It cannot be lightly dismissed that none other than the Supreme Court Bar Association (SCBA) on December 28, 2020 had expressed shock and deep concern on the arbitrary, illegal and brazen exercise of brute power by the police against lawyers, including the search conducted at the premises of an advocate representing some of the accused in the North-East Delhi riots cases. This was published in 'The Times of India' newspaper dated December 29, 2020 as also in other leading newspapers. This is really condemnable as lawyer is an officer of the court and it cannot be lightly dismissed as none other than the Supreme Court Bar Association has taken serious note of it.
To put things in perspective, it is pointed out that regarding the search at advocate Mehmood Pracha's office premises, the SCBA said that such actions were intimidatory and designed to abuse the due process by coercing an advocate to succumb to police threats and methods unheard of in legal annals. How can such a search at the office premises of an advocate who is an officer of the court be justified? This alone explains why even SCBA has taken a very serious note of it.
To be sure, the SCBA said in a statement that,:
Such a search/seizure is in the teeth of the specific provisions of law which recognize the client lawyer relationship and protects all correspondence between the advocate and his client. It would be useful to go through Section 126 of the Indian Evidence Act which all those in the legal field are fully well-versed with. For starters, it must be mentioned here that Section 126 of the Indian Evidence Act states that:
126. Professional communication
No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure:
- Any such communication made in furtherance of any [illegal] purpose.
- Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, [pleader], attorney or vakil was or was not directed to such fact by or on behalf on his client.
Explanation - The obligation stated in this section continues after the employment has ceased.
Truth be told, the SCBA also said explicitly, elegantly and effectively that, Encroachment on the rights of an advocate by the police violates the rights of the accused to a fair trial guaranteed under Article 21, and the protection against self-incrimination guaranteed under Article 20(3) of the Constitution of India, jeopardising the rights of the client to a free trial. Who can deny or dispute this? The police has a lot of introspection to do on what it has done.
Going forward, the SCBA also pointed out that:
The seizures of confidential information which is protected by lawyer-client privilege, in a search conducted by the very police authorities who are prosecuting the lawyer's clients, will prejudicially affect the rights and guarantees of the accused. Again who can deny or dispute this? What the top court Bar Association vis-à-vis the Supreme Court Bar Association has stated so rightly cannot be brushed aside or swept under the carpet!
It must be pointed out here that the Special Cell of the Delhi Police had searched the Nizamuddin East office of lawyer Mahmood Pracha. As we all know or at least many of us those who are in legal field know fully well that Pracha's firm Legal Axis is defending several persons accused in different cases related to the Delhi riots in February 2020 – these cases include those in which sections of the stringent Unlawful Activities (Prevention) Act (UAPA) have been invoked. It must be informed here that in August 2020, the Delhi police had told a Delhi court that Pracha had forged documents and instigated a man to depose falsely in a case related to the riots.
According to advocate Mahmood Pracha's associate, advocate Digvijay Singh, the law firm is handling nearly 150 riot related cases, including one filed against student activist Gulfisha Fatima, who is in judicial custody in a UAPA case. Pracha was at pains to point out that, My phone has been seized. I am being threatened. I have told them they can take things from my computers, from my office and even my home. At the end of the day, the Constitution will win. It is not so weak....We will ensure that each and every riot victim gets justice.
On their part, Additional PRO (Delhi Police) Anil Mittal said that:
During the course of a bail matter pertaining to an accused in the Northeast Delhi riots, use of a forged notary stamp and creation of allegedly false/manipulated evidence at the hands of certain members of the Bar was noticed. The Special Court had observed that this required thorough investigation. Pursuant to this, a criminal case under appropriate sections of law was registered and investigation was taken up.
Furthermore, Mittal also said that:
During the course of investigation, search warrants to look for electronic and other evidence from the premises of two members of the Bar were obtained from the Court and the same are being executed in a professional manner at one location in Nizamuddin and another at Yamuna Vihar.
