“The court of law is a court of evidence. In abstract, it cannot be argued that whenever a search is being carried out, there is a violation of rights/privileges of a person,” ruled the Delhi High Court while refusing to entertain a plea seeking framing of guidelines to be followed while effecting search and seizure operations at the premises of advocates.
The Division Bench comprising Chief Justice D.N. Patel and Justice Jyoti Singh was hearing a plea by a lawyer who is prejudiced by the absence of any specific guidelines in respect of the conduct of a search on the premises of an advocate.
The Bench noted thus: “We see no reason to entertain this writ petition because there are enough and adequate provisions under the Code of Criminal Procedure, 1973, as to the method by which the search can be carried out at the premises…Moreover, if any person is feeling that there is a violation of his rights or privileges, such person can always approach the concerned Trial Court or the appellate forums for the alleged breach of his or her rights or privileges which have been granted by the law.”
Stating that for claiming violation of any right or privilege, the facts are bound to be established by the person so claiming, the court underscored that- “The Court of law is a court of evidence. In abstract, it cannot be argued that whenever a search is being carried out, there is a violation of the rights or privileges of the person……Unless and until prima facie facts are being established, we are not ready to presume that whenever a raid or search is being carried out, there will be violation of rights or privileges of the person.”
In addition, the court observed a direction to the effect that search must be carried out by a “privilege team” with videography cannot be passed as there may be circumstances which calls for an immediate search to be conducted in which cases videography is not possible. “As a general rule, we are not inclined to give any guidance because search or raid is sometimes required to be carried out immediately…We cannot presume in advance the violation of rights or privileges (of the person on the pretext of a search being conducted at his premises). Such violation of rights or privileges must be established in the court of law by proving certain basic facts and therefore, as and when any party/person is claiming violation of his rights or privilege, they can always approach the court in accordance with the Code of Criminal Procedure,” stated the Bench.
Seizure of confidential information violates right to fair trial, said petitioner
Nikhil Borwankar, who appeared in-person, contended that whenever any search is to be conducted at the premises of a lawyer, the investigating authority ought to keep in mind that the seizure of confidential information which is protected as a privileged communication under the Indian Evidence Act, would violate the right to a fair trial of the persons represented by that lawyer.
Additional Solicitor General Chetan Sharma, representing the Centre, opposed the petition on the pretext of non-disclosure of the name of the advocate at whose premises the search was alleged to have executed.
Plea sought mandatory guidelines for police, investigating agencies
The Public Interest Litigation has been filed by Advocate Nikhil Borwankar, in light of the incidence of search and seizure conducted by police agencies at the office of a lawyer on December 24, 2020. The plea, thereby, seeks direction for framing of mandatory guidelines to be followed by police or investigating agencies in effecting search and seizure operations on the premises of an advocate.
The plea avers that provisions of Section 100 of the Code of Criminal Procedure are insufficient to address the peculiar circumstances of the execution of a search warrant against an advocate, in that it is almost certain that any such search and seizure will inevitably lead to the recovery of privileged information to which the investigating agency may not be entitled ab initio. The plea further avers that any encroachment on the rights of an advocate by the police violates the rights of the persons represented by him 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 and fair trial. “Access to an advocate’s personal and professional digital devices is a grave and egregious violation of privacy of a private citizen and that of a member of the Bar, who is engaged to act for his client,” the plea adds.
The plea states thus: “The present petition is filed at a time when there exists an atmosphere of deep mistrust and acrimony between advocates and law enforcement agencies with regard to recent searches executed against certain advocates representing accused persons and victims in controversial cases, giving rise to the perception of deliberate targeting of individuals and a collapse in the ability of the law and order machinery of the state to pursue justice objectively and without bias.”
The plea prays for issuance of search warrants against advocates only when investigating officer has obtained prior sanction from Director of Prosecutions (DoP); and only when Court issuing search warrant concludes in writing that alternative methods of obtaining information have been considered by the investigating agency, and that such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective. The plea also prays for search warrants issued against advocates be executed in terms of S.103 CrPC wherever practicable; and where not practicable, reasons be recorded by the Magistrate in order issuing warrant, along with the appointment of a “privilege team” comprising law enforcement agents unconnected with the investigation and Bar Council appointed independent advocates to execute search warrants.
In addition, the plea prays for submission of all documents/articles seized directly to the jurisdictional magistrate; and a direction to all participating law enforcement agents to wear clear and visible identification and individual body cameras throughout the execution of the search warrant, with the entire search exercise audio and videographed, which recording (s) be deposited with the jurisdictional Magistrate at the culmination of proceedings. Furthermore, the plea seeks adequate training of law enforcement agencies and Magistracy with regard to the provisions of effecting legal search and seizure.