The Delhi high court on Wednesday dismissed a petition by Neelam Azad, an accused arrested in the December 13 Parliament security breach case, seeking her release on the grounds that her police remand was illegal.
A bench headed by Justice Suresh Kumar Kait said the petition, which alleged that Azad was not allowed to consult a lawyer of her choice before the trial court at the time of remand, was not maintainable.
"Petitioner has already moved bail application before the trial court. Present petition is not maintainable and is dismissed accordingly," the bench, also comprising Justice Manoj Jain, said.
Azad's lawyer argued the trial court granted her custody to the police in violation of the provisions of the Constitution as she was not allowed to consult a legal practitioner of her choice to defend her during the trial court proceedings. Also, the order remanding her in police custody was passed without application of mind, he said.
"I am seeking release on the ground that my fundamental right was violated," he argued.
During the hearing, the high court said no case of violation of her fundamental rights was made out.
"This can't be the ground. Whatever (legal aid) lawyer was there, the trial court passed the order... There is no such right violated. Go to the trial court. Your case is pending there," the court told the petitioner's counsel.
The lawyer for the city police said Azad has already filed a bail application seeking her release in the present FIR which concerns offences under the Unlawful Activities Prevention Act (UAPA).
The lawyer also contended that the petition was not maintainable, and her police custody was already coming to an end on January 5.
In her petition seeking a writ of habeas corpus directing her production before the high court as well as an order to "set her at liberty", Azad said not allowing her to consult a lawyer of her choice amounted to violation of her fundamental right guaranteed under the Constitution, making the remand order unlawful. The trial court has remanded her in police custody till January 5.
Under Indian laws, a detainee or a person on their behalf can file a habeas corpus petition in a high court or the Supreme Court for their production if they feel they have been detained illegally. Upon production, if the court concerned concludes that the detention is illegal, it can order their release.
"Upon her arrest, the petitioner's family wasn't informed. It was informed only in the evening of 14.12.2023. Further, she wasn't permitted to meet any person including advocates which is mandatory under Article 22(1) of the Constitution of India. Even at the court a single DLSA (Delhi Legal Services Authority) counsel was appointed to all the accused persons without giving them any choice among counsels," the plea, filed through lawyer Suresh Kumar, alleged.
"The remand order dated 21.12.2023 is illegal and violative of Article 22(1) of the Constitution of India which mandates the accused person to be defended by a legal practitioner of his choice whereas in the present case the petitioner's advocate wasn't permitted to take instructions and defend the petitioner prior to the disposal of the remand application," the plea added.
The petition also said she was produced before the trial court on December 14 "after a period of 29 hours from the time of arrest".
Article 22(2) of the Constitution says every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
On December 21, the trial court had extended till January 5 the police custody of four accused, including Azad, arrested in the Parliament security breach case, after the city police said they needed to uncover all those involved in the conspiracy.
While the four were arrested on the day of the incident itself, two others were apprehended later.
In a major security breach on the anniversary of the 2001 Parliament terror attack on December 13, 2023, two persons identified as Sagar Sharma and Manoranjan D jumped into the Lok Sabha chamber from the public gallery during Zero Hour, released yellow gas from canisters and shouted slogans before being overpowered by some MPs.
Around the same time, two others -- Amol Shinde and Azad -- also sprayed coloured gas from canisters while shouting "taanashahi nahi chalegi" outside the Parliament House premises.
Besides the four accused, the police have also arrested Lalit Jha and Mahesh Kumawat in the case. All are being interrogated in police custody.
The high court had recently stayed the trial court's direction to the city police to supply a copy of the FIR to Azad, noting that it is a case of sensitive nature and, according to a judgment of the Supreme Court, the FIRs in sexual offences, offences pertaining to insurgency, terrorism and of that category, and those under the Protection of Children from Sexual Offences (POCSO) Act are not to be uploaded on website of the authorities.
