The Wire Staff 
New Delhi: The Supreme Court on Monday (November 11) declined to hear a writ petition filed by Gulfisha Fatima in connection with a 2020 Delhi riots case.
A bench of Justices Bela M. Trivedi and Satish Chandra Sharma were hearing the matter and said that while the petition cannot be entertained, the Delhi high court must hear Fatima’s bail plea on the appointed date unless there are exceptional circumstances.
Fatima, accused under the draconian Unlawful Activities (Prevention) Act (UAPA), has been in jail for over four years.
Justice Trivedi said that a similar petition had been filed by co-accused Sharjeel Imam but was disposed of, LiveLaw reported.
Senior advocate Kapil Sibal, appearing on Fatima’s behalf, said that Imam’s case differed from that matter in front of this bench. “This lady (petitioner) has been inside for four years and 7 months. And on 24 dates, the bench was adjourned because the presiding officer was on leave and on other 26 dates, no arguments were heard and matter was simply adjourned. And on two separate dates, arguments heard, order reserved…” Sibal said.
He told the court that the next date appointed for Fatima’s bail hearing is November 25. “I want bail here,” Sibal said, emphasising the prolonged incarceration and an undue delay in trial.
“What is the point of keeping someone for 4 years and 7 months in jail? She is a lady, aged 31 years. No question of a trial beginning,” Sibal asked.
“The matter should be heard, there is no doubt about that,” Justice Trivedi said while saying that the relief cannot be sought under Article 32 if the statutory remedy is pending.
Sibal cited a Supreme Court judgement on K.A. Najeeb which held that Section 43D(5) will not prevent courts from granting bail if there is an undue delay in trial.
“Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial,” Sibal said.
However, Justice Sharma pointed out that the said judgement was passed in an appeal challenging the high court’s rejection of bail. “This is coming out of an order of the High Court. So the procedure was followed,” Justice Sharma said.
Justice Sharma added that they were making a request to the high court for the first time to which Sibal replied, “It will again not be heard. Then, your Ladyship will say I can’t file Article 32 petition. Where will we go?”
The senior advocate then insisted that a time frame be set for the high court to decide the matter.
“We are not inclined to entertain the writ petition under Article 32 of the Constitution. It is stated that the next date fixed before the High Court is 25th November. Since the petitioner is under custody for 4 years and 7 months, it is requested that the bail application may be heard on the date fixed unless there are extraordinary circumstances,” the court order read.
Fatima was arrested on 11 April 2020 and has been in jail ever since. She was granted bail in FIR No. 50/2020 [PS Jafrabad], a separate case connected to the riots. However, on 16 March 2022, she and Tasleem Ahmed were denied bail in the larger conspiracy case by Delhi’s Additional Sessions Judge Amitabh Rawat.
The court said that there were reasonable grounds for believing that accusations against Fatima and Ahmed were prima facie true.
The matter is currently listed before Justices Navin Chawla and Shailender Kaur who are set to hear her bail plea from November 25 onwards.