Engineer Rashid case: Delhi HC registrar general moves SC seeking clarification on special court designation

Rashid has sought interim bail, directions to the trial court to hear him expeditiously, and has also orally requested that he is amenable to custody parole so he can attend the ongoing Parliament session. His bail plea has been pending at the trial court as it awaits instructions on whether an NIA court or a designated MP/MLA court has jurisdiction to decide his plea.

Rashid, through senior advocate N Hariharan, submitted before the high court that he has been left “remediless” over a jurisdictional gridlock, effectively leaving him without an option to seek bail or face trial.

Additional Sessions Judge Chander Jit Singh had reserved the order on his bail plea in August 2024 and the court had requested the district judge to transfer the case to a court designated to try lawmakers, observing Rashid was now an MP. The NIA had also communicated to Kanwaljeet Arora, Registrar General, Delhi High Court, for appropriate designation of a court which could hear Rashid’s bail plea.

On January 24, Arora, through advocate Kanhaiya Singhal, filed an application in an existing 2016 PIL by BJP leader Ashwini Kumar Upadhyay pertaining to designated MP/MLA courts. The application, as accessed by The Indian Express states that since 2020, three courts at the level of Delhi Higher Judicial Services are functioning as designated MP/MLA courts to deal with their cases.

The application goes on to note that in a letter on November 27, 2024, Jitendra Kumar Gogia, Joint Director, Directorate of Enforcement, Delhi zonal office, had requested the Delhi High Court for designation of NIA Court at Patiala House as an MP/MLA court, specifically in the case of ED Vs Muhammad Hafiz Saeed and Ors, where Rashid is an accused.

Vijay Sakhare, IPS, Inspector General of Police, NIA, New Delhi, in another communication on November 28, 2024, further suggested the designation of the court of Additional Sessions Judge-03, Patiala House Court (NIA Special Court), New Delhi, as an MP/MLA court in terms of directions issued by the Supreme Court, for conducting trial exclusively in this specific NIA case.

Rashid was arrested in 2019 in a terror funding case under the Unlawful Activities (Prevention) Act. According to the NIA, he used various public platforms to “propagate the ideology of separatism and secessionism”, was closely associated with various terrorist organisations, and wanted to “legitimise” the United Jihad Council, a platform of anti-India militant groups in Jammu and Kashmir.

The NIA had initially registered the offence in 2017.

Elaborating the jurisdictional dilemma, Arora stated in his application, “That the issue which has arisen is whether in the present circumstances, wherein one of the accused is a sitting Member of Parliament and facing trial before the Special Court, NIA Act, for the scheduled offense as per NIA Act, and also for the offence punishable under PMLA Act, can he be tried by the same Special Court constituted as per NIA Act, instead of Special Court trying MPs/MLAs?”

“As per the directives of this Hon’ble Court, the said accused being an MP, he should be tried by the special court constituted for the purpose of trial of MPs/MLAs. Furthermore, if the case is transferred to the special court trying the MPs/MLAs, the said court is not the special court constituted for the purpose of NIA Act and designation/constitution of the said special court trying MPs/MLAs as special court for the purpose of NIA Act would take considerable time as notification for the said purpose shall be required to be passed by the central government as per the statutory requirement. Furthermore, the trial of the said accused is already in progress and transfer of the case with the constitution of special court afresh would delay the trial,” the application further stated.

“That in view of the above peculiar facts and circumstances, an exception to the effect may be brought for trial of those MPs/MLAs (including ex-MPs/MLAs) who are facing trial of the scheduled offences as prescribed in the special Acts like NIA Act, and thereby enabling the High Court to issue notification/office order for trial of those MPs/MLAs (including ex-MPs/MLAs) by the special court designated/constituted under Section 11 of the NIA Act instead of trial of those MPs/MLAs (including Ex- MPs/MLAs) by the special courts created for the trial of MPs/MLAs,” it added.

Meanwhile, on Tuesday, Justice Mahajan issued notice to the registrar general, seeking a response to ascertain the administrative orders passed so far. The matter has been posted for further consideration on February 6.