For the purposes of this argument, you do not have to believe Mehmood Pracha is a saint. You don’t even have to like him.
This is, of course, one of the cardinal rules of criminal law jurisprudence: the accused does not have to be some babe-in-the-woods innocent, for the relevant procedures and law to apply to them.
The protections of the code of criminal procedure, of the right against self-incrimination, of the basic tenet of ‘innocent until proven guilty’ – these apply to all persons in a country where there is a rule of law, no matter how much one may dislike them, or how heinous the crime they are accused of committing.
On top of these protections is another cardinal rule of the legal system: attorney-client privilege. The protection of information conveyed by an accused to their lawyer, even including a confession of their guilt.
There is a reason that these protections exist: .The law is not supposed to punish the innocent.
You may have heard some sort of variation on the lines of “it is better for a 100 guilty men to go free rather than one innocent person to be unfairly punished.” This statement, trite though it may seem, idealistic though it may seem, is an essential feature for a society which has any pretensions of being more than just a mob.
This is because every person has the right to life and personal liberty – enshrined in India in Article 21 of the Constitution – which can only be taken away according to a procedure established by law.
If this were not the case, there would be no meaning to the right to liberty, as the state would be able to put away anyone it liked without even bothering to have any evidence, or by torturing confessions out of them, and by not giving them a chance to defend themselves.
While anyone acquainted with our criminal justice system will tell you that these things happen all the time, there is a difference between that happening because of a gap between the ideals and reality, and because it is being done by design.
It is in light of these considerations that the Delhi Police’s raid on advocate Mehmood Pracha’s office on Thursday, 24 December, is so concerning.
The Police’s Case Against Pracha
The raid on Pracha’s office began at around 12:30 pm, and lasted long into the night. The police entered the lawyer’s office, seized his computer and laptop, and searched his premises for “incriminating documents”.
Pracha is a longstanding advocate based in Delhi who is representing several of those accused of being part of the ‘larger conspiracy’ behind the Delhi riots in February. He also represented Bhim Army chief Chandrashekhar Azad when he was arrested by the police during the anti-CAA protests last year, and had been part of a press conference with Azad where they both spoke out about why the CAA was unconstitutional.
The Delhi Police’s special cell has accused Pracha of tutoring a witness and forging a document in connection with one of the Delhi riots cases (regarding the burning down of a mattress shop).
An FIR regarding these allegations had been registered by them back in August, based on the complaint of one Sharif Malik, who claims that Pracha told the owner of the destroyed shop to get Malik as a witness for his case. The police claim that Malik’s statement given along with the shop owner’s is ‘false and concocted’, and that Pracha forged a notary stamp on an official document using the name and stamp of a notary who had been dead for several years.
According to the Indian Express, the shop owner had filed a complaint over the fact that the Delhi Police were targeting random Muslim accused for the burning of his shop rather than people whose names he had of the arsonists. The shop owner also reportedly says that Pracha never told him to approach Malik for a statement.
All the original Muslim accused in the case have received bail in the case relating to the shop, with the lower courts noting that there was no evidence putting them at the scene of the crime. Malik himself has been accused of rioting and attempt to murder during the violence in February, but was able to get anticipatory bail after the police declined to contest his request for the same, the Indian Express notes.
Problems With the Raid
One of the first questions to ask at this point is why there was even a need for a raid on Pracha’s office for these two limited allegations. If Malik had given a statement and provided details of the communications by Pracha and the shop owner, there wouldn’t even necessarily be a need for the police to raid Pracha’s offices and seize his equipment – the police already had more than enough evidence for their case.
Assuming that there was some sort of need to get information from Pracha’s computers, the information in question would have to be limited to the particular claims here. And in fact, the search warrant provided to the Delhi Police actually makes that quite clear.
