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Delhi HC defers hearing plea seeking guidelines for search and seizure at advocates’ premises

The Public Interest Litigation has been filed by Advocate Nikhil Borawankar, in light of the incidence of search and seizure conducted by police agencies at the office of a lawyer on December 24’ 2020.

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The Delhi High Court on Wednesday deferred hearing a plea seeking the framing of guidelines to be followed while effecting search and seizure operations at the premises of advocates. 

Additional Solicitor General Chetan Sharma urged the Bench, comprising Chief Justice D.N. Patel and Justice Jyoti Singh, to grant time to file a short response.

Sharma opposed the petition for non-disclosure of the name of the advocate at whose premises the search was alleged to have been executed. “Supreme Court requires PIL to come clean… It can’t be that a PIL is filed upstaging the entire process without proper disclosure,” Sharma said.

The PIL has been filed by Advocate Nikhil Borawankar in light of the search and seizure conducted by police agencies at the office of a lawyer on December 24, 2020. The plea seeks a direction for framing 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 particular 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 submits 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 the 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 the Director of Prosecutions (DoP); and only when the 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 the 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.

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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 the magistracy with regard to the provisions of effecting legal search and seizure. The bench has now listed the matter for hearing on September 3.

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