpus petition moved by Delhi riots accused and MBA student Gulfisha Fatima where she has claimed her custody pertaining to the case of alleged "larger conspiracy" behind the communal carnage as "illegal".
A division bench of Justices Siddharth Mridul and Anup J Bhambhani recused from hearing advocate Mehmood Pracha, representing Fatima, while noting in its order that instead of responding to questions posed by the court, the counsel was resorting to "heckling" and hence the matter should be listed before another bench subject to approval of the Chief Justice.
During the course of the hearing, advocate Pracha argued that his client's custody in the case was illegal as only a special court judge holds the power to remand her to custody and not a Sessions judge. Meanwhile, Special Public Prosecutor Amit Mahajan opposed the plea, stating at the outset that the plea was not maintainable.
However, the court, while questioning the petition, stated that the same was earlier filed by Fatima's brother which later got dismissed, following which he moved the Supreme Court. "You can't assail the findings in a previous habeas corpus by way of a fresh petition. Please ask yourself if the issue can be reagitated…"
On this advocate Pracha submitted that his client's custody became illegal through a judgement which was passed by the Supreme Court in October. "The proposition we made was upheld by the SC in another case.." Pracha submitted.
However, the court shot back stating that while the earlier plea was made by the brother of the petitioner and while the brother is not here anymore, the sister was making a prayer for herself. "Pracha relied on a Supreme Court decision pertaining to Bikramjit vs The State of Punjab to claim that according to the judgement, Fatima's custody became illegal in August itself. "Habeas corpus is qua custody of the prisoner," Pracha submitted.
"...one the SC has made a law, it will be assumed that it was always the law. But what will happen to the prior orders? Have you not exhausted your remedy?" the court further asked Pracha.
However, Pracha stated that the custody of Fatima was extended by a Sessions Judge and hence the same was illegal. "If custody is extended, you tell the Sessions judge you cannot extend it next time. Why are you here before us?" Justice Mridul remarked.
Justice Bhambhani also stated that the Supreme Court's judgement will not be applicable in the present case and that once a remand order is passed by a court, it cannot be set aside by a Habeas Corpus petition. On being asked about when Fatima's last remand order was passed, Pracha submitted that he had no knowledge about the same and no one was telling him about it.
After the court asked Pracha to file an affidavit stating that he didn't have the remand order, Pracha asked the bench to record his statements pertaining to it but the bench asked him that he wasn't addressing a rally but a court of law and that everything has to be on record.
Subsequently, a visibly irritated bench noted that instead of addressing them on merits, Pracha was resorting to heckling and transferred the case to another bench.
