Sunday, February 5, 2023

Whether Lt. Governor Can Appoint Counsels To Represent Delhi Police Without Consulting Council Of Ministers: Delhi HC Directs Centre & Delhi Govt To File Written Submissions

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The Delhi High Court has today directed Centre and Delhi Government to submit written submissions on the issue of whether Lt. Governor could have appointed SG, ASG and Centre’s counsels to represent Delhi Police in a matter concerning the cancellation of bail, without consulting the Council of Ministers. The court has also vacated the interim order issued by Delhi High Court imposing stay on the release of the accused Faizal Farooq after he was provided bail by the trial court, stating that accused can’t be prejudiced due to the delay caused by this controversy.

During the hearing today, Standing Counsel Rahul Mehra submitted before the Court that the order that has been presented before court is illegal as due process for the appointment wasn’t followed and the Lt. Governor had no authority to appoint them. There are judgements from Constitutional bench of the Supreme Court, and division Bench of Delhi High Court which was later upheld by Supreme Court, according to which LG cannot perform the function of appointing public Prosecutor.

Regarding the judgements, ASG Lekhi stated that it’s a matter of constitutional interpretation and cannot be limited to a few lines of that judgement and every judgement must be read with reference to its facts. While comparing the judgements cited to the present case, he made the following submissions:

  • The judgement of Division Bench of the Supreme Court dated 14th Feb 2019 is not a judgement where a law officer was appearing. Its case in which an advocate was appointed and not a law officer.
  • It was a case where an advocate was appointed for prosecution and our current proceeding is not for prosecution, it’s for cancellation.
  • That case was not a case where the law officers of central govt was appearing or interest of central government were involved.

Lekhi also added that matters which fall outside powers of legislative assembly don’t require consultation of council of ministers. According to him, law officer is a designated senior. Mr Amit Mahajan is the lawyer on record, and the lawyer on record can engage any senior or law officer to appear.

ASG Lekhi submitted before the Court that the division bench judgement only dealt with state government, and didn’t deal with right of central government to make appointment. Central Government has discretion to appoint any lawyer it choses, in matters which are beyond competence of State government, and state government cannot interfere.

Justice Suresh Kumar Kait suggested the issue be heard by an appropriate Bench as it cannot be decided by a single Bench, and the matter be kept pending till then.

Standing counsel Mehra however opposed this, and submitted that the case is before this Court, making it the appropriate court.

“Under which provision have they filed this petition! They have impersonated the state. Can the central government do anything? Are we still in a democracy? The appropriate court today is this court, unless milords don’t want to decide this. All i am saying is right now you have only heard diversionary tactics of the Central Government lawyer. They are not doing any charity here. Everything that Mr Lekhi has stated, all endeavour has been made to move where they have no basis, no leg to stand on. Everything has been looked into by the division and constitution bench in the judgements, maybe they haven’t been looked into in the way Mr Lekhi would want them to be looked into,” Senior standing Counsel Rahul Mehra said.

Power cannot be might, might cannot be a right. With all humility i will show Milords, that centre has no case. This way CrPC will be blown into winds. We’re in a federal country, you cannot enter in these areas– Mehra added.

Standing Counsel for Delhi government also submitted that the Delhi Police isn’t a client. While an ordinary client can pick its lawyer,the Delhi police cannot pick its lawyer.

“God save the criminal jurisprudence and democracy of this country.” he remarked

“They are saying central government has an interest in it. Can they put it on affidavit? What interest can central government have in these FIRs. I didn’t interject because even if absurd arguments are being made, its a counsel’s right to make his case” – Standing Counsel Rahul Mehra.

ASG Lekhi responded to Mr Mehra’s statements by saying that Emotive arguements and hyberbole have place in political arena and not in court of law.

Justice Kait asked counsels for both Centre and Delhi government to be patient and let him dictate his order.

In the order, the Court noted that the present petition was listed on 22 june 2020, and Mr Tushar Mehta made appearance on behalf of petitioner, it was filed by Mr Amit Mahajan appointed by Delhi police with approval of Lt Governor.Standing Counsel Rahul Mehra had entered his appearance and said that CG has no power to file this WP overpassing govt of NCT delhi. The said issue continued till date.

Mr Lekhi  submitted that in the present case, at the request of delhi police, Lt Governor has appointed Advocate Amit Mahajan, and SG Tushar Mehta and ASG Lekhi and other officers in communication dated July 1,2020. Thus, Mr Amit Mahajan has rightly filed present petition, and the law officers of central government have right to appear against order dated June 20 passed by additional sessions judge.

Mr Rahul Mehra, submitted that there are judgements of the High Court and SC, whereby it’s decided that LT government cannot appoint the prosecutor and advocate without aid and advice of COM. In present case, appointment of counsels has been made without aid and advice of COM.

Mr Lekhi submits that order of division bench of SC doesn’t apply, and wish to argue the matter so it can be decided.

The Court directed Counsel for petitioner and Rahul Mehra  to file written submissions with their arguements and judgements, clarifying that they will be for the Court’s benefit and not in the form of an affidavit or a reply.

The Delhi High Court on Wednesday had said that the stay on release of Faisal Farooq would be vacated if Delhi Police Lawyer does not show the permission granted to him by the LG, while hearing the appeal filed by the State challenging the bail granted to Faisal Farooq.

Faisal Farooq, principal of Rajdhani School was arrested by the Police of his involvement in North East Delhi Riots.

The Court had stated that, the counsel who filed the plea did not show any document that he was appointed by the Lieutenant Governor (LG) to represent the probe agency in the matter. The matter was raised up again when Delhi Government Counsel had informed the Court that Central Government has no power to file this petition against the June 20 order of the Trial Court. He had stated that the counsels have to show the grant of authorization to file the plea as the LG can’t approve and give clearance without the aid of the council of ministers of the Delhi government.

Advocate Amit Mahajan, appearing for Delhi Police had submitted that Rajesh Deo, Deputy Commissioner of Police, (Legal), had authorised him to file the plea and he shown the documents to the Court.

The Court had however stated that the DCP does not have such powers to appoint someone without the approval from the Higher Authorities. It also does not show the permission from the LG.

“Without any order or direction, you are filing this petition. If you do not have something, say it. We will pass the orders,” the judge had said expressing displeasure.

In a criminal case, Faisal Farooq, owner of Rajdhani School in Shiv Vihar locality was among the 18 arrested, for alleged involvement in burning and damaging property adjacent DRP convent school.

The Delhi Police had on June 3 filed a charge sheet before the court against Farooq and 17 others in the incident in which the building of a private school was burnt down in North East Delhi.

The trial court, in its bail order, had noted that the charge sheet filed against him in the case was bereft of material showing his alleged links with the Popular Front of India, Pinjra Tod group and Muslim clerics.

The police, in the petition filed through advocates Amit Mahajan and Rajat Nair, have challenged the trial court’s June 20 order granting bail to Farooq on the ground that it was prima facie not established that he was present at the spot at the time of incident.

-India Legal Bureau

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