- The premises of Advocate Mehmood Pracha were being raided.
- Such raid was on the premise of an FIR lodged against him.
- The FIR was in connection with allegations on him to be involved in tutoring a witness in order to initiate a false riots case in North east Delhi on February, 2020.
- The Advocate has expressed concerns about the chances of attorney-client privilege getting violated due to such a raid.
- He pleaded that only the relevant portions of his hard-disk be retrieved in connection to such investigation
- The matter is scheduled to be heard by the Delhi Sessions Court on the 27th of March.
A Delhi sessions court, while hearing a plea by Advocate Mehmood Pracha, who sought from the court to issue directions the police to retrieve only relevant information from his hard disk as evidence, said “Hands of investigators cannot be tied to prevent them from collecting evidence.” "The collection of data from its source is done to ensure its admissibility during trial and it is imperative for IO to collect best form of evidence during investigation as per their own discretion," the Court said. The court had, on the 10th of March, ordered for a stay in the operation of the search warrants issued against Pracha in this matter.
The Advocate had allegedly tutored a witness while representing some of the accused in the northeast Delhi riots which took place in the month of February, 2020. The investigation by the Delhi Police was based on an FIR which alleged that such advocate had tutored a witness to initiate a fabricated riots case.
The Sessions Court was moved by Advocate Mehmood Pracha on the 26th of March against an order refusing to interfere with such raids conducted at his office by the Police as had been passed by the lower court. He had moved the court over concerns regarding the protection of the privacy of the data pertaining to his other clients that had been preserved by him in his hard drive that the Police intended to check for evidence regarding the allegation. He sought that the Police only retrieved the relevant data with regard to the allegation against him.
Advocate Mehmood Pracha called the second raid conducted in his office by the Special Cell Police on the 9th of March to have been "completely illegal and unjustified." Such investigation stemmed from the FIR lodged against Pracha due to his representing many of the accused persons in the Delhi Riots conspiracy cases that broke out in the eastern parts of the Union Territory in the month of February last year.
Pankaj Sharma, the Chief Metropolitan Magistrate, observed that "The court's intervention is not proper and also accused cannot dictate the IO about the mode and manner for collection of evidence in an investigation. Accordingly, in the considered view of this court, the objections raised by the applicant (Pracha) are baseless." The Magistrate Court further stated that the plea of the Advocate for the non-sharing of data of his other clients was beyond the scope of privileged communication prescribed under Section 126 of the Indian Evidence Act.
"However, the situation is different in this matter as the data is to be collected by the police on account of investigation in a criminal case. The plea for non-sharing of data of other clients of the applicant is beyond the scope of sec. 126 of Indian Evidence Act", the court held in matters concerning attorney-client privilege.
"It is my fundamental and constitutional right to protect the interest of my clients. To save their integrity. They have deliberately put me and my client’s life under threat. This is also sensitive data. They want to act under their political masters. I cannot give such data. If you want to hang me, do it. But I cannot sacrifice my attorney privilege communication," the Advocate said to the Court.
He further said that, "I am offering my neck to save my clients life. I am willing to face Gallows for protecting my client’s life. I am ready to be the lamb. Tell your political masters to hang me. But I will not let them harm my life. Come what may."
RK Wadhwa, President of the Patiala House Court Bar Association, strongly opposed the act of raiding the premises of lawyers and termed it as unacceptable and illegal. In his opinion, it not only causes violation of the privacy of the clients and the attorney client privilege, but also challenges the moral obligation of an advocate.
He suggested during the hearing, of a local commissioner who may be appointed to ensure the prevention of any tampering of evidence as was feared by the Advocate. Such local commissioner could be entrusted with the responsibility of sealing the computer/laptop containing such data sought by the Delhi Police as part of the investigation.
Additional Sessions Judge Dharmender Rana , on the 26th said that, "I have no reason to disagree with you but I will pass an order only after hearing them."
"The objections raised by the applicant are baseless. Let the search warrant be executed in accordance with law subject to safeguards as per expect opinion", the Court had stated in its order.
"The collection of evidence is intrinsic to the investigation and hands of the investigators cannot be tied to prevent them from collecting evidence. The collection of data from its source is done to ensure its admissibility during the trial and it is imperative for the IO to collect the best form of evidence during the investigation as per its own discretion.” “If the IO feels that 'target data' is to be retrieved from its source which is hard drive of the computer of the applicant for the purpose of investigation, the decision of the IO cannot be interfered with by the court nor accused can dictate him as to how evidence is to be collected if it is clear that the other data can be protected from being interfered with by the IO," the court further said in its order dated 25th March, 2021.
The sessions court was moved by the Advocate against such order of the Magistrate Court.
The plea was based on the observation of the Advocate that the provisions of the Information Technology Act did not differentiate between a soft copy and hard copy of materials.
His plea further sought directions from the court so that the data to be retrieved by the police for such investigation to be so retrieved presence of a magistrate so as to protect the interest of the clients.
The Advocate accused the system of conducting such subsequent raid with the sole objective of stealing data of the sensitive cases he has been dealing with currently. He commented, "They want to threaten my clients. That's their purpose. In the main Delhi riots cases, they say soft copy is equal to hard copy and we would not give hard copy of charge sheet. Here they don't want a soft copy."
The matter is scheduled to be heard by the Delhi Sessions Court on the 27th of March.