The warrant, accessed by The Quint, says that it authorises the investigating officer to
“search for the said incriminating documents and meta data of out box of email id [used to communicate with Malik]... wherever they may be found whether in computer or in the the office/premise of Sh. Mehmood Pracha ... including outbox of email ID ... and, if found, to produce the same forthwith before this Court, returning this warrant with an endorsement certifying what you have done under it, immediately upon its execution.”
Once the police had access to Pracha’s computers at his office, they could have easily extracted the information in question without having to seize the actual computers themselves. This would have ensured that they complied with the terms of the warrant itself, and didn’t allow a fishing expedition on Pracha’s computers for other information.
Instead, by seizing the computers, the police now have the ability to seize information which was not the subject of the warrant, information which has nothing to do with the case at hand.
The overreach by the police in terms of their own warrant has been noted with concern by the Bar Association of India, which notes that the police have seized and copied data off not just Pracha’s office computers but his personal devices as well. The rules that govern warrants and search procedures are essential aspects of criminal law jurisprudence, and a failure to comply with these in terms of Pracha as an accused in the case against him.
Breach of Attorney-Client Privilege and the Delhi Riots Cases
Even more dangerous, however, is the way in which the Delhi Police’s actions violate the attorney-client privilege of Pracha’s other clients. All communications and documents pertaining to those clients – including defence strategies, communications about their guilt/innocence, are all now available to the police and thereby the prosecuting authorities.
This makes a mockery of the right to a fair trial, where the burden of proof is on the prosecution to prove the guilt of the accused beyond reasonable doubt. The Delhi riots cases are a good example to understand this.
The Delhi Police’s claims about the Delhi riots cases are already controversial enough, particularly their allegations that anti-CAA protesters orchestrated a grand conspiracy to defame the Modi government.
Setting aside questions about the validity of this overarching narrative, the Delhi Police have seen themselves taken to task time and again by the courts over shoddy investigations and arrests of accused without sufficient evidence to back up the claims against them, as noted in some detail by Manu Sebastian for Live Law.
- These include the Delhi High Court’s grant of bail to SIM card seller Faizan Khan, who had been booked as part of the grand claims of a conspiracy to commit terrorist acts under the UAPA, all for selling a SIM card to someone in December 2019, who has eventually been implicated in the police’s narrative.
- The high court has also questioned the use of police constables as eye-witnesses, even going so far as to say that some of them seemed to have been planted, and asked why Devangana Kalita had been implicated in a specific riots case when the police had no material to show anything beyond peaceful agitation.
- The lower courts have also found that there was non-application of mind when it came to the chargesheeting of ‘United Against Hate’ activist Khalid Saifi in one of the cases, saying it went “to the extent of vindictiveness”, raised issues about the selection of accused from large indistinguishable mobs, and even noted that the video evidence produced by the court to implicate an accused in one case wasn’t even from the date of the alleged crime.
The pointing out of these flaws in the police investigation, has largely come from the arguments raised by defence lawyers for the accused in these cases, who have painstakingly pored over the evidence and discovered them, leading to bail and other favourable orders for the accused from the courts.
The seizure of the computers of someone like Pracha who is representing many of these accused, has serious consequences.
If the police can now access the materials of the accused’s lawyers, it will make it possible for them to cover up these kind of flaws and get away with even more shoddy investigations and wrongful arrests.
It allows them to access materials which they otherwise might not have had and try to twist those to fit their own narratives, and also gives them access to people connected to the accused and the witnesses in the case, who can then be leaned on. It allows them to portray legitimate lines of communication as proof of conspiracies and wrongdoing (which is already a key concern in the Delhi riots cases).
All of this, without having to do their job of actually conducting a fair and impartial investigation.
If this kind of action – raiding a lawyer’s office on the pretext of a case and then going far beyond the stated objectives of the search warrant – becomes legitimised, what is to stop the police from doing this against all lawyers representing politically sensitive accused?
There is no other way to describe this other than a breakdown of the rule of law and the shredding of the criminal justice system. And so, whether you think Pracha is innocent or guilty in the case against him, whether you like him or dislike him – the actions of the Delhi Police should be of grave concern to us all.
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