Meanwhile, many senior lawyers continued to criticize the police action against the lawyers. This included Delhi government's Senior Standing Counsel (Criminal) Rahul Mehra who tweeted that, I may have professional differences with Mr Mahmood Pracha and may agree to disagree with him most of the time but for an office of a lawyer to be raided like this is highly condemnable. Expecting good sense to prevail sooner rather than later. Another high profile senior Supreme Court lawyer and eminent Congress leader Manish Tewari minced no words to say that he was deeply disturbed by the search conducted at Pracha's offices and asked the Bar Council to take up this arbitrary harassment. So this is a very serious issue and must be taken most seriously in the right earnest.
Adding more to it, the Delhi High Court Women Lawyers Forum has also written to the President of Delhi High Court Bar Association (DHCBA), Mohit Mathur, expressing deep concerns over investigating agency arraigning lawyers as accused in criminal cases. The Forum states that on the face of it, the proceedings initiated against lawyers are ostensibly independent of the matters being handled by them.
However, the pattern emerging from all such instances, where lawyers are being targeted, is hard to ignore. The statement by the Forum minces no words to state unequivocally that, Raids in the office of Mr. Mahmood Pracha, Advocate is the latest example of such intimation by the Delhi Police. Mr. Pracha is representing several accused persons in the recent riot cases in Delhi. The recent trend indicates that there are other lawyers too who are being intimidated and discouraged from representing their clients in these cases. However, this is also a larger issue that goes beyond the riots case, wherein lawyers who are vocal about defending civil liberties are being systematically targeted.
Not just this, even the Bar Council of Delhi (BCD) has written to the Union Home Minister – Amit Shah seeking immediate action in connection with the police raid at his office. The letter reads as: We notice anguish and anger amongst the legal community, primarily because it goes to the very root and independent discharge of responsibility by an Advocate, as provided under the Constitution of India being integral part of the Justice Dispensation System, the Advocates Act, 1961 and the Bar Council of India Rules.
The letter has been signed by Vice Chairman of BCD – Himal Akhtar; Member of BCD – Rajiv Khosla and former Chairman – KC Mittal also. Without going into the factual matrix of the case, the BCD has highlighted Sections 126 to 129 of the Indian Evidence Act which provides for privileges to the legal practitioners in connection with communication with clients.
The communication states that, We think the provisions of law cannot be ignored. The letter further states that there is an understanding that in case of any case against an advocate, the representatives of the Bar Association/Bar Council would be informed and taken into confidence by the Delhi Police. The letter reads remarkably as: This broader understanding is to maintain the harmony and cordiality between the two wings of the justice delivery system.
This seems to have not been followed in the present case. While we do not want to go into various aspects of the matter, apparently the action of Delhi Police falls short on these aspects, which is a very serious matter as far as the legal community is concerned.
It again cannot be lightly dismissed that former Additional Solicitor General Indira Jaising condemned the raid at Pracha's office saying that such actions will lead to a denial of justice to various accused and victims in the Delhi riots cases who are certainly entitled to a free and fair trial. It cannot be denied that if lawyers are intimidated then their morale is bound to get affected no matter how hard they may deny!
It must be mentioned here that Pracha is representing pro bono nearly 100 people in the 2020 Delhi riots case. Pracha mentioned that the raid that began at noon ended at 3 am the other day. Pracha alleged that the police assaulted and intimidated him. Pracha also said that, The search ended at 3 am and they could not find anything. Even though police are alleging misconduct on our behalf, they recorded everything on video and that video will show to the world what happened.
It cannot be questioned that Pracha rightly pressed for a court-monitored probe of the FIR against him pointing out that the FIR was registered way back in August but the raid was conducted now with an ulterior design to deter him from appearing in riots cases. At a press conference held at the Press Club, the riot victims while coming out in open support of Pracha also claimed that the police threatened them to withdraw complaints and did not file cases.
Sahil Parvez whose father was allegedly shot dead by rioters said that, Police officials and authorities did not listen to me while preparing medico-legal certificates or first information reports. Even though I named the rioters, no action was taken against them. Some were arrested and later released on bail. During this time, I was constantly threatened to withdraw my case. Delhi Police spokesperson Anil Mittal was quick to retort that, All such allegations are false and baseless. Investigation into cases is being done solely on merits.
