Order remanding Purkayastha, Chakravarty in police custody under HC scanner

New Delhi: A trial court’s order remanding NewsClick founder Prabir Purkayastha and human resources department head Amit Chakravarty in police custody in a case lodged under anti-terror law Unlawful Activities (Prevention) Act (UAPA) Friday came under scanner in the Delhi High Court which said there appeared to be something missing as the order was apparently passed without hearing their counsel.

Purkayastha and Chakravarty, who were arrested by the Special Cell of the Delhi Police on October 3 and are in police custody, rushed to the high court challenging their arrest and sought immediate release as an interim relief.

However, Justice Tushar Rao Gedela said such a relief cannot be granted at this stage as the court has to also hear the counsel for police, and listed the matter for further hearing on October 9 as the first case.

“The only difficulty is that the allegations don’t seem to be of such nature that you can be released immediately,” the high court said.

Besides their arrest, the duo has also challenged the trial court’s order remanding them in seven-day police custody and sought quashing of the FIR in the case.

The high court issued notice and sought Delhi Police’s response on the two petitions challenging their arrest, remand order and seeking quashing of the FIR. It also asked the police to file a reply with regard to the interim applications seeking release till the pendency of the petitions.

The high court asked the investigating officer to produce the case diary before it on Monday and ensure the medical condition of Chakravarty, who is differently-abled, is not compromised.

Solicitor General Tushar Mehta, representing the Delhi Police, said replies to the interim prayers will be filed within a day. He urged the court to grant him some time to get instructions and list the matter for Monday.

“I don’t have the copy, I will put in my reply to this (petitions and applications). Several facts are stated and are pleaded (that) I do not know. Factually also, I will have to take instructions. I don’t even have the papers, kindly keep the matter on Monday.” Senior advocate Kapil Sibal, representing Purkayastha, said he has shown the documents to the court and his client was entitled to release as the arrest was illegal and no grounds for it was conveyed to him.

He claimed violation of the Delhi High Court Rules which say that an accused is entitled to counsel and asserted the remand order was passed without hearing Purkayastha’s lawyer or considering his response to the remand application.

“This is completely illegal. His custody can’t be continued. He must be released forthwith,” Sibal contended.

Justice Gedela orally remarked, “Mr Mehta, just tell us one thing. So far as the order that has been passed on remand, there appears to be something which is missing there because it says it was passed at 6 AM and apparently he (trial court judge) has not heard the counsel (for accused).” Sibal submitted that on its own terms, the remand order is unsustainable.

To this, the judge said, “That’s precisely why I am saying we’ll have to give them a hearing. But if I hold it unsustainable, it goes. The whole thing goes.”

Sibal responded: “Then why should I be inside (in custody) over the weekend? Give me interim protection. Prima facie if I have a case, grant me interim release and hear it on Monday, I will go back again.” Purkayastha and Chakravarty were arrested by the Special Cell of the Delhi Police on October 3 and were ordered to be in their custody till October 11. Police have sealed the NewsClick's office in Delhi.

The portal has been accused of receiving money to spread pro-China propaganda.

According to the FIR, a large amount of funds to the news portal came from China to "disrupt the sovereignty of India" and cause disaffection against the country.

It also alleged Purkayastha conspired with a group -- People's Alliance for Democracy and Secularism (PADS) -- to sabotage the electoral process during the 2019 Lok Sabha polls.

These foreign funds were fraudulently infused by an active member of the propaganda department of the Communist Party of China, Neville Roy Singham, it claimed.

During the arguments, Sibal said a raid was conducted at the residence of his client on the morning of October 3 and he was taken to the office of the Special Cell at Lodhi Road. He was arrested the same evening at around 7 PM.

The next day, he was taken to the residence of the trial court judge at around 6-6:30 AM for production where the prosecutor and legal aid counsel were present but the family members or counsel of Purkayastha were not informed, Sibal claimed.

Sibal said the family members and counsel were later informed about the remand proceedings. They objected when told that the remand application will be sent through WhatsApp and he can file his objections using the same mode.

The remand application was sent through WhatsApp message to Purkayastha’s counsel at around 7:07 PM after which he sent a document containing detailed objections to the grant of remand on the same number, the senior lawyer said.

However, they came to know that Purkayastha had already been sent to police custody for seven days and the trial court’s order records that it was signed at 6 AM, which could not have been the case as no remand order was passed at least till 7 AM when the petitioner’s family member was called to join the proceedings, Sibal contended.

He said shockingly, the order also records the presence of the petitioner’s counsel through telephone though he was contacted only at 7 AM and could not have been present at 6 AM.

“What is happening to our courts? That’s all I can say. Grounds of arrest are not given to me. Now there is an order of the Supreme Court that grounds of arrest are not only to be communicated but they have to be handed over to the person in writing,” he argued.

As the court pointed out that apparently in the remand application the police have not disclosed that grounds of arrest were communicated to the two individuals, the solicitor general said there's more to it than meets the eye.

“We understand that but if there is a judgment of the SC staring in the eyes…,” the high court said, referring to a recent order of the apex court directing the ED to henceforth furnish the ground of arrest to an accused.

In the morning, the matter was mentioned for urgent hearing by Sibal before a bench headed by the chief justice which allowed it for listing during the day.

On Thursday, a trial court had directed the city police to provide the duo with a copy of the FIR, citing a 2016 order of the Supreme Court and a 2010 order of the Delhi High Court.

A raid was conducted on October 3 at 88 locations in Delhi and seven in other states on the suspects named in the FIR and those that surfaced in the analysis of data, the police said.

A total of 46 journalists and contributors to NewsClick were questioned on Tuesday and their mobile phones and other electronic gadgets seized.