26 March 2021 8:37 AM GMT
A Delhi Court on Friday disposed off Advocate Mehmood Pracha's application challenging Delhi Police Special Cell's second raid after observing that the objections raised by him are baseless.Chief Metropolitan Magistrate Pankaj Sharma ordered thus:"The plea of the applicant about his offer of target data in Pen drive can only be considered by the IO subject to the issue of admissibility...
A Delhi Court on Friday disposed off Advocate Mehmood Pracha's application challenging Delhi Police Special Cell's second raid after observing that the objections raised by him are baseless.
Chief Metropolitan Magistrate Pankaj Sharma ordered thus:
"The plea of the applicant about his offer of target data in Pen drive can only be considered by the IO subject to the issue of admissibility and 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 applicant are baseless. Let the search warrant be executed in accordance with law subject to the safeguards as per the expert opinion."
Observing that the collection of evidence is intrinsic to the investigation and hands of the investigators cannot be tied to prevent them from Collecting Evidence, the Court held that:
"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."
On the issue of reliance under sec. 126 of the Indian Evidence Act (attorney client privilege) and Bar Council Conduct Rules, the Court observed that such a reliance was misplaced as same envisages voluntary sharing of data /communication by the Advocate or deposing against the client.
"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 observed.
The Court accepted the stand taken by the Delhi police that by use of forensic tools, it is possible to safely segregate the "target data" from other data, while keeping its authenticity and integrity.
The Court had reserved the orders on the application on Tuesday after hearing Advocate Pracha and Advocate RK Wadhwa, President of the New Delhi Bar Association who took strong objections while representing the Bar on Delhi Police's raids.
According to Advocate RK Wadhwa, it was submitted that the act of raiding the premises of lawyers was unacceptable and illegal as the same goes in violation of the privacy and their attorney client privilege which is not only the legal but also a moral obligation on them.
Objecting to the submissions made by Adv. Wadhwa, the SPP Amit Prasad submitted before the Court that the lawyers cannot be dealt with as a special category which can be offered a special treatment as against the others.
Earlier, Special Public Prosecutor Amit Prasad told the Court that the protection under Sec. 126 of the Indian Evidence Act (on attorney-client privilege) cannot extend to Sec. 93 of CrPC (which deals with search warrants). He also submitted that Pracha's application was limiting the scope of investigation and that the classification created does not fall within the permit of law and is in violation of Art. of the Constitution of India. In view of this, the SPP also urged the Court to vacate the stay on the search.
The Court had sought the response of the Investigating Officer on how it proposes to receive the "target data" of the pen drive without creating any evidentiary vulnerability and without any alteration or disclosure to other data relating to Mr. Pracha's clients.
The Court vide order dated 10th March 2021 stayed the operation of the search warrant issued by the Delhi Police's Special Cell against Mehmood Pracha till the pendency of his application.
The Court on earlier occasion opined that the issue of retrieval of target data without interference with the other data stored in the hard disk has to be meticulously looked upon and at the same time, obtaining target data without creating any evidentiary vulnerabilities to future purpose has to be considered because it is important for the IO to maintain authenticity and integrity of target data.
Advocate Mehmood Pracha moved the application against the second raid conducted by the Special Cell in his office on 9th March, thereby calling the whole exercise as "completely illegal and unjustified". Pracha has been representing many accused persons in the Delhi Riots conspiracy cases that broke out in February last year.
While alleging that the sole objective of conducting the second raid was to illegally steal the entire data of the sensitive cases he has been dealing with, Pracha in his application contended that he is going to the extent of risking self-implication even in derogation of his Fundamental Right only for the sake of protecting the data and information pertaining to his clients and briefs which he is duty bound to protect as an advocate.
During the previous proceedings, Advocate Pracha had submitted in the Court that:
"It is my fundamental and constitutional right to protect the interest of my clients. To save their integrity. They have deliberately put my and my clients 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."
"I am offering my neck to save my clients life. I am willing to face Gallows for protecting my clients 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." Advocate Mehmood Pracha had submitted.
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