Mohammad Nasir Khan who was shot at by rioters and lost an eye at the violence said that he received no legal help by the police in the days following the riots. Khan who is a resident of north Ghonda said that, I had read about Pracha who took up cases pro bono of marginalized people from minority, Scheduled Caste, Scheduled Tribe communities. However, after bringing him on board, we started getting threats that we should withdraw our complaints or get another lawyer. It must be mentioned here that communal vioplence had broken out in northeast Delhi in February 2020 over Citizenship Amendment Act (CAA) between supporters and protesters which left at least 53 people dead and around 400 injured.
Speaking to journalists after the hearing, Pracha said that the police have displayed an egregious example of lawlessness and illegalities under the guise of investigation into a forgery FIR registered against unknown persons. He further said that, I am not even aware if I have been named as an accused or not in this FIR. It has been almost four months since registration of the FIR and there is no chargesheet till date. They took away details of all the cases and clients, which are privileged communication between a lawyer and his clients. If this is not a witch-hunt what else can be? I was assaulted but I am now being told that another FIR is lodged against me at the instance of the raiding team. This is truly most despicable! If this can happen to such an eminent lawyer what will happen to a common man? It is anybody's guess that a common man is at the complete mercy of the police who can extort money among other things and harass him/her to no end!
It must be reiterated: What has happened with such an eminent lawyer like Mahmood Pracha is most despicable, deplorable, dangerous and disastrous to say the least. Pracha had rightly said that, Bar is the last bastion. We must all rise to the occasion and save attacks on our profession and ultimately the Constitution of India. Every lawyer must feel concerned over what has happened with him as it is quite a disturbing trend and we in frequent intervals keep hearing such untoward incidents. An impartial enquiry must be conducted and those who are guilty must be proceeded with in accordance with law.
It cannot be lightly dismissed that senior lawyers like Prashant Bhushan, Chander Uday Singh and former Bombay High Court Judge BG Kolse Patil while denouncing the most intimidating search at Pracha's office remarked that, Delhi police searches at advocate Mehmood Pracha's office compromises the entire criminal justice system and rights of the accused. Over 1200 lawyers have also signed a petition demanding strict action against erring police officers as well as the Judge who allowed the searches. Lawyer Bahadur Abhas Naqvi who is an aide of Pracha said that they plan to take out a march from the High Court to Supreme Court on January 22 to hand over the petition to Chief Justice of India SA Bobde. Chander Uday Singh minced no words to say that, The police action compromises the entire criminal justice system and rights of the accused.
The search warrant also goes against the fundamental principles of the justice system. The communication between a client and a lawyer is completely privileged. This is one of the pillars of the judicial system. Eminent Supreme Court lawyer Prashant Bhushan too said that the searches, carried out on December 24, raise serious questions. He said that, Pracha is a prominent lawyer who has been defending several persons accused in the February 2020 communal riots in Delhi. He has also been instrumental in getting FIRs registered against the Delhi Police for their malafide investigation into the riots.
On the contrary, police allege that Pracha had forged documents and instigated one Irshad Ali to depose falsely in a case related to the riots. Truth must come out. Questioning the search warrant in the case, Bhushan added that instead of searches at his residence, Pracha could have been asked to produce the item concerned in this case an email under Section 91 of the Code of Criminal Procedure. Bhushan pulled back no punches to point out in simple, suave and straight language that, The intention was to intimidate Pracha and his clients.
The police have also refused to share the video recording of the searches. Because if they share, it will be revealed that they were taking the Union Home Minister's name during the searches. It cannot be lightly dismissed that apart from Prashant Bhushan among other lawyers even the SCBA has also expressed its resentment over the manner in which searches were carried out at Pracha's premises. This definitely cannot be lightly dismissed as even the SCBA has taken serious note of it. Let us wait and watch as to what comes out of the probe that follows!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
